The following is a summary of certain considerations associated with the holding of Ordinary Shares by an “employee benefit plan” (within the meaning of Section 3(3) of ERISA) that is subject to Title I of ERISA, a plan, individual retirement account or other arrangement that is subject to Section 4975 of the U.S. tax code or provisions under any Similar Law, and entities whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”). This summary is general in nature and is not intended to be all-inclusive. Due to the complexity of these rules and the penalties that may be imposed upon persons involved in non-exempt prohibited transactions, it is particularly important that fiduciaries, or other persons considering holding Ordinary Shares on behalf of, or with the assets of, any employee benefit plan, consult with their counsel to determine whether such employee benefit plan is subject to Title I of ERISA, Section 4975 of the Code or any similar Laws.
Section 3(42) of ERISA provides that the term “plan assets” has the meaning assigned to it by such regulations as the U.S. department of Labor (the “Department”) may prescribe, except that under such regulations the assets of any entity shall not be treated as plan assets if, immediately after the most recent acquisition of any equity interest in the entity, less than 25% of the total value of each class of equity is held by benefit plan investors. The Department has prescribed regulations (the “Plan Asset Regulations”) that generally provide that when a plan subject to Title I of ERISA or Section 4975 of the U.S. tax code (an “ERISA Plan”) acquires an equity interest in an entity that is neither a “publicly-offered security” (as defined in the Plan Asset Regulations) nor a security issued by an investment company registered under the U.S. Investment Company Act, the ERISA Plan’s assets include both the equity interest and an undivided interest in each of the underlying assets of the entity unless it is established either that equity participation in the entity by “benefit plan investors” is not significant or that the entity is an “operating company”, in each case as defined in the Plan Asset Regulations. For purposes of the Plan Asset Regulations, equity in participation in an entity by benefit plan investors will not be significant if they hold, in the aggregate, less than 25% of the total value of any class of equity interests of such entity, excluding equity interests held by any person (other than a benefit plan investor) who has discretionary authority or control with respect to the assets of the entity or who provides investment advice for a fee (direct or indirect) with respect to such assets, and any affiliates of such person. Section 3(42) of ERISA provides, in effect, that for purposes of the Plan Asset Regulations, the term “benefit plan investor” means an ERISA Plan or an entity whose underlying assets are deemed to include “plan assets” under the Plan Asset Regulations (for example, an entity 25% or more of the total value of any class of equity interests of which is held by benefit plan investors and which does not satisfy another exception under the Plan Asset Regulations).
It is communicated that (i) Ordinary Shares issued by the Company do not constitute “publicly offered securities” for purposes of the Plan Asset Regulations, (ii) the Company will not be an investment company registered under the U.S. Investment Company Act and (iii) the Company will not qualify as a real estate operating company within the meaning of the Plan Asset Regulations. As the Company only relies on the information provided by the shareholders, no assurance can be given than investment by benefit plan investors in the Ordinary Shares will not be “significant” for purposes of the Plan Asset Regulations.
Pursuant to the bylaws of the Company, any shareholder that, as an investor, is subject in its jurisdiction to any kind of special legal framework in relation to pension funds or benefits plans (“benefit plans” such as ERISA) must notify such circumstance to the board of directors as soon as practicable.
Likewise, any shareholder that is subject to the situation described in the previous paragraph must notify to the board of directors as soon as practicable any subsequent acquisition or transfer of shares of the Company, regardless of the number of shares acquired or transferred.
So far, according to the information provided to the Company, the percentage of shares held by benefit plan investors is below the significant threshold established under the relevant legislation applicable to this type of investors. In case that the percentage of shares held by benefit plan investors exceeded such thresholds, the board of directors would indicate the required measures in order to amend the situation.
For further information, please contact Investor Relations.
- Axiare Patrimonio Investor Relations
- Edificio Beatriz
- José Ortega y Gasset 29, 5ª Floor
- 28006 Madrid
- T: +34 91 431 93 17