On April 15, 2014 was published in volume 57 of the Official Journal of the European Union the Commission Delegated Regulation (EU) No 382/2014 supplementing Directive 2003/71 of the European Parliament and of the Council (the "Directive") with regard to regulatory technical standards for publication of supplements to the prospectus (the "Regulation").
This Regulation introduces minimum situations in which the publication of a supplemental prospectus is systematically required when securities are offered to the public or admitted to trading on a European regulated market, after the approval of the prospectus but before the closing of the offer or the beginning of the trading.
In the case of the situations introduced by the Regulation, a supplement is always compulsory.
The criteria of significance and materiality as required for the publication of a supplement by article 16 of the Directive (article 13 of the Luxembourg law of July 10, 2005 on prospectuses for securities, as amended) do not apply to the new introduced situations (but remain applicable for situations not provided for in the Regulation), thereby providing for a minimum legal frame in determining whether new events require the publication of a supplement or not.
According to the Regulation, a supplemental prospectus is to be systematically published in the following eight new introduced situations:
- when new annual audited financial statements are published;
- when an amendment to a profit forecast or a profit estimate already included in the prospectus is published;
- when there is a change in control;
- where there is a new public takeover bid by third parties;
- where in relation to shares and other transferable securities equivalent to shares and convertible or exchangeable debt securities, which are equity securities complying with certain conditions, there is a change in the working capital statement included in the prospectus when the working capital becomes sufficient or insufficient for the issuer's requirements;
- when an issuer seeks admission on an additional regulated market or intends to make an offer to the public in another member state than the one(s) provided for in the prospectus;
- where a new significant commitment is to be taken by the issuer (variation of more than 25% of one or more indicators of the size of the issuer's business); and
- when the aggregate nominal amount of the offering programme is increased.
The Regulation is to enter into force 20 days after its publication, on May 5, 2014, and thus as of such date, directly applicable in Luxembourg next to the existing Luxembourg Securities Laws and Regulations.
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.
