PRESS RELEASE: BIGBEN: Distribution in kind of Nacon shares
Bigben
Press release
Lesquin,17 June 2022, 18:00hrs
Distribution in kind
of Nacon shares
BIGBEN INTERACTIVE ("BBI" or the
"Company") informs its shareholders of the technical details of the
exceptional distribution in kind of NACON shares
("Nacon").
The Board of Directors of BBI will
propose to its shareholders, at the
annual general meeting convened for
22 July
2022 (the "General Meeting"), to approve
– in addition to a
standard distribution of
a cash dividend of EUR
0.30
per share
- a distribution in kind in the form of Nacon
shares at the rate of one (1) Nacon share for every
four
(4) BBI shares held, the
terms and conditions of which are described below.
This distribution in kind of Nacon
shares will be paid on 29
July 2022.
The Nacon shares so distributed would
represent approximately 5.4% of the capital and voting rights of
Nacon.
Following this transaction, BBI will
retain 56,575,0501
Nacon shares, representing approximately 65.54% of the
share capital and 75.12% of the voting
rights2.
BBI shareholders are invited to refer to the
2021 universal registration document filed with the Autorité des
Marchés Financiers on July 6, 2021 under number R. 21-0037 and to
the press releases published by Nacon since that date for all
information relating to Nacon. These documents are available on
Nacon's website
(https://corporate.nacongaming.com/espace-investisseurs/).This
press release does not constitute (i) an offer to sell or subscribe
for, or the solicitation of an offer to acquire or subscribe for,
any shares of Nacon, or (ii) a solicitation to obtain consent or a
favourable vote to approve the distribution described in this press
release, including in any jurisdiction where such solicitation is
not permitted under the laws of that country or territory.
* * *
United States of America
No shares, securities or other instruments may
be offered, sold or transferred in the United States of America
unless they are registered or exempt from registration under the
U.S. Securities Act of 1933, as amended. The Nacon shares that are
the subject of the In-Kind Distribution have not been and will not
be registered in the United States of America under the U.S.
Securities Act of 1933, as amended, and the In-Kind Distribution
has not been approved or disapproved by the U.S. Securities and
Exchange Commission (SEC) or any other state securities commission
in the United States of America, and neither such commissions nor
the SEC has reviewed the accuracy or adequacy of this report. Any
representation to the contrary may be a criminal offense in the
United States of America.
Member States of the European Economic
Area
This report does not constitute a prospectus or
any other offering document within the meaning of Regulation (EU)
2017/1129 (as amended) and should not be relied upon as containing
all the information necessary for a potential investor to evaluate
the suitability of an investment in BBI or Nacon or to be included
in a prospectus prepared in accordance with the provisions of
Regulation (EU) 2017/1129 (as amended).
* * *
1 of which 3,555,937 Nacon shares were loaned to
BNP Paribas for hedging purposes in connection with the bond issued
by Bigben Interactive (please refer to note 2.2.4 of the notes to
the consolidated financial statements in the universal registration
document filed by Bigben Interactive on 6 July 2021 with the
Autorité des Marchés Financiers under number D.21-0687).2 based on
the number of shares and voting rights making up Nacon's capital at
31 May 2022.
1. 2. TERMS AND
CONDITIONS OF THE DISTRIBUTION IN KIND
1.1 Features
of the Distribution in Kind
BBI holds 61,244,6661 Nacon shares,
representing, based on the number of shares and voting rights
comprising Nacon's share capital as at 31 May 2022, 70.97% of the
share capital and 79.12% of the voting rights. The shares making up
the share capital of Nacon are ordinary shares, all of the same
class, fully paid up, and admitted to trading on the Euronext Paris
regulated market under ISIN code FR0013482791.
In addition to the distribution of an annual
ordinary dividend of €0.30 per share in cash (the "Ordinary
Dividend"), At the General Meeting, BBI shareholders will
be asked at the Annual General Meeting to vote on a distribution in
kind represented by Nacon shares up to a maximum of one (1) Nacon
share for every four (4) BBI shares held, subject to the Ceiling
(as defined below) (the "Distribution in
Kind").
Based on the information available as at 31 May
2022, the Distribution in Kind would therefore relate to
approximately 4,669,616 Nacon shares (out of the 61,244,666 Nacon
shares held by BBI as at that date, representing 7.6% of the Nacon
shares held by BBI). Upon completion of the Distribution in Kind,
assuming no adjustment of the exchange ratio of one (1) Nacon share
for every four (4) BBI shares held, BBI will retain 56,575,050
Nacon shares, representing 65.54%2 of the share capital and 75.12%
of the voting rights.
The Distribution in Kind is scheduled to be paid
on 29 July 2022 (the "Payment Day"), with ex-date
on 27 July 2022.
The Distribution in Kind will benefit all BBI
shareholders whose shares have been registered in their name at the
end of the trading day preceding the Payment Day i.e. on 28 July
2022 (“the "Persons Entitled to the Distribution in
Kind"). Purchases of BBI shares made on Euronext until and
including 26 July 2022 will be eligible for the Distribution in
Kind (the "Record Date").
In the event of a division of the ownership of
Nacon shares, the beneficiary of the Distribution in Kind will be
the bare owner (nu-propriétaire), unless otherwise agreed.
Shareholders are advised to consult their usual advisor on these
matters.
BBI shares held in treasury by the Company on
the Position Determination Date will not be entitled to the
Distribution in Kind.
The amount corresponding to the Distribution in
Kind
(i) will be
determined by multiplying the number of Nacon shares distributed
(whether delivered to BBI shareholders or sold as fractional
shares) by the opening price of Nacon shares on the Payment
Date;(ii) will be charged in
priority to "Other Available Reserves" and, for any surplus, to
"Additional paid-in capital" and "Share premium", it being
specified that it will be proposed to the General Meeting to
allocate all "Retained Earnings", less the sums deducted from this
account to pay the Ordinary Dividend, to "Other Available Reserves"
prior to the payment of the Distribution in Kind,
and(iii) may not exceed the
amount of the net income for the financial year ended 31 March 2022
and retained earnings, increased by the amount of distributable
reserves and premiums, in accordance with applicable laws and
regulations, and decreased by the total amount of the Ordinary
Dividend, which will be deducted in priority from the net income
for the financial year ended 31 March 2022 and retained earnings,
i.e. a total net amount estimated at EUR 50,786,949 (the
"Ceiling").In the event that the amount of the
Distribution in Kind exceeds the Ceiling, the Board of Directors of
BBI shall have full powers to adjust the above-mentioned parity so
that the amount distributed does not exceed the Ceiling; this would
be the case, on the basis of a maximum distributable amount of EUR
50,786,949 and assuming that approximately 4,669,616 Nacon shares
would be distributed, if the opening price of the Nacon share on
the Payment Date exceeds EUR 10.88.
3 of which 3,555,937 Nacon shares were loaned on
12 February 2021 to BNP Paribas for hedging purposes in connection
with the bond issued by BBI (see Note 2.2.4 of the notes to the
consolidated financial statements in the universal registration
document filed by BBI on 6 July 2021 with the Autorité des Marchés
Financiers under number D21-0687). 4 This number is obtained by
multiplying the number of BBI shares entitled to the Distribution
in Kind, i.e. 18,678,467 BBI shares (18,699,733 shares making up
BBI's share capital, less 21,266 treasury shares), by the
distribution ratio, i.e. 1 Nacon share for every 4 BBI shares, and
assuming the theoretical absence of fractional shares. 5 on the
basis of the number of shares and voting rights making up Nacon's
capital at 31 May 2022
BBI will issue a press release on the morning of
the Payment Date, once the opening price of the Nacon shares is
ascertained, to confirm the parity chosen for the Distribution in
Kind and, in the event of an adjustment of the parity, to inform
shareholders of any potential changes to the timing of the
Distribution in Kind.
Rights forming fractional shares shall not be
tradable or assignable. Accordingly, if the allocation to which a
shareholder is entitled by application of the parity retained is
not a whole number of Nacon shares (i.e. a holding of BBI shares of
less than four (4) or not corresponding to a multiple of four (4)),
the shareholder shall receive the number of Nacon shares
immediately below this amount, together with a cash payment for the
balance, the amount of which will be calculated on the basis of the
price at which the Nacon shares corresponding to the fractional
shares will have been sold. Shareholders holding less than four (4)
BBI shares on the evening of the Record Date will therefore solely
receive a cash payment.
For illustrative purposes only and assuming a
theoretical opening price of the Nacon share of EUR 5.741:
- a shareholder holding 3 BBI shares would not
receive any Nacon shares but only a balancing payment, the amount
of which will depend on the date on which the Centralising Bank or
its financial institution, as the case may be, sells the fractional
shares to which it is entitled, and
- a shareholder holding 5 BBI shares would
receive one (1) Nacon share and, for the balance, a balancing
payment, the amount of which will depend on the date on which the
Centralising Bank or its financial institution, as the case may be,
sells the fractional shares to which it is entitled.
1.2
Timetable for the Distribution in Kind
The indicative timetable for the Distribution in
Kind is as follows:
17 June 2022 |
Publication of the first notice (avis de reunion) in the BALO
(French official bulletin of legal notices) convening the Combined
Shareholders’ Meeting of BBI |
6 July 2022 |
Publication in BALO of the second notice (avis de convocation) in
the BALO convening the Combined Shareholders’ Meeting of BBI |
20 July 2022 |
Start of the suspension period of the liquidity agreement |
22 July 2022 |
Combined Shareholders’ Meeting of BBI |
27 July 2022 |
Ex-date of the distribution in kind |
28 July 2022 |
Record date of the distribution in kind |
29 July 2022 |
Pay date of the distribution in kindEnd of the suspension period of
the liquidity agreement |
3. PAYMENT OF THE
DISTRIBUTION IN KINDThe payment of the
Distribution in Kind will take place as from the Payment Date, i.e.
29 July 2022, under the conditions specified below.
The bank responsible for the centralizing the
transactions in connection with the Distribution in Kind (the
"Centralising Bank") is BNP
Paribas Securities Services, 9 rue du Débarcadère - 93761 Pantin
Cedex.
For the Beneficiaries entitled to the
Distribution in Kind who hold BBI shares in bearer or administered
registered form:- the Centralising Bank will credit, via Euroclear
France, each financial institution holding an account (i) on the
Payment Date, the whole number of Nacon shares corresponding to its
position in BBI shares duly registered with Euroclear France at the
end of the Record Date, by applying the parity of one (1) Nacon
share for every four (4) BBI shares registered in the account of
the financial institution holding the relevant account and (ii) the
amount of the cash balance payment due to this financial
institution holding the account, as from the sale of the Nacon
shares corresponding to the fractional shares after the
distribution between the financial institutions holding the Nacon
shares corresponding to multiples of four (4) BBI shares;
6 The theoretical share price used for the above
examples (i.e. EUR 5.74 per Nacon share) is the closing price of
Nacon shares on 31 May 2022.
- Following which, each of the account-holding
financial institutions will credit each of its clients first with
(i) the whole number of Nacon shares corresponding to multiples of
four (4) BBI shares registered in its books in the name of the
client concerned and then (ii) the amount of the cash balance due
to this client, the amount of which will be based on the sale price
of the shares corresponding to the fractional shares after the
distribution of Nacon shares corresponding to multiples of four (4)
BBI shares between its clients.
For the Beneficiaries of the Distribution in
Kind holding their BBI shares in the issuer registered form:
- the Centralising Bank, acting as financial
institution in charge of keeping the register of issuer registered
shareholders, will (i) credit, as from the Payment Date, the
account of each of the Beneficiaries of the Distribution in Kind
holding issuer registered BBI shares with the Nacon shares
corresponding to multiples of four (4) BBI shares held in issuer
registered form by the Beneficiary concerned and (ii) credit the
account of the Beneficiary with the Nacon shares corresponding to
multiples of four (4) BBI shares, as from the sale of the shares
corresponding to the fractional shares, the account of each of the
concerned Beneficial Owners of the Distribution in Kind of the net
amount of the balancing payment due to him/her, if any, the amount
of which will be based on the sale price of the shares
corresponding to the fractional shares after the distribution
between the Beneficial Owners of the Nacon shares corresponding to
multiples of four (4) BBI shares.
The Beneficiaries of the Distribution in Kind,
regardless of whether the BBI shares are held in bearer or
administered registered form, must pay, as the case may be, to
their authorised financial intermediary or to BBI, through BNP
Paribas Securities Services, the social security deductions and/or
the non-dischargeable deduction or withholding tax payable in
respect of the Distribution in Kind. Where applicable, the
authorised financial intermediary responsible for maintaining the
bearer or administered registered share accounts or BBI, through
BNP Paribas Securities Services, responsible for maintaining the
issuer registered share accounts, may sell the number of Nacon
shares necessary to pay the social security contributions and/or
the withholding tax due in respect of the Distribution in Kind.
Shareholders who wish to sell the Nacon shares
received under the Distribution in Kind should contact their usual
financial advisor and/or their financial institution holding the
account.
4. TAX TREATMENT OF THE
DISTRIBUTION IN KIND1The following
discussion summarizes the French tax consequences that may apply to
BBI's shareholders as a result of the Distribution in Kind, based
on the legislation in force at this time. The rules described below
are subject to change and new laws or regulations could be
retroactive or apply to the current calendar or fiscal year.
BBI's shareholders are advised that the tax
information contained in this Section 3 is only a summary of the
tax provisions applicable under current legislation and is provided
for general information purposes only. Accordingly, the tax
information below does not constitute a comprehensive description
of all tax impacts that may apply to BBI's shareholders as a result
of the Distribution in Kind.
BBI’s shareholders are advised to consult their
usual tax advisor on the tax consequences in light of their
particular circumstances.
In addition, persons who are not French tax
residents must refer to (i) the provisions of the applicable tax
treaty concluded between their own State of residence and France;
(ii) the provisions of French tax legislation; and (iii) the
legislation of their State of residence and/or nationality that may
apply to them so that they may determine their applicable tax
regime. These persons should seek advice from their usual tax
advisor regarding the applicable tax treatment for the Distribution
in Kind.
A portion of the Distribution in Kind will
correspond, from a tax point of view, to a reimbursement of a
contribution. In light of the provisions of Article 112 of the
French General Tax Code ("CGI"), using the closing price of the
Nacon share on May 31, 2022, i.e. EUR 5.74, as a basis for
calculation, and in light of the analysis of the composition of
BBI's shareholders' equity as of the date of the Distribution in
Kind, this portion should be approximately 23.88% of the value of
the Distribution in Kind.
Thus, BBI will indicate, in a press release to
be published on the Payment Date, the allocation of the
Distribution in Kind from a tax point of view between, on the one
hand, a distribution of income from transferable securities (a
priori the share of the Distribution in Kind charged to the "Other
reserves" and "Merger premiums" items) and, on the other hand a
reimbursement of a contribution (a priori the share of the
Distribution in Kind charged to the items "Contribution Premiums"
and "Share Premiums"), which reimbursement will not be considered
as a distribution of income and will therefore not be subject to
French withholding tax by the paying institution of the
Distribution in Kind or to French withholding tax.
7 Share fractions will be subject to the same
tax regime as specified here
4.1. Shareholders
with a tax residence in
France4.1.1. Natural persons
holding BBI shares as part of their private assets and not carrying
out stock market transactions under conditions similar to those
characterizing an activity carried out by a person professionally
engaged in such transactions
4.1.1.1. 12.8%
withholding taxPursuant to Article 117-quater of the CGI, subject
to the exceptions mentioned below, natural persons domiciled in
France are subject to a mandatory 12.8% PFNL
non-final withholding tax on the gross amount of distributed
income.
This withholding is made by the paying agent of
the income if it is located in France.
When the paying agent of the income is
established outside of France, the income is declared and the
corresponding withholding tax is paid within the first 15 days of
the month following the month of the payment of the income, either
by the taxpayer him/herself or by the paying agent, when that
entity is established in a Member State of the European
Union or in another Member State of the European
Economic Area Agreement that has entered into an administrative
assistance agreement with France to combat tax evasion and tax
fraud and has received instructions to this effect by the taxpayer.
BBI shareholders who find themselves in this situation should
contact their financial intermediary to find out what processes
they will put into place in this respect.
Natural persons belonging to a tax household
whose reference taxable income (revenu fiscal de référence) for the
second-to-last tax year, as defined in 1° of IV of Article 1417 of
the CGI, is lower than EUR 50,000 for taxpayers who are single,
divorced or widowed, or EUR 75,000 for couples filing jointly, may
request an exemption from this withholding under the terms and
conditions of Article 242-quarter of the CGI by providing to the
paying agent no later than November 30 of the year preceding the
year of the payment of the distributed income a sworn statement
that the reference taxable income shown on the tax notice issued in
respect of the second-to-last year preceding the year of payment
was below the above-mentioned taxable income thresholds.
When the paying agent is established outside
France, only natural persons belonging to a tax household whose
reference taxable income for the penultimate year, as defined in 1°
of IV of Article 1417 of the CGI, is equal to or greater than the
amounts mentioned in the previous paragraph are subject to this
tax.
The withholding tax does not apply to income
related to securities held in French share savings plans (Plan
d’Epargne en Actions, “PEA”).
1.1.1.2. Income
taxThe final taxation of dividends is determined based on the
information reported in the income tax return filed the year
following the year in which the dividend income is received.
Pursuant to 1 of the Article 200 A of the CGI,
dividends are, in principle, subject to the 12.8% single flat rate
withholding tax (prélèvement forfaitaire unique,
“PFU”).
Pursuant to Article 193 of the CGI, the 12.8%
PFNL non-final withholding tax may be credited against the income
tax due in respect of the year in which it was paid. Where it
exceeds the income tax due, the surplus is refunded.
In practice, the alignment of the current PFU
and PFNL rates at 12.8% is equivalent to paying withholding tax at
source.
Pursuant to Article 200 A2. of the CGI, by way
of derogation from the application of the PFU, taxpayers wishing to
do so, may, upon express, global and irrevocable election be
subject to the progressive scale of income tax.
Under Article 158 of the CGI, dividends must be
included in the shareholder's global taxable income as portfolio
income (revenu de capitaux mobiliers) in respect of the year during
which they are received. The election is exercised each year when
filing the tax return and no later than the filing deadline. The
dividends are then subject to income tax under the progressive
scale and benefit from an unlimited tax allowance of 40% on the
amount of distributed income (“40% Allowance”).
The option for the progressive income tax scale applies on an
annual basis to all income from portfolio income and capital gains
subject to the aforementioned flat-rate tax of 12.8% and realised
in respect of the same year.
If the BBI shares are held in a French share
savings plan (PEA), dividends and similar distributed income are
exempt from income tax, subject to compliance with the terms and
conditions applicable to the PEA.
1.1.1.3. Social
contributionsRegardless of whether or not the 12.8% PFNL is
applicable, the gross amount of income distributed by BBI (before
application of the 40% Allowance when the shareholder has opted for
taxation under the progressive scale) will also be subject to
social contributions at a global rate of 17.2%, broken down as
follows :
✓ general social
contribution (contribution sociale généralisée, “CSG”) at the rate
9.2%;
✓ social debt repayment
contribution (contribution pour le remboursement de la dette
sociale, “CRDS”) at the rate of 0.5%; and
✓ solidarity levy
at a rate of 7.5%.
These social contributions are not deductible
from income subject to PFU. When income is subject to the
progressive tax scale upon election, the 9.2% CSG is deductible up
to 6.8% from the taxable income of the year of its payment.
Shareholders should consult their usual tax
advisor to determine the tax reporting obligations and payment
rules that may apply to them in respect of the PFNL and social
contributions.
1.1.1.4. . Payment
of the PFNL withholding tax and social contributionsThe
Beneficiaries of the Distribution in Kind shall pay, as the case
may be, to their authorized financial intermediary or to BBI,
through BNP Paribas Securities Services, the social security
contributions and/or the withholding tax or the withholding tax due
in respect of the Distribution in Kind. Where applicable, the
authorized financial intermediary responsible for maintaining the
bearer or administered registered share accounts or BBI, through
BNP Paribas Securities Services, responsible for maintaining the
bearer share accounts, may sell the number of Nacon shares required
to pay the social contributions and/or the PNFL withholding tax due
in respect of the Distribution in Kind.
1.1.1.5. Exceptional
contribution on high-income earnersPursuant to Article 223-sexies
of the CGI, taxpayers subject to personal income tax are liable for
a contribution based on the amount of the tax household's reference
taxable income as defined in 1° of IV of Article 1417 of the CGI,
without any application of the quotient rules defined in Article
163-0 A of the CGI. The defined reference income includes the
distributed income and dividends received by the relevant taxpayers
(before the 40% Allowance when the shareholder has opted for
taxation under the progressive scale). This contribution is
calculated by applying the following
rates:✓ 3% of the portion of reference
taxable income between EUR 250,000 and EUR 500,000 for single,
widowed, separated or divorced taxpayers, and the portion of
taxable income between EUR 500,000 and EUR 1,000,000 for couples
filing jointly;
✓ 4% of the portion
of reference taxable income above EUR 500,000 for single, widowed,
separated or divorced taxpayers, and the portion of taxable income
above EUR 1,000,000 for couples filing jointly.
1.1.1.6. Portion of
the Distribution in Kind having the nature of a reimbursement of a
contribution for tax purposes Pursuant to the provisions of 1° of
Article 112 of the CGI, distributions made by a company to its
members or shareholders who are natural persons and who, for tax
purposes, have the nature of a reimbursement of a contribution or
share premiums in the sense of the latter, are not considered as
distributed income and, as such, are not subject to income tax and
are therefore not subject to the levies and taxes set out in
paragraphs 3.1.1.1 to 3.1.1.5.
In accordance with the provisions of 1° of
Article 112 of the CGI, this absence of taxation only applies
insofar as all the distributable results and reserves of the
distributing company have been allocated, which will be the case
for a fraction of the Distribution in Kind since this will be
charged in priority to the "Other Reserves" item in the accounts
and, for any surplus, to the "Other Reserves" item in the accounts,
for any surplus, to "Additional paid-in capital" and "Share
premium", it being recalled that a proposal will be made to the
General Meeting to allocate all "Retained earnings", less the sums
deducted from this account in order to pay the Ordinary Dividend,
to "Other reserves" prior to the payment of the Distribution in
Kind.
BBI will indicate, in a press release to be
published on the Payment Date, the allocation of the Distribution
in Kind from a tax point of view between, on the one hand, a
distribution of securities portfolio income corresponding to the
share of the Distribution in Kind allocated to the "Other reserves"
item and, on the other hand, a repayment of contribution
corresponding to the share of the Distribution in Kind allocated to
the "Additional paid-in capital" and/or "Share premium" items.)
Pursuant to the doctrine published by the tax
authorities (BOI-RPPM-PVBMI-20-10-20-40-20141014 No. 240 in its
version dated December 20, 2019), in the event of a subsequent sale
of their shares by these partners or individual shareholders, the
amount of these distributions is deducted from the acquisition or
subscription price of the shares as determined under the conditions
of Article 150-0 D of the CGI. Shareholders whose cost price for
tax purposes of the BBI share is lower than the amount of the
reimbursement of the contribution, as well as shareholders who have
benefited from a deferral or suspension of taxation on the occasion
of the acquisition of their BBI shares, are invited to contact
their usual tax advisor in order to determine the tax treatment
applicable to them.
4.1.2. Legal
entities subject to corporate income tax (under standard
rules)1.1.1.1. Legal entities without
the status of a parent company (société mère) in FranceLegal
entities, other than those having parent company (société mère)
status within the meaning of Article 145 of the CGI, should include
the dividends and distributed income received in their taxable
income subject to the ordinary corporate tax rate. An additional
3.3% social contribution may also apply, based on the corporate
income tax charge, after a deduction of up to EUR 763,000 for each
twelve-month period (Article 235- ter ZC of the CGI).
However, pursuant to Article 219 I-b of the CGI,
for legal entities with annual revenue of less than EUR 7,630,000
(excluding taxes), and whose share capital is fully paid up and at
least 75% continuously held throughout the relevant fiscal year by
natural persons or by a company satisfying all these conditions,
the corporate income tax rate is set at 15% for the first EUR
38,120 of taxable income for each twelve-month period. In addition,
these legal entities are exempted from the aforementioned 3.3%
social contribution.
1.1.1.2. Legal
entities qualifying as a parent company (société mère) in
France
Legal entities holding at least 5% of BBI's
share capital and voting rights and which meet the conditions set
out in Articles 145 and 216 of the CGI may benefit, upon election,
from a dividend and distributed income exemption under the
parent-subsidiary regime.
Subsection I of Article 216 of the CGI provides,
however, for the inclusion, in the taxable income subject to
corporate income tax at the standard rate of the beneficiary, of a
charge for costs and expenses set, under the current legislation,
at 5% of total proceeds from shareholdings, tax credits
included.
1.1.1.3. Other
shareholders
BBI shareholders subject to a tax system other
than those referred to above, in particular taxpayers whose
transactions in securities goes beyond simple portfolio management
or who have recorded their shares as assets on their business
balance sheet, should consult their own tax advisors to determine
the provisions that apply to their particular circumstances.
1.1.1.4. Fraction
of the Distribution in Kind having the nature of a reimbursement of
a contribution for tax purposes
Legal entities are invited to consult their
usual tax advisor in order to determine the tax treatment
applicable to them, in the light of their particular situation, as
a result of receiving the portion of the Distribution in Kind that
is in the nature of a reimbursement of a contribution.
1.2. Shareholders
with a tax residence located outside
FranceUnder French law as it currently stands and
subject to the possible application of international tax treaties,
the following discussion summarizes certain French tax consequences
that may apply to investors (i) who are not French tax residents
within the meaning of Article 4 B of the French Tax Code or whose
registered office is located outside France and (ii) whose
ownership of shares cannot be traced back to a fixed base or
permanent establishment subject to taxation in France. Such persons
should consult their usual tax advisor regarding the taxation
applicable to their particular circumstances and comply with the
tax legislation in force in their State of residence and/or
nationality. The Beneficiaries to the Distribution in Kind will
have to pay to their paying agent, the withholding tax, subject to
the provisions of the international tax treaties that may be
applicable and to the exceptions mentioned hereafter, when the tax
residence or the registered office of the beneficial owner is
located outside France.Consequently, the amount of the withholding
tax shall be made available to the paying agent prior to the
delivery of the shares. If necessary, the paying agent may sell the
number of Nacon shares necessary to pay the applicable withholding
taxes. BBI shareholders should contact their financial intermediary
to find out the processes that will be put in place by the latter
for this purpose. Subject to what is set forth below and to the
completion of the formalities necessary for the elimination or
limitation of the rate of withholding at source that may be
payable, the rate of this withholding tax is set in particular
at:
✓ 12.8% by the 2° of the
Article 187 (1) of the CGI where the beneficiary is a natural
person; and ✓ 15%
where the beneficiary is a non-profit organization that has its
registered office in a Member State of the European Union or in
another Member State of the European Economic Area Agreement that
has entered into an administrative assistance agreement with France
for the purpose of combating tax evasion and tax fraud, that would
be taxed according to the treatment referred to in Article 206-5 of
the CGI if it had its registered office in France and meets the
criteria provided for by paragraphs 580 et seq. of the
administrative guidelines BOI-IS-CHAMP-1050-10- 40 ass of 23 March
2022.
This withholding tax is also applicable to any
payment made for the benefit of a non-resident in the context of a
temporary assignment or a similar transaction giving the right or
obligation to return or resell the shares or other rights relating
to these shares. In accordance with the new Article 119 bis A, 1 of
the CGI, the temporary or similar transaction must be carried out
for a period of less than forty-five days, including the date on
which the right to the distribution of the proceeds of the shares
is acquired. If the beneficiary of the payment provides proof that
it corresponds to a transaction that has primarily a purpose and
effect other than avoiding the application of a withholding tax or
obtaining the granting of a tax benefit, then they will be able to
obtain the reimbursement of the withholding tax which will be
definitely deducted from the tax department of his or her domicile
or head office.
Regardless of the location of the beneficiary's
tax residence or registered office, the income distributed by BBI
outside France to a "non-cooperative" State or territory within the
meaning of Article 238-0 A of the French Tax Code is subject to
withholding tax at a rate of 75%. The list of non-cooperative
states and territories is published by ministerial order and
updated annually. The list was updated by the ministerial order
dated 2 March 2022 (published in the Official Journal of the French
Republic (JORF) dated 16 March 2022) and includes the following
States and territories: British Virgin Islands, Anguilla, Panama,
Seychelles, Vanuatu, Dominica, Fiji, Guam, US Virgin Islands,
Palau, American Samoa, Samoa, Trinidad and Tobago. If States or
territories were to be blacklisted by the European Union because
they facilitate the creation of offshore structures or devices,
they would also be affected by the application of the 75%
withholding tax from the day the Ministerial Decree is amended
accordingly, in accordance with Article 238-0 A 2 bis 1° of the
CGI. Investors that may be impacted by such measure and those who
are domiciled or established in a non-cooperative State or
territory should seek the advice of their usual tax advisor to
determine the tax treatment applicable to them. Shareholders that
are legal entities having their place of effective management in a
Member State of the European Union may benefit from a withholding
tax exemption if they hold at least 10% of BBI’s share capital and
otherwise meet all the conditions of Article 119-ter of the CGI. In
addition, subject to meeting the conditions specified in
administrative guidelines BOI-RPPM-RCM-30-30-20-40-20160607, legal
entities that hold at least 5% of BBI’s share capital may, under
certain conditions, benefit from a withholding tax exemption if
their place of effective management is located either in another
Member State of the European Union or in another Member State of
the European Economic Area Agreement that has entered an agreement
with France to avoid double taxation which includes an
administrative assistance clause to combat tax fraud and evasion.
Legal entity shareholders who may be affected by this measure
should consult their usual tax advisor to determine the tax
treatment applicable to them. Furthermore, and subject to the
payment in a non-cooperative State or territory as defined in
Article 238-0 A of the CGI, the withholding tax is not applicable
pursuant to Article 119 bis (2) of the CGI to dividends distributed
to collective investment undertakings governed by foreign law,
located in a Member State of the European Union or another State
which has entered into an administrative assistance agreement with
France for the purpose of combating tax evasion and tax fraud, and
which satisfy the following two
conditions:✓ raising capital from a certain
number of investors with the purpose of investing it in a fiduciary
capacity on behalf of such investors, pursuant to a defined
investment policy; and ✓ having features
similar to those required of collective undertakings governed by
French law under section 1, paragraphs 1, 2, 3, 5 and 6 of
sub-section 2, sub-section 3, or sub-section 4 of section 2 of
Chapter IV of the 1st Title of Book II of the French Monetary and
Financial Code (Code monétaire et financier).
The conditions of this exemption are set forth
in detail in the official bulletin of public finances (bulletin
officiel des finances publiques) dated 12 August 2020
(administrative guidelines BOI-RPPM-RCM-30-30-20-70).
Finally, the withholding tax may be reduced or
even eliminated pursuant to tax treaties signed by France.
Accordingly, it is the responsibility of BBI
shareholders to consult their usual tax advisors to determine
whether they are likely to qualify for a reduction to or exemption
from the withholding tax by virtue of the preceding principles or
provisions of international tax treaties and to determine the
formalities to be complied with to benefit from these treaties,
including those provided for by administrative guidelines
BOI-INT-DG-20-20-20-20 of 12 September 2012 relating to the
“standard” or “simplified” procedure for the reduction of or
exemption from the withholding tax.
- IMPACT OF THE
DISTRIBUTION IN KIND ON CONSOLIDATED
SHAREHOLDERS’
FUNDS, NET RESULT AND NET DEBT OF
THE BBI GROUP
1.1. Impact
of the Distribution in Kind on the consolidated shareholders' funds
of the BBI GroupFollowing the Distribution in Kind, BBI
will retain sole control over Nacon. Therefore, in accordance with
the IFRS standards under which the Bigben Group's consolidated
financial statements are prepared, the Distribution in Kind will be
treated as a disposal of minority assets with no impact on the
control of Nacon and will be treated for accounting purposes as a
transaction between shareholders and thus recognised as equity.
The Distribution in Kind will result in a
decrease in BBI's consolidated shareholders' funds on the payment
date equal to (i) the number of Nacon shares distributed multiplied
by the opening price of the Nacon share on the payment date of the
Distribution in Kind, minus (ii) the gain on disposal of shares net
of tax with no "Income Statement" impact resulting from the
difference between the Distribution in Kind and the share of the
net assets of the Nacon shares transferred to the Minority
Shareholders, net of the taxes recorded at the time of the
Distribution in
Kind. The
impact of this transaction and of the change in Nacon's share
price, on BBI's consolidated shareholders' funds group share,
compared to the consolidated balance sheet at 31 March 2022, can
therefore be summarized as follows:
|
Number of outstanding BBI shares |
Shareholders’ funds (group share) of BBI (in EUR millions) |
Shareholders’ funds (group share) of BBI per share (In EUR per
share) |
Situation at
31 March
202281 |
18 906 0009 |
233,4 |
12,3 |
Impact of Distribution in Kind |
|
Distribution in Kind |
-26,7 |
-1,4 |
Capital gain on share disposal net of tax without any impact on
Income Statement |
13,6 |
0,7 |
Situation post Distribution in Kind |
220,3 |
11,7 |
1.2. Impact
of the Distribution in Kind on the consolidated
net result of the BBI Group
(group
share)I
Given the absence of a loss of control of Nacon
by BBI, the Distribution in Kind will not have a material impact on
the consolidated net result of the BBI Group.
1.3. Impact
of the Distribution in Kind on the consolidated debt of the BBI
Group
The Distribution in Kind has no impact on the
consolidated net debt of BBI, except for the taxes due in respect
thereof.
The distribution of a cash balance to
shareholders who do not hold a number of BBI shares entitling them
to a whole number of Nacon shares will have an insignificant impact
on the consolidated net debt of BBI.
-
RISK
FACTORS
These risk factors should be carefully
considered.
4.4. Specific risk
factors related to the Distribution in KindThe main risk
factors related to the Distribution in Kind are set forth below.
BBI's shareholders should be aware that the list of risks presented
below is not exhaustive and that other additional risks that are
unknown or whose realization as of the date hereof is not
considered likely to have an adverse effect on the Distribution in
Kind, may exist:
- in the event that the Distribution in Kind
exceeds the Ceiling, the Board of Directors will have to make the
necessary adjustment to the parity so that the amount distributed
does not exceed such Ceiling; this would be the case if the opening
price of the Nacon share on the Payment Date exceeded EUR 10.88,
based on a distributable amount of EUR 50,786,949 and assuming that
all 4,669,616 Nacon shares would be distributed, it being specified
that in the event of an adjustment of the parity, the timing of the
Distribution in Kind may change.
- BBI shareholders could sell the Nacon shares
they receive in connection with the Distribution in Kind, which
could lead to downward pressure on the market price of Nacon
shares,
- the market price of Nacon shares could decline
after the Distribution in Kind, and
- tax laws and regulations may change
unfavorably compared to the current tax system.
5.2. Risk
factors relating to Nacon and its business
The main risk factors relating to Nacon and its
business are described in Nacon's universal registration document
filed with the Autorité des Marchés Financiers on July 6, 2021
under number R. 21-0037.*
Next
events:
Annual General
Meeting: 22
July
2022
Q1 2022-23 sales:
25 July
2022, Press release after close of the Euronext
Paris stock exchange
SALES 2021-22
275.7 M€ HEADCOUNT Over 1200 employees
INTERNATIONAL 31 subsidiaries and a distribution
network in more than 100 countries
www.bigben-group.com |
Bigben Interactive is a European player in video game development
and publishing, in design and distribution of smartphone and gaming
accessories as well as in audio products. The Group, which is
recognized for its capacities in terms of innovation and
creativity, intends to become one of Europe’s leaders in each of
its markets Company listed on Euronext Paris, compartment B – Index
: CAC Mid & Small – Eligible SRD long ISIN : FR0000074072 ;
Reuters : BIGPA ; Bloomberg : BIGFP PRESS CONTACTS
CapValue – Gilles Broquelet gbroquelet@capvalue.fr - +33 1 80 81 50
01 |
8 on the basis of BBI consolidated annual
disclosed at 31 March 2022 approved by the Board on 31 May 2022.9
number of shares making up the capital of BBI minus the number of
treasury shares held by BBI as at 31 March 2022.
- PR BBI Distrib Nature Actions Nacon Diffusion ENG
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