LegalizeCommission Delegated Regulation (EU) 2021/528 of 16 December 2020 supplementing Regulation (EU) 2017/1129 of the European Parliament and of the Council as regards the minimum information content of the document to be published for a prospectus exemption in connection with a takeover by means of an exchange offer, a merger or a division (Text with EEA relevance)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC (1), and in particular Article 1(7) thereof,
Whereas:
(1) In order to provide the highest standards of investor protection across the Union and to enable investors to make an informed investment decision, the document referred to in Article 1(4), points (f) and (g), and Article 1(5), first subparagraph, points (e) and (f), of Regulation (EU) 2017/1129 (‘exemption document’) should contain sufficient, objective and comprehensible information on the companies involved in the transaction, the rights attaching to the equity securities, the prospects of the issuer of those equity securitiesand, depending on the type of transaction, of the offeree company, of the company being acquired or of the company being divided.
(2) To ensure that investors are provided with the necessary information to take an informed investment decision, a more comprehensive exemption document should be required in case of a takeover by means of an exchange offer that meets the condition of Article 1(6a), point (b), of Regulation (EU) 2017/1129 when, in that case, the equity securities offered are not fungible with existing securities already admitted to trading on a regulated market prior to the takeover and its related transaction, or the takeover is considered to be a reverse acquisition transaction. The expanded content of the exemption document in such situations should be specified.
(3) To limit unnecessary costs for issuers, an exemption document should be lighter where, in connection with a transaction, the equity securities offered to the public or to be admitted to trading on a regulated market are fungible with equity securities already admitted to trading on a regulated market, and represent a small percentage of those equity securities. The reduced content of the exemption document in such a situation should be specified. However, in such a situation an issuer should not be prevented from benefiting from the exemptions laid down in Article 1(5), first subparagraph, points (a) or (b), of Regulation (EU) 2017/1129.
(4) To simplify drafting and to reduce costs of producing an exemption document, issuers should be allowed to incorporate by reference into that document certain information that already has been published in electronic form, provided such information is easily accessible and is written in the same language as the exemption document.
(5) Investors should be able to understand the situation of an issuer with a complex financial history or that has made a significant financial commitment, in which case the disclosure of information about an entity other than the issuer may be necessary. Issuers should therefore be obliged to describe in the exemption document their complex financial history or the effects on the issuer or on the issuer’s business of the significant financial commitment undertaken.
(6) In order to ensure that an exemption document is a workable document for investors, it is necessary to specify that it is for the national competent authority to determine in what language that document will be drafted,
HAS ADOPTED THIS REGULATION:
Article 1
Definitions
For the purposes of this Regulation, the following definitions shall apply:
(a) ‘transaction’ means a takeover by means of an exchange offer, a merger or a division as referred to in Article 1(4), points (f) or (g), or Article 1(5), first subparagraph, points (e) or (f), of Regulation (EU) 2017/1129, in respect of which the conditions laid down in Article 1(6a) or Article 1(6b) of that Regulation have been fulfilled;
(b) ‘exemption document’ means a document to be made available to the public in accordance with Article 21(2) of Regulation (EU) 2017/1129 to be entitled to an exemption from the obligation to publish a prospectus in case of a transaction;
(c) ‘offeree company’ means an offeree company as defined in Article 2(1), point (b), of Directive 2004/25/EC of the European Parliament and of the Council (2);
(d) ‘company being acquired’ means a company transferring assets and liabilities to an acquiring company as a result of any merger in respect of which the conditions laid down in Article 1(6b) of Regulation (EU) 2017/1129 have been fulfilled;
(e) ‘company being divided’ means a company transferring assets and liabilities to a company receiving contributions as a result of any division in respect of which the conditions laid down in Article 1(6b) of Regulation (EU) 2017/1129 have been fulfilled;
(f) ‘offeror’ means an offeror as defined in Article 2(i) of Regulation (EU) 2017/1129.
Article 2
Minimum information content of the exemption document
An exemption document shall contain the relevant information which is necessary to enable investors to understand:
(a) the prospects of the issuer, and, depending on the type of transaction, of the offeree company, of the company being acquired or of the company being divided, and any significant changes in the business and financial position of each of those companies that have occurred since the end of the previous financial year;
(b) the rights attaching to the equity securities;
(c) a description of the transaction and its impact on the issuer.
The information contained in an exemption document shall be written and presented in an easily analysable, concise and comprehensible form and shall enable investors to make an informed investment decision.
An exemption document shall include the minimum information referred to in Annex I to this Regulation.
An exemption document shall, however, include the minimum information referred to in Annex II to this Regulation where all of the following conditions are met:
(a) the exemption document relates to a takeover by means of an exchange offer in respect of which the conditions laid down in Article 1(6a), point (b), of Regulation (EU) 2017/1129 have been fulfilled;
(b) the equity securities offered are not fungible with existing securities already admitted to trading on a regulated market prior to the takeover and its related transaction, or the takeover is considered to be a reverse acquisition transaction within the meaning of paragraph B19 of international financial reporting standard (IFRS) 3, Business Combinations, adopted by Commission Regulation (EC) No 1126/2008 (3).
By way of derogation from paragraph 1 and without prejudice to Article 1(5), first subparagraph, points (a) or (b), of Regulation (EU) 2017/1129, where, in connection with a transaction, the equity securities are offered to the public or are to be admitted to trading on a regulated market and are fungible with and represent no more than 10 % of equity securities already admitted to trading on a regulated market, the exemption document shall only contain the minimum information referred to in sections 1, 3 and 5 and in items 2.2 and 4.2 of Annex I to this Regulation.
Article 3
Incorporation by reference
Information may be incorporated by reference in an exemption document where that information has been previously or simultaneously published electronically, drawn up in a language fulfilling the requirements of Article 5 of this Regulation and where that information is contained in one of the following documents:
(a) documents as referred to in Article 19(1) of Regulation (EU) 2017/1129;
(b) documents required by national law transposing Directive 2004/25/EC;
(c) documents required by national law transposing Directive (EU) 2017/1132 of the European Parliament and of the Council (4);
(d) other documents that are published in accordance with national law where those documents are relevant to the transaction.
The information referred to in the first subparagraph shall be the most recent that is available to the issuer, the offeree company, the company being acquired or the company being divided.
Where only certain items of information are incorporated by reference, the exemption document shall contain a statement that the non-incorporated parts are either not relevant for the investor or are included elsewhere in the exemption document.
Persons responsible for the exemption document shall ensure that information incorporated by reference in that exemption document is easily accessible.
An exemption document that contains information incorporated by reference shall contain a cross-reference list that enables investors to easily identify specific items of information and shall contain hyperlinks to all documents containing information that is incorporated by reference.
Article 4
Complex financial history and significant financial commitment
Where the issuer of equity securities has a complex financial history as referred to in Article 18(3) of Commission Delegated Regulation (EU) 2019/980 (5), or has made a significant financial commitment as referred to in Article 18(4) of that Regulation, the exemption document shall contain all information referred to in Annex I or, where applicable, Annex II to this Regulation about the entity other than the issuer as if that entity were the issuer of the equity securities, to the extent that investors need that information to make an informed investment decision as referred to in Article 2(1) of this Regulation.
Such additional information shall specify the anticipated effects of the transaction, as defined in Article 1(a) of this Regulation, on the issuer or on the issuer’s business, and the effects of the complex financial history or of the significant financial commitment on the issuer or on the issuer’s business.
The additional information referred to in paragraph 1 shall be accompanied by a clear explanation why investors need that information to make an informed investment decision.
An issuer that is unable to provide the additional information referred to in paragraph 1 shall explain in the exemption document why that is the case.
Article 5
Use of languages
An exemption document shall be drawn up in a language accepted by the competent authority as defined in Article 2, point (o), of Regulation (EU) 2017/1129.
Article 6
Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 December 2020.
For the Commission The President Ursula VON DER LEYEN
(1) OJ L 168, 30.6.2017, p. 12.
(2) Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (OJ L 142, 30.4.2004, p. 12).
(3) Commission Regulation (EC) No 1126/2008 of 3 November 2008 adopting certain international accounting standards in accordance with Regulation (EC) No 1606/2002 of the European Parliament and of the Council (OJ L 320, 29.11.2008, p. 1).
(4) Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law (OJ L 169, 30.6.2017, p. 46).
(5) Commission Delegated Regulation (EU) 2019/980 of 14 March 2019 supplementing Regulation (EU) 2017/1129 of the European Parliament and of the Council as regards the format, content, scrutiny and approval of the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Commission Regulation (EC) No 809/2004 (OJ L 166, 21.6.2019, p. 26).
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