The implementation of the Prospectus Directive has also led to amendments to the FMSA Exemption Regulation. The main changes are:
- If a securities offer is exempted under section 5:3(1) FMSA, the resale of the securities is regarded as a new offer of securities to the public which will, in principle, require a prospectus. Under the amended Exemption Regulation, however, the seller does not have to prepare a prospectus if (i) a valid prospectus is available, and (ii) the issuer or party responsible for drawing up the prospectus has consented in a written agreement to the use of this prospectus by written agreement.
- An exemption has been included for securities re-offered to the public or re-admitted to trading on a regulated market if the same securities were offered to the public or admitted to trading on a regulated market on a previous occasion before 1 July 2005 with a prospectus meeting the statutory requirements in effect before the implementation of the Prospectus Directive. This new exemption is similar to section 23 c of the old exemption regulation that was abolished when the FMSA came into effect.
- Non-equity securities issued by banks in a continuous or repeated manner and offered to the public or admitted to trading on a regulated market will be exempted from the prospectus requirements if the total value of the offer or admission is lower than EUR 75 million. The old threshold was EUR 50 million.
- An error occurred during the implementation of the revised Prospectus Directive: an employer with its head office in the EEA but its seat or registered office outside the EEA and whose securities are not admitted to trading, was unable to use the exemption of section 5:3(2) FMSA. This error has been rectified.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
