Capital Markets Guide

Yes. 

Austria has implemented the PD in the Austrian Capital Market Act (Kapitalmarktgesetz – „KMG“), and the Austrian Stock Exchange Act (Börsegesetz – „BörseG“).

Yes. 

Bulgaria has implemented the PD in the Bulgarian Public Offering of Securities Act (Закон за публичното предлагане на ценни книжа), an unofficial English translation of which is available on the website of the Bulgarian Financial Supervision Commission („FSC“).

Yes. 

The Czech Republic has implemented the PD, in particular in Act No. 256/2004 Coll., the Act on Business Activities on the Capital Market, as amended (zákon o podnikání na kapitálovém trhu – „ZPKT“).

This link contains an English translation of the ZPKT dated 2006.

However, the ZPKT has been amended comprehensively since then.

Yes. 

Hungary has implemented the PD in the Hungarian Capital Market Act (Tőkepiacról szóló 2001. évi CXX. törvény, “CMA”). No English version of the CMA is available online.

Yes. 

The PD was implemented in Poland in the Act on Public Offers, Conditions Governing the Introduction of Financial Instruments to Organized Trading and Public Companies of 29 July 2005 (ustawa o ofercie publicznej, wprowadzaniu instrumentów finansowych do obrotu oraz spółkach publicznych; the “Act on Public Offerings”) and the Act on Trading in Financial Instruments of 29 July 2005 (ustawa o obrocie instrumentami finansowymi).

Yes. 

Romania has implemented the PD in the Romanian Capital Markets Act (Legea privind piata de capital – “CMA”) 20  and in Regulation 1/2006 of the Romanian Securities Commission on issuers and operations in securities (Regulamentul privind emitentii si operatiunile cu valori mobiliare – “Regulation 1”) 21. Please note that the links may not always contain the up-to-date versions.

Yes. 

Slovakia has implemented the PD mainly in the Securities Act (Act No. 566/2001 Coll., on Securities and Investment Services, as amended) and the Act on Stock Exchange (Act No. 429/2002 Coll., on Stock Exchange, as amended).

Unofficial translations of these acts are available on the website of the regulator – National Bank of Slovakia (“NBS”):

These translations, however, may not be up-to-date.

Yes. 

Slovenia has transposed the PD in the Financial Instruments Market Act (Zakon o trgu finančnih instrumentov, “ZTFI”). An unofficial English version of the ZTFI can be obtained at ATVP website.
Translations may not be fully up to date.

Certain ZTFI provision relevant for the capital markets regulation also refer to the Companies Act (Zakon o gospodarskih družbah, “ZGD-1”) and the Takeovers Act (Zakon o prevzemih, “ZPre-1”).

1.1.1 NON-EU: Please specify relevant legislation for securities offerings to the public.

Turkey has implemented provisions in line with the PD in the Turkish Capital Market Act (Sermaye Piyasası Kanunu – “CMA”) and its secondary legislation: (1) the Communiqué on Prospectus and Issuance Certificates (İzahname ve İhraç Belgesi Tebliği), (2) the Communiqué on the Sale of Capital Markets Instruments (Sermaye Piyasası Araçlarının Satışı Tebliğ) and (3) the Share Communiqué (Pay Tebliği). The above legislation is currently available in Turkish only.

No. 

The scope of the offer to the public definition set forth in §1 para 1 KMG goes beyond the definition of the PD and also covers „investments“ (Veranlagungen). Except for the broader scope, the offer to the public definition corresponds to the PD.

The KMG does not limit offers to the public to securities but rather extends the scope of the definition to also cover „investments“ (Veranlagungen), which are a local and hence a non-EU-harmonized securities law concept. „Investments“ (Veranlagungen) are property rights for which no securities are issued, arising out of the direct/indirect investments of capital of several investors for their collective account and collective risk, or for the collective account or risk together with the issuer, in each case provided that the management of such capital is not performed by the investors. Accordingly, if „investments“ (Veranlagungen) are offered to the public in Austria, a prospectus needs to be published unless a statutory prospectus exemption applies. While the prospectus exemptions mirror the PD exemptions, the form and scope of a prospectus for „investments“ (Veranlagungen) follows Austrian law requirements, not the EU PD/Regulation.

No. 

Under Bulgarian law the offer must be „addressed to 100 or more persons or to an unlimited number of persons“ to qualify as a public offer.

No. 

However, there are only minor wording changes, which do not result in any differences as to substance:
„Public offer of investment securities (hereinafter a „public offer“) means any communication to a broader group of persons containing information about offered investment securities and conditions for their acquisition which are sufficient so as to enable an investor to make a decision to purchase or subscribe to these investment securities.“

No. 

The definition of the CMA does not include a reference to financial intermediaries; however, it is obvious from the context of the CMA that the public offer rules also apply if the placing is made through financial intermediaries.

The definition of “offer to the public” under Polish law largely corresponds to the PD definition, except that it (1) does not refer to placing securities through financial intermediaries and (2) specifies that such offer be addressed to at least 150 persons or to an unspecified group of addressees.

No. 

The two differences in the CMA definition, as opposed to the PD definition, of the term “offer of securities to the public,” are: (1) the communication should be addressed to “some” persons and (2) the referred communication should enable the investor to decide to “sell,” to purchase or to subscribe to these securities. However, these differences do not raise any material issues in practice.

Yes. 

There was a minor amendment in §120 para 2 of the Securities Act as to the number of offerees forming a public offer (please see section 1.3).

1.2.1 NON-EU: What constitutes an offer to the public in your jurisdiction? Is there any rule or guidance on what number of offerees forms a public offer?

The scope of the offer to the public definition set forth in Art 3 para f CMA is very limited compared to the PD. In the former Capital Markets Law, a public offer was defined as “the sale of shares or stock of publicly held joint stock corporations to increase capital; continuous trading of the shares on stock exchanges or other organized markets; the invitation of the public to participate in a joint stock corporation or to act as its founder; and every kind of appeal to the public for the purchase of capital market instruments.”

However, in the newly enacted CMA, public offers are defined as “every kind of appeal to the public for the purchase of capital markets instruments and the execution of sales following such call.”

An offering to more than one investor is deemed a public offer.

Yes. 

Guidance can be sought by resorting to a circular published by the Austrian Financial Market Authority („FMA“) dated 4 December 2012, which is available in the German language only on the FMA‘s website. Section 2.1 no 5 of that circular states that the term „public“ (Publikum) refers to a majority of persons (Mehrzahl von Personen). Based on this broad understanding of the term „public“ as applied by the FMA, any offer to more than one Austrian investor will be deemed a public offer.

Yes. 

Under Bulgarian law the offer must be „addressed to 100 or more persons or to an unlimited number of persons“ to qualify as a public offer.

No. 

The Czech National Bank published a non-binding opinion stating that „a broader group of persons“ is generally understood as a group of persons exceeding a group of known, affiliated entities* or investors agreed in advance. The threshold of 150 persons (i.e., the relevant number for a prospectus exemption) may provide for an indication of a public offer. There is, however, no representative practice.

* Pursuant to the former Czech Commercial Code effective until 31 December 2013, affiliated entities meant the controlling and controlled entity and other entities controlled by the same controlling entity. In our opinion, this would encompass all companies of a group of companies. Moreover, the individual circum-stances should be taken into account.

No. 

The definition of “offer to the public” of the CMA implies that the offer is public if it is made to investors not determined in advance. However, no case law or regulatory guidance is available setting forth an exact figure as to the number of offerees that needs to be targeted for an offer to qualify as a “public offer.”

Yes. 

According to the Act on Public Offerings, a public offer is made if it is addressed to at least 150 persons or to an unspecified group of addressee. The Act on Public Offerings does not specify whether these 150 addressees should be non-qualified investors only.

No. 

The definition of the public offer only provides that a public offer is a “…communication to a wider group of persons…” (instead of just “persons,” as provided by the PD). There is, however, no legal provision or official guidance on the interpretation of the term “wider group of persons” and each case should be assessed individually.

No. 

There is no rule defining the number of offerees beyond which the offer is designated “public.” Following the PD wording, ZTFI defines “offer to the public” as a communication to persons (osebam) presenting sufficient information to enable an investor to decide to purchase or subscribe to securities 25. In practice, the term “non-public offer” is often (misleadingly) used to refer to an offer that falls under any of the prospectus exemptions.

According to information obtained from the Slovenian Securities Market Agency (Agencija za trg vrednostnih papirjev, “SMA”), any offer of securities to more than one person is deemed “public” in the sense of the ZTFI (but may fall under any of the prospectus exemptions). However, SMA states in its 2012 guidance document that a share capital increase by contributions in kind does not represent an offer to the public as defined by the ZTFI, since the persons providing the in-kind contributions are specified in advance in the share capital increase resolution (and hence no “solicitation” of potential investors is involved). Since such issuance falls outside the scope of the ZTFI, there is also no need for an issuer to notify the SMA of the reliance on a prospectus exemption (as is otherwise required).

It may therefore be concluded that the offer will not be deemed public according to the ZTFI definition provided (1) it is directed to one person only and (2) securities are issued in the course of an in-kind share capital increase where the contributors are specified in advance.

Rights offering to existing shareholders

Offer to the public?

Yes

Specific prospectus exemption available?

No*

If exempted, additional/equivalent document required?

n/a

Rights offering to existing shareholders

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Rights offering to existing shareholders

Offer to the public?

Yes

Specific prospectus exemption available?

No

If exempted, additional/equivalent document required?

n/a

Rights offering to existing shareholders

Offer to the public?

Yes

Specific prospectus exemption available?

No

If exempted, additional/equivalent document required?

n/a

Rights offering to existing shareholders

Offer to the public?

Yes

Specific prospectus exemption available?

No

If exempted, additional/equivalent document required?

n/a

Rights offering to existing shareholders

Offer to the public?

Yes

Specific prospectus exemption available?

No*

If exempted, additional/equivalent document required?

n/a

Rights offering to existing shareholders

Offer to the public?

Yes

Specific prospectus exemption available?

No

If exempted, additional/equivalent document required?

n/a

Rights offering to existing shareholders

Offer to the public?

Yes

Specific prospectus exemption available?

Yes*

If exempted, additional/equivalent document required?

No

Rights offering to existing shareholders

Offer to the public?

Yes

Specific prospectus exemption available?

No

If exempted, additional/equivalent document required?

No

Stock dividends

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock dividends

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock dividends

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock dividends

Offer to the public?

n/a

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock dividends

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock dividends

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock dividends

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock dividends

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock dividends

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Employee stock option or employee share scheme

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Employee stock option or employee share scheme

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Employee stock option or employee share scheme

Offer to the public?

Yes*

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Employee stock option or employee share scheme

Offer to the public?

n/a

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Employee stock option or employee share scheme

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Employee stock option or employee share scheme

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Employee stock option or employee share scheme

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Employee stock option or employee share scheme

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Employee stock option or employee share scheme

Offer to the public?

Yes

Specific prospectus exemption available?

No

If exempted, additional/equivalent document required?

No

Takeover by means of a stock offer

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Takeover by means of a stock offer

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Takeover by means of a stock offer

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Takeover by means of a stock offer

Offer to the public?

n/a

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Takeover by means of a stock offer

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Takeover by means of a stock offer

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Takeover by means of a stock offer

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Takeover by means of a stock offer

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Takeover by means of a stock offer

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock offered to shareholders of the transferring entity in case of a merger or demerger

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock offered to shareholders of the transferring entity in case of a merger or demerger

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock offered to shareholders of the transferring entity in case of a merger or demerger

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock offered to shareholders of the transferring entity in case of a merger or demerger

Offer to the public?

n/a

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock offered to shareholders of the transferring entity in case of a merger or demerger

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock offered to shareholders of the transferring entity in case of a merger or demerger

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock offered to shareholders of the transferring entity in case of a merger or demerger

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock offered to shareholders of the transferring entity in case of a merger or demerger

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

Stock offered to shareholders of the transferring entity in case of a merger or demerger

Offer to the public?

Yes

Specific prospectus exemption available?

Yes

If exempted, additional/equivalent document required?

Yes

No. 

Under Austrian law no formalized private placement regime or statutory definition of the term „private placement“ exists. Reference to a private placement typically characterizes a securities offering that will either not be considered as an offer to the public or which will be prospectus exempt.

No. 

There is no formalized private placement regime or statutory definition of the term „private placement“ under Bulgarian law. Reference to a private placement would typically characterize a securities offering not considered an offer to the public

No. 

Under Czech law no formalized private placement regime or statutory definition of the term „private placement“ exists. Reference to a private placement typically characterizes a securities offering that will either not be considered as an offer to the public or will be prospectus exempt.

Yes. 

In essence any securities offering that in substance corresponds to the prospectus exemptions of Art 3 para 2 lit a) through e) and Art 4 para 1 lit a) though e) is deemed a “private offering.” By contrast, any marketing of securities by ways other than a private offering is subject to the regulations on public offerings.

No. 

Under Polish securities law there is no formalized private placement regime or statutory definition of the term “private placement.” References to a private placement typically relate to offers to purchase/subscribe for securities addressed to less than 150 specified persons.

Under the Polish Commercial Companies Code (the “CCC”) a private placement (or “private subscription”) generally entails an offer by the company to specified addressees to subscribe for shares and the acceptance of the offer by these addressees in writing, as the acceptance would otherwise be null and void.

No. 

Under Romanian law no formalized private placement regime or statutory definition of the term “private placement” exists. Reference to a private placement typically characterizes a securities offering that will either not be considered as an offer to the public or will be prospectus exempt.

No. 

Under Slovenian law no formalized private placement regime or statutory definition of the term “private placement” exists. Reference to a private placement typically characterizes a securities offering that will either not be considered as an offer to the public or will be prospectus exempt.

Three days before the commencement of such an offer, the issuer, the offeror or the listing applicant (if different from the issuer) must notify the SMA of their reliance on the specific ZTFI prospectus exemption. Such an offer still qualifies as an “offer to the public” as defined by the PD / the ZTFI (cf Slovenian answer to the question “Is there any rule or guidance on what number of offerees forms a public offer?“).

Yes. 

The CMA allows the restriction of pre-emption (subscription) rights of the existing shareholders (entirely or partially) and to perform a private placement of the rights issue to a specific investor.

A private placement is defined as a “wholesale on the Stock Exchange or off-exchange by placing capital markets instruments directly to Turkish residents or non-residents.”

Private placements are generally not subject to the prospectus requirement. However, if the number of investors holding capital markets instruments by means of a private placement exceeds 150, the Central Registry Agency (MKK), which is the central securities depository for capital market instruments under the authority of the Capital Markets Board (the “CMB”), the Turkish regulatory and supervisory authority for securities markets – informs the CMB. Consequently, the issuer will have to apply to the CMB for approval of a prospectus.

Art 1 para 2 lit a

(units issued by collective investment undertakings other than closed-end type)

No 

Unit certificates pursuant to § 3 para 2 no 30 of the Investment Fund Act 2011 as well as unit certificates pursuant to § 1 Real Estate Investment Fund Act

Art 1 para 2 lit b

(Non-equity securities issued by MS, public international body, ECB or central banks of MS)

No

Reciprocity required: An exemption applies only if the respective MS Non-equity securities issued by the Republic of Austria, by an Austrian Province or by the Austrian National Bank are also prospectus exempt.

Art 1 para 2 lit c

(shares in central banks of MS)

Yes

n/a

Art 1 para 2 lit d

(securities guaranteed by MS)

No

Reciprocity required: An exemption applies only if in the respective MS securities guaranteed by the Republic of Austria, by an Austrian Province or by the Austrian National Bank are also prospectus exempt.

Art 1 para 2 lit e

(securities issued by associations with legal status or NPOs)

No

No comparable exemption implemented in Austria.

Art 1 para 2 lit f

(non-equity securities issued in a repeated manner by credit institutions)

Yes

n/a

Art 1 para 2 lit g

(certain non-fungible shares of capital to provide the holder with a right to occupy an apartment, or other form of immovable property)

No

No comparable exemption implemented in Austria.

Art 1 para 2 lit h

(total consideration for securities < EUR 5mn)

No

No comparable exemption implemented in Austria.

Art 1 para 2 lit i

(“bostadsobligationer” issued by Swedish credit institutions)

No

No comparable exemption implemented in Austria.

Art 1 para 2 lit j

(non-equity securities issued in a repeated manner by credit institutions with a total consideration of < 75mn)

Yes

n/a

Art 3 para 2 lit a

(offer exclusively to qualified investors)

Yes

n/a

Art 3 para 2 lit b

(offer addressed to < 150 non-qualified investors per MS)

Yes

n/a

Art 3 para 2 lit c

(total consideration ≥ 100,000 per investor per MS)

Yes

n/a

Art 3 para 2 lit d

(minimum denomination of EUR 100,000)

Yes

n/a

Art 3 para 2 lit e

(total consideration < EUR 100,000)

No

Total consideration < EUR 250,000.

Art 4 para 1 lit a

(substitution of shares of the same class)

Yes

n/a

Art 4 para 1 lit b

(securities offered in connection with a takeover)

Yes

n/a

Art 4 para 1 lit c

(securities offered/allotted in connection with a merger or demerger)

Yes

n/a

Art 4 para 1 lit d

(stock dividends)

Yes

n/a

Art 4 para 1 lit e

(employee stock option/employee participation schemes)

Yes

n/a

Art 4 para 2 lit a

(admission to trading of < 10% of already admitted shares of same class)

Yes

n/a

Art 4 para 2 lit b

(substitution of shares of the same class)

Yes

n/a

Art 4 para 2 lit c

(securities offered in connection with a takeover)

Yes

n/a

Art 4 para 2 lit d

(securities offered/allotted in connection with a merger or demerger)

Yes

n/a

Art 4 para 2 lit e

(securities offered/allotted free of charge and stock dividends)

Yes

n/a

Art 4 para 2 lit f

(employee stock option / employee participation schemes)

Yes

n/a

Art 4 para 2 lit g

(shares resulting from conversion/exchange of other securities)

Yes

n/a

Art 4 para 2 lit h

(securities already admitted to trading on another regulated market)

Yes

n/a

Art 1 para 2 lit a

(units issued by collective investment undertakings other than closed-end type)

Yes

n/a

Art 1 para 2 lit b

(Non-equity securities issued by MS, public international body, ECB or central banks of MS)

Yes

n/a

Art 1 para 2 lit c

(shares in central banks of MS)

Yes

n/a

Art 1 para 2 lit d

(securities guaranteed by MS)

Yes

n/a

Art 1 para 2 lit e

(securities issued by associations with legal status or NPOs)

Yes

n/a

Art 1 para 2 lit f

(non-equity securities issued in a repeated manner by credit institutions)

Yes

n/a

Art 1 para 2 lit g

(certain non-fungible shares of capital to provide the holder with a right to occupy an apartment, or other form of immovable property)

Yes

n/a

Art 1 para 2 lit h

(total consideration for securities < EUR 5mn)

No

No comparable exemption implemented in Bulgaria.

Art 1 para 2 lit i

(“bostadsobligationer” issued by Swedish credit institutions)

No

No comparable exemption implemented in Bulgaria.

Art 1 para 2 lit j

(non-equity securities issued in a repeated manner by credit institutions with a total consideration of < 75mn)

Yes

n/a

Art 3 para 2 lit a

(offer exclusively to qualified investors)

Yes

n/a

Art 3 para 2 lit b

(offer addressed to < 150 non-qualified investors per MS)

Yes

n/a

Art 3 para 2 lit c

(total consideration ≥ 100,000 per investor per MS)

Yes

n/a

Art 3 para 2 lit d

(minimum denomination of EUR 100,000)

Yes

n/a

Art 3 para 2 lit e

(total consideration < EUR 100,000)

Yes

n/a

Art 4 para 1 lit a

(substitution of shares of the same class)

Yes

n/a

Art 4 para 1 lit b

(securities offered in connection with a takeover)

Yes

n/a

Art 4 para 1 lit c

(securities offered/allotted in connection with a merger or demerger)

Yes

n/a

Art 4 para 1 lit d

(stock dividends)

Yes

n/a

Art 4 para 1 lit e

(employee stock option/employee participation schemes)

Yes

n/a

Art 4 para 2 lit a

(admission to trading of < 10% of already admitted shares of same class)

Yes

n/a

Art 4 para 2 lit b

(substitution of shares of the same class)

Yes

n/a

Art 4 para 2 lit c

(securities offered in connection with a takeover)

Yes

n/a

Art 4 para 2 lit d

(securities offered/allotted in connection with a merger or demerger)

Yes

n/a

Art 4 para 2 lit e

(securities offered/allotted free of charge and stock dividends)

Yes

n/a

Art 4 para 2 lit f

(employee stock option / employee participation schemes)

Yes

n/a

Art 4 para 2 lit g

(shares resulting from conversion/exchange of other securities)

Yes

n/a

Art 4 para 2 lit h

(securities already admitted to trading on another regulated market)

Yes

n/a

Art 1 para 2 lit a

(units issued by collective investment undertakings other than closed-end type)

No 

Exempt are offerings of units (podílové listy) issued by an investment fund that is an open-end mutual fund, investment shares issued by an investment fund that is a joint stock company with variable share capital, and securities or book-entry securities issued by a foreign investment fund that carry the right to their purchase on the account of this fund.

Art 1 para 2 lit b

(Non-equity securities issued by MS, public international body, ECB or central banks of MS)

Yes

Only minor wording changes : Exempt are debt securities issued by: 1. a Member State of the European Union; 2. the member state of a federation that is a Member State of the European Union; 3. a territorial self-governing unit of a Member State of the European Union; 4. the Czech National Bank, another central bank of a Member State of the European Union or the European Central Bank; 5. an international organisation with at least one member that is a Member State of the European Union.

Art 1 para 2 lit c

(shares in central banks of MS)

Yes

n/a

Art 1 para 2 lit d

(securities guaranteed by MS)

Yes

n/a

Art 1 para 2 lit e

(securities issued by associations with legal status or NPOs)

No

Only securities issued by non-profit organizations to obtain means necessary to achieve their non-profit-making objectives are exempt; i.e., it does not refer to „associations with legal status.“

Art 1 para 2 lit f

(non-equity securities issued in a repeated manner by credit institutions)

Yes

Only minor wording changes: Exempt are debt securities that: 1. are not subordinated or exchangeable; 2. do not give the right to acquire other types of securities except for coupons; 3. are not connected with derivates; 4. materialize a right for repayment of a deposit; 5. are covered by a deposit guarantee scheme according to EU law; and 6. are issued in a continuous or repeated manner by a bank or savings and loan cooperation (spořitelní a úvěrní družstvo) or similar foreign entity.

Art 1 para 2 lit g

(certain non-fungible shares of capital to provide the holder with a right to occupy an apartment, or other form of immovable property)

No

Refers to „a right to occupy an apartment or house“, but not to an „other form of immovable property or a part thereof.“

Art 1 para 2 lit h

(total consideration for securities < EUR 5mn)

No

Total consideration for securities < EUR 1mn; this limit is calculated over 12 months in all Member States.

Art 1 para 2 lit i

(“bostadsobligationer” issued by Swedish credit institutions)

Yes

n/a

Art 1 para 2 lit j

(non-equity securities issued in a repeated manner by credit institutions with a total consideration of < 75mn)

No

Only minor wording changes: Exempt are debt securities with a total consideration of less than EUR 75mn that: 1. are not subordinated or exchangeable; 2. do not give a right to acquire other types of securities; 3. are not linked to derivative instruments; and 4. are issued in a continuous or repeated manner by a bank or savings and loan cooperation (spořitelní a úvěrní družstvo) or similar foreign issuers. The threshold of EUR 75mn is calculated for securities offered over 12 months in all Member States.

Art 3 para 2 lit a

(offer exclusively to qualified investors)

Yes

n/a

Art 3 para 2 lit b

(offer addressed to < 150 non-qualified investors per MS)

Yes

n/a

Art 3 para 2 lit c

(total consideration ≥ 100,000 per investor per MS)

Yes

n/a

Art 3 para 2 lit d

(minimum denomination of EUR 100,000)

Yes

n/a

Art 3 para 2 lit e

(total consideration < EUR 100,000)

No

No comparable exemption has been implemented in the Czech Republic.

Art 4 para 1 lit a

(substitution of shares of the same class)

Yes

n/a

Art 4 para 1 lit b

(securities offered in connection with a takeover)

Yes

n/a

Art 4 para 1 lit c

(securities offered/allotted in connection with a merger or demerger)

No

Also includes securities offered in connection with an approved reorganization plan.

Art 4 para 1 lit d

(stock dividends)

Yes

n/a

Art 4 para 1 lit e

(employee stock option/employee participation schemes)

Yes

Only minor wording changes.

Art 4 para 2 lit a

(admission to trading of < 10% of already admitted shares of same class)

Yes

n/a

Art 4 para 2 lit b

(substitution of shares of the same class)

Yes

n/a

Art 4 para 2 lit c

(securities offered in connection with a takeover)

Yes

n/a

Art 4 para 2 lit d

(securities offered/allotted in connection with a merger or demerger)

No

Also includes securities offered in connection with an approved reorganization plan.

Art 4 para 2 lit e

(securities offered/allotted free of charge and stock dividends)

Yes

Only minor wording changes.

Art 4 para 2 lit f

(employee stock option / employee participation schemes)

Yes

Minor wording changes only but in substance is equivalent to Art 4 para 2 lit f PD.

Art 4 para 2 lit g

(shares resulting from conversion/exchange of other securities)

Yes

Only minor wording changes.

Art 4 para 2 lit h

(securities already admitted to trading on another regulated market)

Yes

n/a

Art 1 para 2 lit a

(units issued by collective investment undertakings other than closed-end type)

Yes

n/a

Art 1 para 2 lit b

(Non-equity securities issued by MS, public international body, ECB or central banks of MS)

Yes

n/a

Art 1 para 2 lit c

(shares in central banks of MS)

Yes

n/a

Art 1 para 2 lit d

(securities guaranteed by MS)

Yes

n/a

Art 1 para 2 lit e

(securities issued by associations with legal status or NPOs)

No

No comparable exemption implemented in Hungary

Art 1 para 2 lit f

(non-equity securities issued in a repeated manner by credit institutions)

Yes

n/a

Art 1 para 2 lit g

(certain non-fungible shares of capital to provide the holder with a right to occupy an apartment, or other form of immovable property)

No

No comparable exemption implemented in Hungary

Art 1 para 2 lit h

(total consideration for securities < EUR 5mn)

No

The CMA uses the wording „may not exceed EUR 5mn“ (i.e., EUR 5mn or less), whereas the PD uses the wording „less than EUR 5mn“

Art 1 para 2 lit i

(“bostadsobligationer” issued by Swedish credit institutions)

No

No comparable exemption implemented in Hungary.

Art 1 para 2 lit j

(non-equity securities issued in a repeated manner by credit institutions with a total consideration of < 75mn)

Yes

n/a

Art 3 para 2 lit a

(offer exclusively to qualified investors)

Yes

n/a

Art 3 para 2 lit b

(offer addressed to < 150 non-qualified investors per MS)

Yes

n/a

Art 3 para 2 lit c

(total consideration ≥ 100,000 per investor per MS)

Yes

n/a

Art 3 para 2 lit d

(minimum denomination of EUR 100,000)

Yes

n/a

Art 3 para 2 lit e

(total consideration < EUR 100,000)

Yes

n/a

Art 4 para 1 lit a

(substitution of shares of the same class)

Yes

n/a

Art 4 para 1 lit b

(securities offered in connection with a takeover)

Yes

n/a

Art 4 para 1 lit c

(securities offered/allotted in connection with a merger or demerger)

Yes

n/a

Art 4 para 1 lit d

(stock dividends)

No

According to the CMA, the issuer must disclose to the Central Bank of Hungary and make available to the relevant investors information on the number and nature of the shares and the reasons for and details of the offer

Art 4 para 1 lit e

(employee stock option/employee participation schemes)

Yes

n/a

Art 4 para 2 lit a

(admission to trading of < 10% of already admitted shares of same class)

No

The CMA uses the wording „may not exceed 10%“ (i.e., 10% or less), whereas the PD uses the wording „less than 10%.“

Art 4 para 2 lit b

(substitution of shares of the same class)

Yes

n/a

Art 4 para 2 lit c

(securities offered in connection with a takeover)

Yes

n/a

Art 4 para 2 lit d

(securities offered/allotted in connection with a merger or demerger)

Yes

n/a

Art 4 para 2 lit e

(securities offered/allotted free of charge and stock dividends)

Yes

n/a

Art 4 para 2 lit f

(employee stock option / employee participation schemes)

Yes

n/a

Art 4 para 2 lit g

(shares resulting from conversion/exchange of other securities)

Yes

n/a

Art 4 para 2 lit h

(securities already admitted to trading on another regulated market)

Yes

n/a

Art 1 para 2 lit a

(units issued by collective investment undertakings other than closed-end type)

No

The Act on Public Offerings states that securities issued by open-ended collective investment undertakings cannot be subject to public offering on the territory of Poland. But this does not relate to securities issued by „foreign funds“ within the meaning of the Act on investment funds (i.e., open-ended investment funds or investment companies that have been granted permission by the relevant MS authority to carry out their business activity in accordance with EU law on collective investing).

Art 1 para 2 lit b

(Non-equity securities issued by MS, public international body, ECB or central banks of MS)

Yes

n/a

Art 1 para 2 lit c

(shares in central banks of MS)

Yes

n/a

Art 1 para 2 lit d

(securities guaranteed by MS)

Yes

n/a

Art 1 para 2 lit e

(securities issued by associations with legal status or NPOs)

No

Funds raised on the basis of the offering must be used only for purposes set out in their respective statutes. An additional obligation to prepare and disclose an information memorandum is imposed on the issuer / selling shareholder.

Art 1 para 2 lit f

(non-equity securities issued in a repeated manner by credit institutions)

No

No comparable exemption implemented in Poland.

Art 1 para 2 lit g

(certain non-fungible shares of capital to provide the holder with a right to occupy an apartment, or other form of immovable property)

Yes

n/a

Art 1 para 2 lit h

(total consideration for securities < EUR 5mn)

No

Total consideration for securities < EUR 2.5mn. Precise way of calculation of the consideration: The planned gross income of the issuer / selling shareholder within the EU, calculated on the basis of the share sale price as of the date on which such price is determined, together with the income intended to be acquired by the issuer on the basis of public offerings of this type made within the last 12 months, should not exceed EUR 2,5 mn. Additional obligation to prepare and disclose information memorandum imposed on the issuer / selling shareholder.

Art 1 para 2 lit i

(“bostadsobligationer” issued by Swedish credit institutions)

No

No comparable exemption implemented in Poland.

Art 1 para 2 lit j

(non-equity securities issued in a repeated manner by credit institutions with a total consideration of < 75mn)

No

Precise way of calculation of the consideration: The planned gross income of the issuer within the EU, calculated on the basis of the share sale price as of the date on which such price is determined, together with the income intended to be acquired by the issuer on the basis of public offerings of this type made within the last 12 months, should not exceed EUR 75mn. An additional obligation to prepare and disclose an information memorandum is imposed on the issuer / selling shareholder.

Art 3 para 2 lit a

(offer exclusively to qualified investors)

Yes

n/a

Art 3 para 2 lit b

(offer addressed to < 150 non-qualified investors per MS)

No

Offer addressed to < 150 persons within the territory of Poland (the exemption does not explicitly relate to non-qualified investors only; please see Sec. 1.3.

Art 3 para 2 lit c

(total consideration ≥ 100,000 per investor per MS)

Yes

n/a

Art 3 para 2 lit d

(minimum denomination of EUR 100,000)

Yes

n/a

Art 3 para 2 lit e

(total consideration < EUR 100,000)

Yes

Precise way of calculation of the consideration: The planned gross income of the issuer within the EU, calculated on the basis of the share sale price as of the date on which such price was determined, together with the income intended to be acquired by the issuer from public offerings of this type made within the last 12 months, should not exceed EUR 100,000.

Art 4 para 1 lit a

(substitution of shares of the same class)

Yes

n/a

Art 4 para 1 lit b

(securities offered in connection with a takeover)

Yes

n/a

Art 4 para 1 lit c

(securities offered/allotted in connection with a merger or demerger)

Yes

n/a

Art 4 para 1 lit d

(stock dividends)

Yes

n/a

Art 4 para 1 lit e

(employee stock option/employee participation schemes)

Yes

n/a

Art 4 para 2 lit a

(admission to trading of < 10% of already admitted shares of same class)

Yes

Precise way of calculation of percentage of shares: together with shares admitted to trading within the last 12 months < 10% of shares already admitted to trading.

Art 4 para 2 lit b

(substitution of shares of the same class)

Yes

n/a

Art 4 para 2 lit c

(securities offered in connection with a takeover)

Yes

n/a

Art 4 para 2 lit d

(securities offered/allotted in connection with a merger or demerger)

Yes

n/a

Art 4 para 2 lit e

(securities offered/allotted free of charge and stock dividends)

Yes

n/a

Art 4 para 2 lit f

(employee stock option / employee participation schemes)

Yes

n/a

Art 4 para 2 lit g

(shares resulting from conversion/exchange of other securities)

Yes

Applicable only if the purpose of the delivery of shares was to enable holders of other securities of that issuer to exercise their rights attached to these securities.

Art 4 para 2 lit h

(securities already admitted to trading on another regulated market)

Yes

n/a

Art 1 para 2 lit a

(units issued by collective investment undertakings other than closed-end type)

No

Units (including shares) (titluri de participare) issued by undertakings for collective investments in transferable securities.

Art 1 para 2 lit b

(Non-equity securities issued by MS, public international body, ECB or central banks of MS)

Yes

n/a

Art 1 para 2 lit c

(shares in central banks of MS)

Yes

n/a

Art 1 para 2 lit d

(securities guaranteed by MS)

Yes

n/a

Art 1 para 2 lit e

(securities issued by associations with legal status or NPOs)

Yes

n/a

Art 1 para 2 lit f

(non-equity securities issued in a repeated manner by credit institutions)

Yes

n/a

Art 1 para 2 lit g

(certain non-fungible shares of capital to provide the holder with a right to occupy an apartment, or other form of immovable property)

Yes

n/a

Art 1 para 2 lit h

(total consideration for securities < EUR 5mn)

No

No comparable exemption implemented in Romania.

Art 1 para 2 lit i

(“bostadsobligationer” issued by Swedish credit institutions)

No

No comparable exemption implemented in Romania.

Art 1 para 2 lit j

(non-equity securities issued in a repeated manner by credit institutions with a total consideration of < 75mn)

Yes

n/a

Art 3 para 2 lit a

(offer exclusively to qualified investors)

Yes

n/a

Art 3 para 2 lit b

(offer addressed to < 150 non-qualified investors per MS)

Yes

n/a

Art 3 para 2 lit c

(total consideration ≥ 100,000 per investor per MS)

No

The exemption refers to “value” instead of “consideration,” which raises issues on how “value” should be interpreted (e.g., consideration, nominal value); also, the exemption refers to RON equivalent to EUR 100,000.

Art 3 para 2 lit d

(minimum denomination of EUR 100,000)

No

The exemption refers to RON equivalent of EUR 100,000.

Art 3 para 2 lit e

(total consideration < EUR 100,000)

No

The exemption refers to “value” instead of “consideration,” which raises issues on how “value” should be interpreted (e.g., consideration, nominal value); also, the exemption refers to RON equi valent to EUR 100,000.

Art 4 para 1 lit a

(substitution of shares of the same class)

Yes

n/a

Art 4 para 1 lit b

(securities offered in connection with a takeover)

Yes

n/a

Art 4 para 1 lit c

(securities offered/allotted in connection with a merger or demerger)

Yes

n/a

Art 4 para 1 lit d

(stock dividends)

Yes

n/a

Art 4 para 1 lit e

(employee stock option/employee participation schemes)

No

The exemption applies if the addressees of the offer are members of the management board or employees and the securities are offered by their employer, by the employer’s parent company or by one of the employer’s subsidiaries.

Art 4 para 2 lit a

(admission to trading of < 10% of already admitted shares of same class)

Yes

n/a

Art 4 para 2 lit b

(substitution of shares of the same class)

Yes

n/a

Art 4 para 2 lit c

(securities offered in connection with a takeover)

Yes

n/a

Art 4 para 2 lit d

(securities offered/allotted in connection with a merger or demerger)

Yes

n/a

Art 4 para 2 lit e

(securities offered/allotted free of charge and stock dividends)

Yes

n/a

Art 4 para 2 lit f

(employee stock option / employee participation schemes)

No

The exemption applies if the addressees of the offer are members of the management board or employees and the securities are offered by their employer, by the employer’s parent company or by one of the employer’s subsidiaries.

Art 4 para 2 lit g

(shares resulting from conversion/exchange of other securities)

Yes

n/a

Art 4 para 2 lit h

(securities already admitted to trading on another regulated market)

Yes

n/a

Art 1 para 2 lit a

(units issued by collective investment undertakings other than closed-end type)

No

In the case of foreign open-end collective investment undertakings, this exemption refers generally to „securities“ instead of „units“ issued by the foreign open-end collective investment undertakings.

Art 1 para 2 lit b

(Non-equity securities issued by MS, public international body, ECB or central banks of MS)

Yes

n/a

Art 1 para 2 lit c

(shares in central banks of MS)

Yes

n/a

Art 1 para 2 lit d

(securities guaranteed by MS)

Yes

n/a

Art 1 para 2 lit e

(securities issued by associations with legal status or NPOs)

Yes

n/a

Art 1 para 2 lit f

(non-equity securities issued in a repeated manner by credit institutions)

No

The Securities Act does not refer to (securities that) “are not subordinated, convertible or exchangeable” but to (securities that) “are not subordinated debts or exchangeable for shares issued by them or by other corporations”.

Art 1 para 2 lit g

(certain non-fungible shares of capital to provide the holder with a right to occupy an apartment, or other form of immovable property)

Yes

n/a

Art 1 para 2 lit h

(total consideration for securities < EUR 5mn)

Yes

However, if total consideration for securities is higher than EUR 100,000 (but still lower than EUR 5mn), the prospectus regulation applies, while a simplified prospectus may be permitted by the NBS.

Art 1 para 2 lit i

(“bostadsobligationer” issued by Swedish credit institutions)

No

No comparable exemption implemented in Slovakia.

Art 1 para 2 lit j

(non-equity securities issued in a repeated manner by credit institutions with a total consideration of < 75mn)

No

The Securities Act does not refer to (securities that) “are not subordinated, convertible or exchangeable” but to (securities that) “are not subordinated debts or exchangeable for shares issued by them or by other corporations “.

Art 3 para 2 lit a

(offer exclusively to qualified investors)

Yes

n/a

Art 3 para 2 lit b

(offer addressed to < 150 non-qualified investors per MS)

Yes

n/a

Art 3 para 2 lit c

(total consideration ≥ 100,000 per investor per MS)

Yes

n/a

Art 3 para 2 lit d

(minimum denomination of EUR 100,000)

Yes

n/a

Art 3 para 2 lit e

(total consideration < EUR 100,000)

Yes

n/a

Art 4 para 1 lit a

(substitution of shares of the same class)

Yes

n/a

Art 4 para 1 lit b

(securities offered in connection with a takeover)

Yes

n/a

Art 4 para 1 lit c

(securities offered/allotted in connection with a merger or demerger)

Yes

n/a

Art 4 para 1 lit d

(stock dividends)

Yes

n/a

Art 4 para 1 lit e

(employee stock option/employee participation schemes)

No

The Securities Act provides that the exemption applies to securities offered, allotted or to be allotted…to „members of statutory bodies, supervision bodies and management bodies“ instead of just „directors“ as provided by the PD.

Art 4 para 2 lit a

(admission to trading of < 10% of already admitted shares of same class)

Yes

n/a

Art 4 para 2 lit b

(substitution of shares of the same class)

Yes

n/a

Art 4 para 2 lit c

(securities offered in connection with a takeover)

Yes

n/a

Art 4 para 2 lit d

(securities offered/allotted in connection with a merger or demerger)

Yes

n/a

Art 4 para 2 lit e

(securities offered/allotted free of charge and stock dividends)

Yes

n/a

Art 4 para 2 lit f

(employee stock option / employee participation schemes)

No

The Securities Act provides that the exemption applies to securities offered, allotted or to be allotted …to „members of statutory bodies, supervision bodies and management bodies“ instead of just „directors“ as provided by the PD.

Art 4 para 2 lit g

(shares resulting from conversion/exchange of other securities)

Yes

n/a

Art 4 para 2 lit h

(securities already admitted to trading on another regulated market)

Yes

n/a

Art 1 para 2 lit a

(units issued by collective investment undertakings other than closed-end type)

Yes

n/a

Art 1 para 2 lit b

(Non-equity securities issued by MS, public international body, ECB or central banks of MS)

No

Minor wording changes (the ZTFI refers to „debt securities“ instead of „non-equity securities.“)

Art 1 para 2 lit c

(shares in central banks of MS)

No

The ZTFI refers to “shares and other securities“ representing shares in the central banks of MS; PD only refers to „shares.“

Art 1 para 2 lit d

(securities guaranteed by MS)

Yes

n/a

Art 1 para 2 lit e

(securities issued by associations with legal status or NPOs)

No

No comparable exemption implemented in Slovenia.

Art 1 para 2 lit f

(non-equity securities issued in a repeated manner by credit institutions)

No

Minor wording changes (the ZTFI refers to „debt securities“ instead of non-equity securities“ and „banks“ instead of „credit institutions.“)

Art 1 para 2 lit g

(certain non-fungible shares of capital to provide the holder with a right to occupy an apartment, or other form of immovable property)

No

No comparable exemption implemented in Slovenia.

Art 1 para 2 lit h

(total consideration for securities < EUR 5mn)

Yes

In this case, a simplified prospectus containing only basic information on the issuer and the securities offered is sufficient.

Art 1 para 2 lit i

(“bostadsobligationer” issued by Swedish credit institutions)

No

No comparable exemption implemented in Slovenia.

Art 1 para 2 lit j

(non-equity securities issued in a repeated manner by credit institutions with a total consideration of < 75mn)

No

Minor wording changes (the ZTFI refers to „debt securities“ instead of „non-equity securities“ and „banks“ instead of „credit institutions.“)

Art 3 para 2 lit a

(offer exclusively to qualified investors)

Yes

n/a

Art 3 para 2 lit b

(offer addressed to < 150 non-qualified investors per MS)

Yes

n/a

Art 3 para 2 lit c

(total consideration ≥ 100,000 per investor per MS)

Yes

n/a

Art 3 para 2 lit d

(minimum denomination of EUR 100,000)

Yes

n/a

Art 3 para 2 lit e

(total consideration < EUR 100,000)

Yes

n/a

Art 4 para 1 lit a

(substitution of shares of the same class)

Yes

n/a

Art 4 para 1 lit b

(securities offered in connection with a takeover)

No

ZTFI specifics within the PD framework: Takeover of a public company / non-public company above a certain balance sheet asset or shareholder count threshold: exemption applies (1) if the SMA approved the bid and (2) a prospectus as defined by the takeover legislation (certain additional requirements as compared to ZTFI) has been published; Takeover of any other company: exemption applies if a document deemed by the SMA to be equivalent to a prospectus is published.

Art 4 para 1 lit c

(securities offered/allotted in connection with a merger or demerger)

No

ZTFI specifics within the PD framework: (De)mergers to which ZGD-1 is applicable: exemption applies if the issuer publishes the required (de)merger documentation pursuant to the ZGD-1; Other (de)merges: exemption applies provided the issuer has published a document with content regarded by the SMA to be equivalent to that of the prospectus.

Art 4 para 1 lit d

(stock dividends)

Yes

n/a

Art 4 para 1 lit e

(employee stock option/employee participation schemes)

No

While the PD exemption applies to securities offered, allotted or to be allotted by a company with its head office or registered office in the EU, the ZTFI only refers to registered office (sedež).

Art 4 para 2 lit a

(admission to trading of < 10% of already admitted shares of same class)

Yes

n/a

Art 4 para 2 lit b

(substitution of shares of the same class)

Yes

n/a

Art 4 para 2 lit c

(securities offered in connection with a takeover)

No

ZTFI specifics within the PD framework: Takeover of a public company / non-public company above a certain balance sheet asset or shareholder count threshold: exemption applies (1) if the SMA approved the bid and (2) prospectus as defined by the takeover legislation (certain additional requirements as compared to ZTFI) has been published; Takeover of any other company: exemption applies if a document deemed by the SMA to be equivalent to a prospectus is published.

Art 4 para 2 lit d

(securities offered/allotted in connection with a merger or demerger)

Yes

ZTFI specifics within the PD framework: (De)mergers to which ZGD-1 is applicable: exemption applies if publishes the required (de)merger documentation pursuant to the ZGD-1; Other (de)merges: exemption applies provided the issuer has published a document with content regarded by the SMA to be equivalent to that of the prospectus.

Art 4 para 2 lit e

(securities offered/allotted free of charge and stock dividends)

Yes

n/a

Art 4 para 2 lit f

(employee stock option / employee participation schemes)

Yes

n/a

Art 4 para 2 lit g

(shares resulting from conversion/exchange of other securities)

No

Minor wording changes (the ZTFI only refers to the shares resulting from the exchange (and not conversion) of other securities.)

Art 4 para 2 lit h

(securities already admitted to trading on another regulated market)

No

ZTFI specifics within the PD framework: Slovenian language prescribed for the summary document to be made available to the public.

Art 1 para 2 lit a

(units issued by collective investment undertakings other than closed-end type)

n/a

n/a

Art 1 para 2 lit b

(Non-equity securities issued by MS, public international body, ECB or central banks of MS)

n/a

n/a

Art 1 para 2 lit c

(shares in central banks of MS)

n/a

n/a

Art 1 para 2 lit d

(securities guaranteed by MS)

n/a

n/a

Art 1 para 2 lit e

(securities issued by associations with legal status or NPOs)

n/a

n/a

Art 1 para 2 lit f

(non-equity securities issued in a repeated manner by credit institutions)

n/a

n/a

Art 1 para 2 lit g

(certain non-fungible shares of capital to provide the holder with a right to occupy an apartment, or other form of immovable property)

n/a

n/a

Art 1 para 2 lit h

(total consideration for securities < EUR 5mn)

n/a

n/a

Art 1 para 2 lit i

(“bostadsobligationer” issued by Swedish credit institutions)

n/a

n/a

Art 1 para 2 lit j

(non-equity securities issued in a repeated manner by credit institutions with a total consideration of < 75mn)

n/a

n/a

Art 3 para 2 lit a

(offer exclusively to qualified investors)

n/a

n/a

Art 3 para 2 lit b

(offer addressed to < 150 non-qualified investors per MS)

n/a

n/a

Art 3 para 2 lit c

(total consideration ≥ 100,000 per investor per MS)

n/a

n/a

Art 3 para 2 lit d

(minimum denomination of EUR 100,000)

n/a

n/a

Art 3 para 2 lit e

(total consideration < EUR 100,000)

n/a

n/a

Art 4 para 1 lit a

(substitution of shares of the same class)

n/a

n/a

Art 4 para 1 lit b

(securities offered in connection with a takeover)

n/a

n/a

Art 4 para 1 lit c

(securities offered/allotted in connection with a merger or demerger)

n/a

n/a

Art 4 para 1 lit d

(stock dividends)

n/a

n/a

Art 4 para 1 lit e

(employee stock option/employee participation schemes)

n/a

n/a

Art 4 para 2 lit a

(admission to trading of < 10% of already admitted shares of same class)

n/a

n/a

Art 4 para 2 lit b

(substitution of shares of the same class)

n/a

n/a

Art 4 para 2 lit c

(securities offered in connection with a takeover)

n/a

n/a

Art 4 para 2 lit d

(securities offered/allotted in connection with a merger or demerger)

n/a

n/a

Art 4 para 2 lit e

(securities offered/allotted free of charge and stock dividends)

n/a

n/a

Art 4 para 2 lit f

(employee stock option / employee participation schemes)

n/a

n/a

Art 4 para 2 lit g

(shares resulting from conversion/exchange of other securities)

n/a

n/a

Art 4 para 2 lit h

(securities already admitted to trading on another regulated market)

n/a

n/a

Yes. 

There are prospectus exemptions that go beyond the PD exemptions for both public offerings and the admission of securities to trading on a regulated market.

Additional prospectus exemptions for public offerings

While Art 1 para 2 lit b PD excludes certain non-equity securities from the prospectus obligation if issued by a MS, public international body, the ECB or central banks of a MS, § 3 para 1 no 1, no 1a and 1b KMG go beyond the relevant exemptions. These provisions exempt the offer of both non-equity and equity securities from the prospectus obligation if (1) the issuer is the Republic of Austria, any of its Provinces or the Austrian National Bank or (2) the guarantor is the Republic of Austria, any of its Provinces, a MS or any of an MS‘s regional or local authorities.

In addition, non-equity securities issued in a repeated manner by credit institutions are prospectus exempt if they exceed the total consideration of EUR 75mn foreseen in Art 1 para 2 lit j PD. However, the exemption applies only if, in addition to the requirements of Art 1 para 2 lit j PD, such securities reflect the receipt of repayable deposits and are covered by a deposit guarantee scheme within the meaning of Directive 94/19/EC.

Additional prospectus exemptions for the admission of securities to trading on a regulated market

Additional prospectus exemptions exist for the admission to trading on a regulated market. These correspond to Arts 1 para 2 lit b, lit d, and lit j PD, each as implemented into Austrian law.

No. 

There are no further prospectus exemptions.

Yes. 

Section 57 (2) (a) of the ZPKT exempts the securities listed in Section 34 (4) of the ZPKT (which corresponds to Article 1 (2) of the PD [with the modifications as described above]) from the obligation to publish a prospectus with respect to an admission to trading on a regulated market.

Yes. 

There is one prospectus exemption that goes beyond the PD exemptions regarding the admission of securities to trading on a regulated market; i.e., admission to trading on a regulated market of securities issued by (1) “foreign funds” as defined in the Polish act on investment funds and (2) open investment funds seated in the EEA on the condition that they operate in accordance with EU law on collective investments that are registered in the register kept by the Polish Financial Supervisory Authority (“PFSA”) and that sell their units on the territory of Poland.

No. 

Additional prospectus exemptions for the admission of securities to trading on a regulated market

Additional prospectus exemptions exist for the admission to trading on a regulated market. These correspond to Arts 1 para 2 lit a to lit j PD, each as implemented into Slovak law.

Yes. 

The ZTFI also provides for a prospectus exemption with regard to the (1) offer and (2) listing of shares issued to existing shareholders in the course of a share capital increase from the company’s own assets.

To passport a prospectus approved by the competent authority of an MS into Austria, the following documents are required:

(i) Certificate of approval from the competent home state authority attesting that the prospectus has been drawn up in accordance with the PD; and
(ii) Copy of the prospectus.

(i) a certificate of approval from the competent home state authority, confirming that the prospectus has been approved, as well as information as to (i) whether data has been excluded or replaced from the prospectus, and (ii) if so, the data that has been excluded or replaced and (iii) reasons for the exclusion or substitution;
(ii) a copy of the prospectus; and
(iii) a translation of the key information (previously summary) into Bulgarian.

To passport a prospectus approved by the competent home state authority into the Czech Republic, the following documents must be provided:
(i) a certificate of approval from the competent home state authority attesting that the prospectus has been drawn up in accordance with EU law;
(ii) a copy of the prospectus and supplement prospectus, if any, in Czech or English; and
(iii) a copy of the key information in Czech; except in the case of an issuance of non-equity securities with a denomination of at least EUR 100,000.

To passport a prospectus approved by the competent authority of an MS into Hungary, the following documents are required:
(i) a certificate of approval from the competent home state authority attesting that the prospectus has been drawn up in accordance with the PD;
(ii) a copy (or draft) of the marketing materials: Pursuant to the CMA, all information that (1) relates to the offer, (2) is provided by the issuer, offering agent, etc. and (3) serves for the information of investors, is considered “commercial communication” and, as such, must be submitted to the regulator. This implies that research reports and roadshow presentations must be submitted too if they pass the above test; and
(iii) a copy of the prospectus and translation of the key information.

To passport a prospectus approved by the competent authority of an MS into Poland, the following documents are required:

(i) a certificate of approval confirming approval of the securities pro- spectus and defining the scope of information that was omitted from the prospectus (on the basis of an authorization by the competent authority) or not included in the prospectus for legiti mate reasons, along with a statement of reason for such authori zation or non-inclusion;
(ii) a copy of the approved prospectus, drawn up and updated in accor- dance with MS regulations, along with its translation into Polish or English
(iii) a translation of key information into Polish; and
(iv) information on website address where the prospectus was published.

To passport a prospectus approved by the competent authority of a MS into Romania, the following documents are required:

(i) a certificate of approval from the competent home state authority attesting that the prospectus has been approved and drawn up in accordance with the PD;
(ii) a copy of the prospectus; and
(iii) a Romanian translation of the key information (previous summary).

To passport a prospectus approved by the competent authority of a MS into Slovakia, the following documents will be required:

(i) a certificate of approval from the competent home state authority attesting that the prospectus has been drawn up in accordance with the PD;
(ii) a copy of the prospectus; and
(iii) a translation of key information (summary), if applicable.

For the prospectus to be passported into Slovenia, the ZTFI and the SMA require the following documents:

(i) a certificate of approval of the prospectus by the competent home state authority;
(ii) a copy of the prospectus in English or Slovenian; and
(v) a translation of summary of the key information into the Slovene language.

3.1.1 NON-EU: Can a prospectus drawn up in another jurisdiction be used for a securities offering in your jurisdiction? If so, briefly specify the requirements.

No.

If a prospectus is drawn up in English, no German language translation of the key information is required. If a prospectus is not drawn up in English or German, the FMA requires a German language translation of the key information.

If shares are to be admitted to trading to the prime market segment of the Vienna Stock Exchange („VSE“), a German language translation of the key information is required under the VSE listing rules even if the prospectus is drawn up in the English language.

Yes. 

If a prospectus is not drawn up in Bulgarian, a Bulgarian language translation of the key information is required.

Yes. 

The key information must be translated into Czech (except in the case of admission of non-equity securities having a denomination of at least EUR 100,000 to trading on a regulated market).

N/A

No. 

Only the key information must be translated into Hungarian.

Yes. 

Where admission to trading of non-equity securities with a denomination of at least EUR 100,000 is sought, a summary of the prospectus is not required. However, if such summary is voluntarily drawn up, it must be provided in Slovakian.

Yes. 

Where admission to trading of non-equity securities with a denomination of at least EUR 100,000 is sought, a summary of the prospectus is not required. However, if such summary is voluntarily drawn up, it must be provided in Slovene.

The FMA must be notified of the intended passporting into Austria by the home member state authority and must be provided with the certificate of approval and a copy of the prospectus. The FMA will not review the prospectus (or the key information) of a passported prospectus in terms of completeness, comprehensibility and coherence, nor will it undertake any approval procedures. The passported prospectus is deemed valid for the public offer or admission to trading as soon as the FMA and ESMA have been notified in accordance with the PD (§ 8b para 1 KMG).

The FMA advises issuers to email them at prospektaufsicht@fma.gv.at to request confirmation from the FMA that it has received the approved prospectus from the home state authority before an offer is made to investors in Austria. However, a list of incoming notifications is also available on FMA‘s website.

Upon receipt of the notification and the copy of the prospectus, the FMA will provide Oesterreichische Kontrollbank AG („OeKB“) with a confirmation of the notification so that OeKB will not examine the prospectus in terms of signature requirements – as it would do for a prospectus approved by the FMA (§ 12 para 1 KMG).

The duration of the passporting process depends on how quickly the competent home state authority handles the process. Upon receipt of the passported prospectus, the FMA is generally prepared to issue a short email confirmation of receipt (see above) within one or two business days.

The competent home Member State authority must send the all documents required for passporting to the FSC. The timeframe for this step depends on the law of the home Member State. Once the FSC has received the documents mentioned under 3.1 above, it must immediately inform the person responsible for the prospectus. Therefore, this step is to be completed as quickly as possible, but there is no particular statutory deadline. Furthermore, the FSC must publish an up-to-date list with all certificates of approval mentioned in Bulgarian answer in the section “Please specify which documents must be provided for passporting” on its website.

A public offer of securities of an issuer with its seat in another Member State, or an application for admission of securities to trading on a regulated market in the Czech Republic, can be made if the Czech National Bank has received the documents required for passporting and if the ESMA has been notified of the issuance of a certificate of approval. It is possible to contact the Czech National Bank (telephone or email) for confirmation that all relevant and required documents were received.

As a general rule, the Czech National Bank does not review the passported prospectus in terms of completeness, comprehensibility and coherence, nor will it undertake any approval procedures.

Time-wise, passporting a prospectus into the Czech Republic essentially depends on how quickly the competent home state authority is handling the process. According to our experience, the Czech National Bank will then take only a few days.

The regulator must be notified of the intended passporting into Hungary by the home member state authority and must be provided with the documents required for passporting.

The duration of the passporting process essentially depends on how quickly the competent home state authority is handling the process. In practice, issuers should ask their home regulator or the Hungarian regulator to confirm that the certificate of approval has been sent/received. Upon receipt, the issuer may make the offer immediately.

The PFSA must be notified by the home MS authority of the intended passporting into Poland and must be provided with the notification document, a copy of the approved prospectus and information on the website addresses.

The PFSA will not review the prospectus (or the key information) of a passported prospectus in terms of completeness, comprehensibility and coherence, nor will it undertake any approval procedures. It only checks whether the prospectus was duly approved in the home MS of the issuer and if all the documents necessary for the purposes of passporting have been provided.

The PFSA posts information on the passported prospectus together with references to the websites of the issuer and the company operating the regulated market on its website for 12 months.

The issuer/seller may not make the prospectus available prior to providing the PFSA with the documents necessary for the passporting procedure.

A list of incoming notifications is available on the PFSA’s website.

Upon receipt of the complete documentation of the passported prospectus, the PFSA confirms receipt to the competent authority of the issuer’s home member state without undue delay – usually on the same day or, if the documentation was delivered after 4 pm, on the next business day.

If a proxy is appointed by the issuer, it can collect the confirmation from PFSA directly.

The Romanian Financial Supervisory Authority (“FSA”) must be notified of the intended passporting into Romania by the home member state authority and the home member state authority must provide the FSA with the certificate of approval, a copy of the prospectus and a translation of the key information into Romanian, if the prospectus has been drawn up in a language other than Romanian. The FSA will not review the prospectus (or the key information) of a passported prospectus in terms of completeness, comprehensibility and coherence, nor will it undertake any approval procedures. The passported prospectus is deemed valid for the public offer or admission to trading as soon as the FSA and the European Securities and Markets Authority (“ESMA”) have been notified in accordance with the PD and the prospectus is duly published.

A list of incoming notifications is available on the FSA’s website (in Romanian only).

The duration of the passporting process essentially depends on how quickly the competent home state authority is handling the process.

The NBS must be notified by the issuer’s home member state authority of the intended passporting into Slovakia and must be provided with the certificate of approval, a copy of the prospectus and (potentially) also a translation of the key information (summary). The NBS will not undertake any approval procedures.

The NBS publishes on its website a list of passported prospectuses, including supplements thereof, which have been notified to the NBS, including references to their electronic versions published on the website of the competent authority of the issuer’s home MS, on the issuer’s website or on the website of the regulated market. The list is regularly updated by the NBS; each item from the list must be published on the website for at least 12 months.

In terms of time, passporting a prospectus into Slovakia essentially depends on how quickly the competent home state authority is handling the process. As regards the confirmation by the NBS that it has been properly notified, there is no statutory timeframe set. However, the NBS is usually cooperative and is generally willing to confirm receipt via e-mail within a few business days.

If a prospectus is to be passported from Slovakia, the NBS must provide the competent home state authority with the certificate of approval and the copy of the prospectus within three business days following the submission of an application or, if the application for passporting is submitted already with the application for the approval of the prospectus, within one business day following approval.

The PD (and ZTFI) requirement for an approval notification from the competent home MS authority is satisfied in practice when the competent home MS authority receives a receipt confirmation of the necessary documentation from the SMA. Upon this, the prospectus is deemed approved for publication in Slovenia. Since the SMA does not review a passported prospectus as to the substance, the receipt confirmation can be sent rapidly and as a matter of practice usually no later than within one business day. SMA will publish passported notifications on ATVP website together with the corresponding documentation.

Each prospectus, including a passported prospectus, must have been published at least one banking day prior to making the offer to the public in Austria. A prospectus is deemed duly published if:
(i) published (in its entirety) in the supplement to the Official Gazette (Amtsblatt zur Wiener Zeitung) or another nationwide newspaper meeting certain thresholds;
(ii) a printed form is made available free of charge at the registered office of the issuer and the offices of the financial intermediaries placing or selling the securities including paying agents;
(iii) published in electronic form on the issuer‘s website (and, if appli- cable, on the website of the financial intermediaries including paying agents); or
(iv) published in an electronic form on the website of the regulated market where admission to trading is sought.

If a prospectus is published in electronic form, investors in Austria must be able to access the website on which the prospectus is made available. This means that the relevant site must not be blocked for Austrian investors / Austrian IP addresses. Also, if the prospectus is exclusively published in electronic form, a print copy of the prospectus must be made available to Austrian investors free of charge upon request.

Other than this, there is no legal publication requirement for passported prospectuses. However, some market participants voluntarily publish a notice in connection with retail offers in the Official Gazette (Amtsblatt zur Wiener Zeitung) specifying how the prospectus was published and where it can be obtained.

The issuer, the offeror, or the person seeking admission to a regulated market in Bulgaria must make the prospectus available to the public via publication in the press in the form of a brochure, or in another appropriate manner (e.g., on the website of the issuer, the website of the intermediary or the website of the regulated market where an application for admission of the securities has been made) not later than the starting date of the public offer (or the admission of the securities to trading on a regulated market). If the prospectus is made available to the public by a press publication or in the form of printed copies being distributed where the securities are offered for subscription or purchase, the prospectus must also be published electronically on the website of the issuer or, if applicable, on the websites of the financial institutions participating in the offering.

The prospectus is to be published without undue delay following receipt of the certificate of approval. The respective securities may be offered when the prospectus has been published in one or more of the following manners:

(i) on the issuer‘s website, or on the website of the entity seeking admission of the securities to trading without the issuer’s approval, or on the website of the investment firm or the foreign entity providing investment services in the Czech Republic pursuant to the ZPKT, or an entity established in another EU Member State that is authorized to passport investment services into the Czech Republic, or a foreign entity with its seat in a non-EU Member State and that provides investment services in the Czech Republic through its branch, if the entity places or sells the securities;
(ii) in at least one newspaper with nationwide distribution and simultaneously in the manner described in (i) above;
(iii) making a hard copy available to the public free of charge at the registered office and premises of the operator of the regulated market on which the securities should be admitted to trading, or at the issuer’s registered office, or at the registered office of the entity seeking admission of the securities to trading without the issuer’s approval; and at the registered office of the investment firm, or the foreign entity providing investment services in the Czech Republic pursuant to the ZPKT, or an entity established in another EU Member State that is authorized to passport investment services into the Czech Republic, or a foreign entity with its seat in a non-EU Member State and that provides investment services in the Czech Republic through its branch, if the entity places or sells the securities, and simultaneously in the manner described in (i) above;
(iv) on the website of the operator of the regulated market where the admission to trading is being sought or who accepts securities for trading; or
(v) on the offeror’s website, if the securities are being offered to the public by a person other than the issuer.

If the prospectus is made available only electronically, the respective publishing entity must, upon the request of the investor, provide a hard copy of the prospectus free of charge.

If the prospectus is published on a website, it must be published in the manner in which the publishing entity usually discloses information to its investors about its activities. The entity must ensure that:

(i) the website is easily accessible to the public, can easily be searched in the usual manner and that the content of the web- site is provided free of charge;
(ii) the published prospectus is provided as a downloadable file in a commonly used format; and
(iii) the published prospectus is accessible in the said manner continuously over five years, in case of admission of securities to trading on a regulated market, or over 12 months in case of a public offer of securities.

(i) in at least one national newspaper;
(ii) on the website of the issuer (and the offering agent, if any); or
(iii) on the website of the regulated market or the multilateral trading facility where the relevant securities are traded.

Each prospectus, including a passported one, should be made available to the public at such time as is necessary to enable the investors to review the information set out therein, but not later than on the day of commencement of the subscription period for the securities covered by the prospectus (if the securities are offered in a public offering) or on the day on which the securities are admitted to trading on the regulated market if the securities have not been offered in a public offering before. In case of an IPO of shares that are to be subsequently admitted to trading on a regulated market, where shares of the same type of that issuer have not yet been admitted to trading on a regulated market, the prospectus should be made available to the public not later than six business days prior to the closing of the subscription period.

The issuer / selling shareholder must make a prospectus available to the public, at its sole discretion, on the website of at least one of the following:

(i) the issuer;
(ii) the investment firm that offers the securities covered by the pro spectus;
(iii) the company operating the regulated market on which the securities are to be admitted to trading; or
(iv) the competent authority of the issuer’s home MS, in case of issuers for whom Poland is a host state.

Additionally, the issuer / selling shareholder may publish the prospectus:

(i) in a printed form, made available free of charge at the registered office of the company operating the regulated market on which the securities are to be admitted to trading, or at the registered office of the issuer, and the registered office and customer ser- vice points of the investment firm offering the securities covered by the prospectus, in a print run sufficient to ensure availability of the prospectus to interested persons and efficient execution of subscription or sales of securities or their admission to trading on a regulated market; or
(ii) by publication of the prospectus in at least one Polish newspaper of a nationwide circulation.

Where a prospectus is made available in electronic form only, the entity making the prospectus available must, at the request of an interested party submitted within the validity period of the issue prospectus, make available a free printed copy of that prospectus at the place where such request was accepted.

Each prospectus, including a passported prospectus, must be published on or one (calendar) day prior to the date of publication of the notice stating how the prospectus has been made available and where it can be obtained by the public, in a general or financial information newspaper with national or supra-regional distribution.

Generally, the notice must be published at least two business days prior to making the offer to the public in Romania; however, for certain types of offers, the FSA may approve of the public offer being launched on the business day following the publication of the notice.

A prospectus is deemed duly published if:

(i) it is published (in its entirety) in one or more general or financial information newspapers with national or supra-regional distribution (either printed or online);
(ii) a printed form is made available free of charge at least at the registered office of the issuer/offeror and the offices of the financial intermediaries placing or selling the securities or the registered seat of the regulated market operator on which the respective securities are admitted to trading;
(iii) it is published in electronic form on the issuer’s/offeror’s website and on the website of the financial intermediaries;
(iv) it is published in electronic form on the website of the regulated market where admission to trading is sought; or
(v) it is published in electronic form on the website of the FSA, if the FSA decides to offer such service (which is currently not the case).

If a prospectus is exclusively published in electronic form, a print copy of the prospectus must be made available to Romanian investors free of charge upon request at the registered seat of the issuer/offeror or of the financial intermediaries placing or selling the securities. Similarly, if a prospectus is published in printed form exclusively, it must also be posted in electronic form on the issuer’s/offeror’s website and on the website of the financial intermediaries placing or selling the securities.

Other than this, there is no legal publication requirement for passported prospectuses.

Each prospectus, including a passported prospectus, must be published within a reasonable time prior to, and at the latest on the day of commencing with, the offer to the public or of trading of the securities on a regulated market. A prospectus is deemed duly published by:

(i) publication in one or more nationwide (or “widely circulated”) daily newspapers;
(ii) being made available in printed form, free of charge, to the public at the offices of the regulated market on which the securities are being admitted to trading, or at the registered office of the issuer and at the offices of the financial intermediaries placing or selling the securities, including paying agents;
(iii) being made available in electronic form on the issuer’s website or on the website of the financial intermediaries placing or selling the securities, including paying agents;
(iv) being made available in electronic form on the website of the regulated market where the admission to trading is being sought; or
(v) being made available in electronic form on the website of the NBS, if the NBS has decided to offer such service.

In case of using method (i) or (ii), method (iii) must also be used.

In case of use of method (ii) to (v), also an announcement must be published in one or more newspapers circulated throughout, or widely circulated in the relevant MS in which the public offer or admission to trading will take place, stating how the prospectus has been made available and where it can be obtained. There is no rule as to when this announcement must be made.

If the prospectus is exclusively published in electronic form, a paper form of the prospectus must be made available to investors free of charge upon request.

After the prospectus has been passported, it must be published in Slovenia before the public offer may commence. The publication requirement is deemed fulfilled if the prospectus has been made accessible to the public in any of the following ways:
(i) publication in a daily newspaper sold at least in the major part of the Republic of Slovenia (in this case, publication on the website of the issuer and financial intermediaries is also required);
(ii) making a printed form of the prospectus available free of charge (1) at the premises of the market operator where the securities will be admitted to trading or (2) at the business address of the issuer and all the branches of the financial intermediaries that provide services and activities related to the placing or selling and payment of securities (in both of these cases, publication on the website of the issuer and financial intermediaries is also required);
(iii) on a public website of the issuer and the financial intermediaries, if sold to the public through financial intermediaries;
(vi) on a public website of the regulated market to which the securi- ties are asked to be admitted; or
(vii) on a public website of the SMA (through the service offered by the SMA for a tariff-set fee).

The prospectus must be published as soon as possible, but no later than (1) 6 business days prior to the expiry of the offer if the offer pertains to the class of previously unlisted securities being admitted to trading for the first time or (2) in all other cases, the day on which the offer commences or securities are listed on the regulated market.

§ 153 para 1 of the Austrian Stock Corporation Act („AktG“) provides for anti-dilution protection. Existing shareholders of an Austrian stock corporation (Aktiengesellschaft) are entitled to subscribe for and be allocated the number of new shares that allows them to maintain their existing participation in the company‘s share capital. Subscription rights (Bezugsrechte) of existing shareholders are therefore proportionate to the number of shares they hold before the offering of new shares.

Similarly, § 174 para 4 AktG provides for subscription rights of existing shareholders in relation to securities convertible into shares, securities with warrants to purchase shares, securities with profit participation or participation certificates – to allow existing shareholders to maintain their participation in the company‘s share capital.

In the case of a capital increase in a non-public company, each shareholder is entitled to acquire such a part of the new shares that is proportionate to its share in the capital prior to the increase. For different classes of shares, the right applies to the shareholders of the respective class. The rest of the shareholders may exercise pre-emption rights only after the shareholders belonging to the class within which the new shares are issued have exercised theirs.

Furthermore the shareholders have the same pre-emptive rights to subscribe for debentures that are convertible into shares.

In the case of a capital increase in a public company, shareholders have the right to subscribe newly issued shares, corresponding to their share in the capital of the company prior to the capital increase. When the capital of a public company is being increased via an offer of new shares, the public company must issue „subscription rights“ – which are defined as a type of securities granting the right to subscribe for shares. For each existing share, one such corresponding subscription right is to be issued.

Shareholders of a joint stock company have pre-emption rights to subscribe for new shares in the issuer in proportion to their holding, if the issue price (emisní kurs) is to be paid in cash. Unless the articles of association provide otherwise, shareholders also have pre-emption rights for shares that have not been subscribed for by another shareholder. In general, pre-emption rights are independently transferable from the date the shareholders resolution approves the capital increase.

In case of an issue of further shares (for cash consideration), existing shareholders (and holders of securities convertible into shares and/or securities evidencing warrants to purchase shares) have priority over third parties to subscribe to such shares. The period of exercising such priority right must be set forth in the deed of foundation, but it may not be shorter than 15 calendar days. The order of exercising the pre-emption rights must be set forth in the articles of association of the company.

In case of a share capital increase out of retained earnings or capital reserve, the subscription rights of existing shareholders are proportionate to the number of shares held by them prior to the offering of new shares, unless the articles of association of the company provide otherwise.

Art. 433 § 1 of the CCC provides for anti-dilution protection: Existing shareholders of a Polish stock corporation (spółka akcyjna) are entitled to subscribe for and to be allocated such number of new shares necessary to allow them to maintain their existing participation in the company’s share capital. Subscription rights (prawa poboru) of existing shareholders are therefore proportionate to the number of shares held by them prior to the offering of new shares.

According to Art. 433 § 5 of the CCC, existing shareholders have subscription rights also in case of an issue of securities convertible into shares or incorporating rights to subscribe for shares (i.e., convertible bonds, bonds with pre-emption rights attached and subscription warrants).

Art. 216 of the Romanian Companies Act (“Companies Act”) provides for anti-dilution protection: The shares issued in a share capital increase will first be offered to existing shareholders for subscription, proportionately to the number of shares held by each shareholder.

Similarly, art. 2161 of the Companies Act provides for subscription rights of existing shareholders in case of issuance of debt securities convertible into shares, to allow existing shareholders to maintain their participation in the company’s share capital.

§ 204a of the Commercial Code (Act No. 513/1991 Coll., the Commercial Code, as amended) provides for anti-dilution protection: if the registered capital of a joint stock company (akciová spoločnosť) is increased through subscription of new shares by way of monetary contribution, the existing shareholders have a right to preferential subscription of shares in a ratio corresponding to the nominal value of the shares held by the shareholders to the amount of the company’s registered capital prior to the capital increase. This right for preferential subscription may be transferred by the shareholder to a third person during the period between the resolution of the general meeting on the share capital increase is adopted (no transfer prior to such decision is possible) until the end of the subscription period for shareholders.

Existing shareholders also hold similar preferential subscription rights to acquire bonds convertible into shares and bonds with right to preferential subscription of shares, issued by the respective joint stock company.

In case of a rights issue following a shareholders’ resolution to increase a corporation’s share capital, existing shareholders hold pre-emption (subscription) rights in proportion to their current interest in the share capital.

Art 461 of the Turkish Commercial Code (the “TCC”) refers to the shareholders’ right to subscribe for new shares and thereby maintain their existing participation in the company’s share capital. Each shareholder is entitled to subscribe pro rata in relation to their existing shareholding in the company.

Subscription rights may be fully or partially excluded by resolution of the shareholders‘ meeting (§ 153 para 3 AktG). Such resolution requires a majority of at least 75% of the share capital present or represented at the shareholders‘ meeting. In addition, the proposal to exclude subscription rights must be announced prior to the respective shareholders‘ meeting and the resolutions excluding subscription rights must be based on a written report by the management board justifying such exclusion. Further an authorization can also be granted to the management board to exclude subscription rights. Again, a respective shareholder‘s resolution authorizing the management board requires a majority of 75% of the share capital present or represented at the respective shareholders‘ meeting. If the management board is authorized to exclude subscription rights, its resolution to do so requires approval by the supervisory board, as well as an additional reasoned report justifying the exclusion.

In each case, the exclusion of subscription rights must be justified; that is, it must be in the company‘s best interest, it must be required and proportionate.

Subscription rights are not considered excluded if new shares are initially subscribed for by a credit institution that undertakes to offer the new shares to existing shareholders in proportion to their subscription rights (intermediate subscription right, mittelbares Bezugsrecht).

In relation to public companies, the subscription right cannot be limited or excluded.

In relation to non-public companies, subscription rights can be limited or excluded only by shareholder resolution passed by a qualified majority of 2/3 of the shares represented at the meeting. The management board must present a report on the reasons for the limitation or exclusion of the subscription rights. The decision of the shareholders must be published in the Trade Register.

Pre-emption rights cannot be restricted or excluded in the articles of association. Pre-emption rights can, however, be restricted or excluded by shareholders resolution with a majority of 3/4 of the shareholders present, if such restriction or exclusion is in the best interests of the company. Restrictions or exclusions of pre-emption rights must affect all shareholders equally.

The management board must submit to the shareholders meeting deciding on restricting or excluding pre-emption rights a written report indicating the reasons for the planned restriction or exclusion and the proposed issue price (or the method of its determination) or a proposal to authorize the management board for its determination. The shareholders may further waive pre-emption rights under certain conditions.

Pre-emption rights can either be excluded in the articles of association, or the shareholders may adopt a resolution in this regard or authorize the management board to do so. The articles of association may set forth the required majority to pass such resolution (in case no such provision is included in the articles of association, a simple majority of the votes suffices). No justification is necessary for excluding pre-emption rights.

Subscription rights may be fully or partially excluded by resolution of the shareholders’ meeting (Art. 433 § 5 CCC). Such resolution requires a majority of at least 80% of the share capital present or represented at the shareholders’ meeting. In addition, the proposal to exclude subscription rights must be duly announced prior to the respective shareholders’ meeting and the resolutions excluding subscription rights should be based on a written opinion by the management board justifying such exclusion.

Further, in case of a share capital increase out of authorized capital, an authorization may also be granted to the management board in the articles of association to exclude subscription rights if approved by the supervisory board. A respective shareholder’s resolution to grant the management board authorization to exclude subscription rights upon approval of the supervisory board requires a majority of at least 80% of the share capital present or represented at the shareholders’ meeting. It is debatable whether the obligation of the management board to issue a written opinion justifying the exclusion of subscription rights is also required if an authorization to exclude subscription rights has been granted to the management board. However, in practice it is commonly accepted that this opinion should also be drawn up in this case.

In each case, the exclusion of subscription rights must be justified, meaning it must be in the company’s best interest, it must be required and it must be proportionate. Otherwise, the resolution on the exclusion of the subscription rights can be challenged.

Subscription rights are not considered excluded if the resolution on the share capital increase states that the new shares are initially subscribed for by a financial institution (1) if such institution undertakes to offer the new shares to existing shareholders in proportion to their subscription rights or (2) if the existing shareholders do not take up part of / all of the shares offered to them (Art. 433 § 3 CCC).

Pre-emption rights may be excluded only by resolution of the shareholders’ meeting (Art. 240 of CMA). Such resolution may be adopted by the shareholders’ meeting with a minimum quorum of 75% of the total number of shareholders (in absolute terms – i.e., not only of those present at the meeting) and with a majority of at least 75% of the total voting rights (again in absolute terms – i.e., not only of those present at the meeting). The proposal to exclude pre-emption rights must be expressly set out in the agenda of the shareholders’ meeting, published in advance in the Romanian Official Gazette and in a newspaper of large distribution in the locality where the company has its registered seat. The management board may not be authorized to exclude subscription rights.

There are no rules that the exclusion of pre-emption rights must be justified. However, the management board must present to the shareholders’ meeting resolving on the exclusion of pre-emption rights a report stating the reasons of the limitation/exclusion of the pre-emption rights.

Preferential subscription rights may only be fully or partially excluded by a resolution of the general meeting of the company that is deciding upon the share capital increase. A two-third majority of votes of shareholders present at the general meeting is required for such resolution. However, the general meeting can pass such resolution only if (1) it is necessitated by “important interests” of the company or (2) if it is required by law. The exclusion of preferential subscription rights is also prohibited if the share capital is increased using own resources of the company (e.g., undistributed profit).

The law itself does not specify what is considered an “important” interest of the company that would justify the exclusion of the preferential subscription rights. The Commercial Code only provides that, if the purpose of the share capital increase is the issuance of shares to the company’s employees, the exclusion or limitation of preferential subscription rights is deemed to be an “important interest” of the company. It also provides that it is not considered as a limitation or exclusion of preferential subscription rights if all shares are subscribed by a securities dealer and if such securities dealer agrees to sell these securities to existing shareholders upon their request to an extent that corresponds to their preferential subscription rights.

Other than in the circumstances mentioned above, there is no well-developed legal theory or case law on what may be considered an “important interest” of the company. Generally, according to legal writing, if the economic situation of the company or its expansion plans requires the entry of a new shareholder into the company, this should qualify as an important interest of the company justifying the exclusion of subscription rights.

The board of directors must prepare and submit to the general meeting deciding upon the share capital increase and on the exclusion of pre-emption rights a written report that justifies the reasons for exclusion. When preparing the report (and considering whether “important reasons” to do so exist), the board of directors must proceed with due care and under a duty of loyalty towards all shareholders. Such report must also be provided to the shareholders upon their request, and the shareholders must be notified of this right in the invitation to, or in the announcement of, the general meeting.

Pre-emption rights can be excluded only (1) if the exclusion is proposed already in the notice of shareholders’ meeting, (2) if it is contained within the shareholders’ resolution on the share capital increase (3) which must in this case be passed by a ¾ majority of the share capital represented in the respective meeting (unless a higher majority is prescribed by the issuer’s articles of association).

Authorization to exclude subscription rights cannot be granted to management. The latter is obliged to furnish the shareholders with a written report on the reasons for excluding pre-emption rights and the rationale behind the proposed issue price.

Legal literature (following the German doctrine) emphasizes the importance that the management’s report demonstrate that the company’s benefit resulting from excluding subscription rights will outweigh any harm to shareholders. This requirement is usually deemed fulfilled, for example, when new shares are offered to a specific person as part of the reorganization of a distressed company, in case of a listing of a company’s shares on a regulated market or when a business combination with another company requires the latter to take a capital stake in the former. Inadequate reasoning may result in the exclusion being ineffective and/or challengeable.

Under Art 461 of the TCC, subscription rights may fully or partially be excluded by a shareholders’ resolution. Such resolution requires a majority of at least 60% of the share capital present or represented at the shareholders’ meeting. In addition, the board of directors must draw up a written report justifying the exclusion, and this report must be published and registered in the Trade Registry. It is not possible to authorize the management board to exclude pre-emption rights. The exclusion of subscription rights must be based on a just reason and it must be in the company’s best interest; it must also not benefit or harm anyone for unjust reasons. An offer to the public is always deemed a valid reason for excluding subscription rights under the TCC.

Yes. 

The statutory minimum subscription period is at least two weeks. When issuing new shares, the management board must publish a notice in the Official Gazette (Amtsblatt zur Wiener Zeitung) specifying the beginning and the duration of the subscription period, as well as the subscription price (range).

Yes. 

The minimum period to subscribe for shares in a public company is 30 days. Subscription rights not exercised within the subscription period are offered on the market through the investment intermediary managing the capital increase. The sale of non-exercised subscription rights takes place in an open auction. The proceeds from the sale of non-exercised subscription rights are distributed by the company among the owners of these rights after deducting the expenses for the auction.

For non-public companies, the period for subscription is determined by the shareholders‘ meeting but may not end earlier than one month after the publication of the invitation to subscribe for new shares in the Trade Register. If subscription is not exercised within that period, the pre-emption rights forfeit.

Yes. 

The shareholders meeting is competent to determine the subscription period and the management board must inform the shareholders (in the same way as for convening shareholders meeting) of the subscription period determined, which may not be less than two weeks from the date of delivering this information.

Yes. 

The period of time during which such pre-emption rights may be exercised must be set forth in the articles of association and may not be shorter than 15 calendar days.

Yes. 

Non-public companies

The statutory minimum subscription period depends on how the existing shareholders are informed of the possibility to make an offer to purchase shares in the company.

As a rule, any shares in relation to which shareholders have subscription rights must be offered by the management board in an announcement. In this case, the shareholders may exercise their subscription rights within a period of at least three weeks from the date of the announcement. The announcement must contain information on (1) the date of the adoption of the resolution on the increase of the share capital; (2) the amount by which the share capital is to be increased; (3) the number, class and nominal value of the shares which are subject to pre-emptive right; (4) the issue price of the shares; (5) the rules for allocating the shares to the existing shareholders; (6) the place, date and the amount of payments for the shares, as well as the consequences of a decision not to exercise the pre-emptive right and of a failure to make payments when due; (7) the date after which the party subscribing for the shares ceases to be bound by the subscription, if by that time the new issue is not filed for registration; (8) the date by which the shareholders may exercise their pre-emptive rights; such date may not fall earlier than three weeks of the date of the announcement; and (9) the date on which the allocation of shares will be announced.

If all existing shares in the company are registered shares, the management board may refrain from announcing the offer and inform the existing shareholders about the offer in a registered letter. In such case, the shareholders may exercise their pre-emptive rights within a period of at least two weeks from the day on which the registered letter was sent to them.

Public companies

Subscription rights relating to shares which are subject to a public offering covered by a prospectus or an information memorandum should be exercised within a subscription period defined in the prospectus or the information memorandum.

However, the date by which shareholders may exercise subscription rights may not be earlier than two weeks from the date on which the prospectus or the information memorandum were published.

If the public offering is prospectus exempt and the information memorandum obligation does not apply either, the term to exercise shareholders’ subscription rights should be specified in an announcement (according to the rules applicable to non-public companies).

Yes. 

The statutory minimum subscription period is one month. When issuing new shares, the management board must publish a notice in a general or financial information newspaper with national or supra-regional distribution specifying: (1) the identification data of the issuer; (2) type, class and amount of shares to be issued in the share capital increase; (3) intended time schedule of the offer/admission to trading; (4) a statement that a (proportionate) prospectus has been published and where it can be obtained; (5) if the (proportionate) prospectus has been published in a printed form, where and until when such printed forms are available to the public; (6) if the (proportionate) prospectus has been published in electronic form, the address to which investors should refer to request a hard copy of the (proportionate) prospectus; and (7) the date of the notice.

Yes. 

The preferential subscription period cannot be shorter than 14 days and must be specified in the resolution of the general meeting on the share capital increase. The board of directors must publish the invitation to subscribe for new shares in the Commercial Gazette (Obchodný vestník) specifying in particular the subscription period, the subscription price and how shareholders may exercise their preferential subscription rights. If the company has issued all shares in the form of registered shares, the board of directors must send the call to all shareholders instead of publishing it.

Yes. 

The minimum statutory period in which existing shareholders may exercise their pre-emption rights is 14 days starting from the day after the shareholders’ resolution on the share capital increase is passed.

Yes. 

The statutory minimum subscription period is at least 15 days. When issuing new shares, the board of directors must publish a notice in the Official Gazette specifying the major parameters of the issuance of new shares, such as the beginning and the duration of the subscription period, and they must announce the same information on the company’s website.

Subscription rights that have not been exercised within the subscription period are deemed forfeited and do not ex lege lead to a pro rata increase of subscription rights of other shareholders. Unless the respective shareholders‘ resolution contains specific directions, the management board will be obliged to place any new shares for which subscription rights have not been exercised at the best possible conditions. Similarly, if the new shares are initially subscribed for by a credit institution, which then offers the new shares to the shareholders, the respective depositary bank will, pursuant to its general terms and conditions, inform the shareholders and will sell any subscription rights not exercised at the best possible conditions.

The conclusion of backstop-agreements pursuant to which a third party agrees to subscribe for any new shares originating from subscription rights that were not exercised is permissible under Austrian law. In terms of pricing, management will be bound to the (minimum) issue price if such price has been set by a shareholders‘ resolution (for further details on pricing, see next question).

Public company: Subscription rights that are not exercised are offered on the market in an open auction. Net sales proceeds are distributed
by the company among the owners of such rights.
Private company: they are deemed forfeited.

Pre-emption rights that have not been exercised within the set subscription period expire. However, unless the articles of association provide otherwise, the other shareholders have proportional pre-emption rights in shares that have not been subscribed for by (a) certain shareholder(s).

Furthermore, the shareholders can resolve that the shares will be offered to pre-determined persons (zájemce). Such shareholders‘ resolution should specify these persons, or at least the method of their choice. The shareholders resolution should further stipulate whether the shares are (fully or partly) publicly offered.

Non-public companies

If, within the first subscription period determined for existing shareholders to subscribe for new shares, the existing shareholders have not exercised in whole their pre-emptive rights, the management board must announce a second subscription period, granting the existing shareholders at least two weeks to exercise the subscription rights on the remaining shares.

The second allocation of the shares must be made in accordance with the following rules: (1) should the number of subscriptions be larger than the number of remaining shares, each subscriber must be allocated a percentage of the shares not yet allocated relative to his holding in the existing share capital; the remaining shares are divided equally (based on the number of subscriptions) if fractions of shares designated to individual shareholders have not been allocated; (2) the number of shares allocated to a shareholder in accordance with the above may not exceed the number of shares for which he subscribed, (3) the remaining shares not allocated are allocated by the management board at its discretion, but at a price not lower than the issue price. They can be offered to the existing shareholders once again or to any other persons. If the number of remaining shares is significant, the management board may also decide to offer the shares in an announcement. If the announcement addresses at least 150 persons or an unspecified group of addressee (i.e., if an offer to the public is made), the obligations arising from the Act on Public Offerings, including the prospectus obligation, will be triggered. However, the shareholders’ meeting may adopt other rules for the allocation of shares in the second subscription period.

Public companies

The shareholders who have subscription rights to the shares may, within the time during which they are exercisable make an additional subscription for the shares in a number not larger than the issue, if the remaining shareholders do not exercise their subscription rights. Shares subject to such additional subscription must be allocated by the management board in proportion to the subscriptions. Any remaining shares are allocated by the management board at its discretion, but at a price not lower than the issue price.

Unless the shareholders’ resolution / management board decision approving the share capital increase excludes the exercise of pre-emption rights, or a further subscription period(s) is/are available for the existing shareholders, the newly issued shares in relation to which pre-emption rights have not been exercised within the statutory subscription period may be offered to the public. Also, if the issuer chooses to, the pre-emption rights may be traded before exercised by the entitled person.

The preferential subscription rights are deemed forfeited if not exercised within the time period and under the terms stipulated. The share capital increase then continues under the usual procedure. The general meeting deciding upon the share capital increase must also decide on the procedure of subscription of shares by shareholders or third parties if the shareholders do not exercise their preferential rights.

Subscription rights not exercised within the set period (cf 4.3 above) lapse for the current issue.

Legal literature allows for the possibility of trading of subscription rights within the subscription period.

Subscription rights not exercised within the subscription period may not lead to a pro rata increase of the subscription rights of other shareholders. Therefore, they are deemed forfeited and are not accredited to the other shareholders.

Except the prohibition to issue shares below their par value or below the proportion of the subscribed capital attributable to each no-par value share, the AktG itself does not limit (maximum) discounts.

Unless the authorization given by the shareholders‘ meeting provides otherwise, the management board may determine the terms and conditions of the issue, which also includes the right to set the issue price at a discount. While there is no statutory limitation on the maximum discount (other than that the issue price must not be below par), the management board must act with due care (business judgment rule) when setting the issue price at a discount in order not to allow any unnecessary dilution of the earnings per share as a result of the capital increase.

If subscription rights are excluded, the management board must set an adequate issue price. The adequacy of the issue price is determined by the inner value (innerer Wert) of the shares. The share price does not, however, necessarily correspond to the inner value, although it will (in most cases) serve as a reasonable indication of the inner value of the shares. The resolution to exclude subscription rights may be challenged if the issue price is set inappropriately low due do the inherent dilution. But neither court rulings nor Austrian legal writing provide any indication as to the permitted maximum discount (e.g., such as the 3-5% yardstick applied in Germany).

There are no general rules referring specifically to the market price as a yardstick for the issue price of shares.

The shares may not be issued at a price below their nominal value (that is the value whereby the shareholder participates in the capital of the company). However, it is possible for the share price to be equal to the nominal value, or to exceed the nominal value.

There is an obligation on the management board to present a reason for setting a specific price if pre-emptive rights of existing shareholders are excluded. Therefore, arguably, in that latter scenario, the market price should be taken into account in some manner. Usually, the issue price is correlated to the balance value of the company (that is the company’s own equity).

The Act No. 90/2012 Coll. on commercial companies and cooperatives („ZOK“) does not contain any rule or regulation regarding maximum discounts. According to Section 247 ZOK, the issue price (emisní kurs) of the shares may not be less than the nominal value of the shares (jmenovitá hodnota akcie), although an exemption exists for employee share programs. If the issue price is higher than the nominal value of the share, the difference is a „share premium.“

Generally, the shareholders’ meeting is competent to set the issue price. However, the management board can be authorized to set the issue price and, if so, must act with due care and in the best interest of the company. Usually the managers‘ duty of care will require them to issue the shares at market value.

Except for the prohibition to issue shares below par value, the CCC does not provide for any limits on (maximum) discounts.

The share price can either be determined in the shareholders’ resolution on the increase of the share capital or at a later stage by the management board or the supervisory board on the basis of an authorization granted to them in the resolution on the share capital increase. If the existing shareholders are going to waive their subscription rights, the management board should determine the issue price in its written opinion.
If the management board or the supervisory board is authorized to determine the issue price and the subscriptions rights are waived by the shareholders’ meeting, the authorized body should establish the issue price at market price and in the absence of a market price, the highest achievable price. This is because such determination of the issue price is in the best interest of the company and the shareholders. Otherwise, the management board or supervisory board members could be held liable for acting to the detriment of the company. These rules for the issue price also apply to the shareholders’ meeting, if existing shareholders’ subscription rights have been waived and the issue of shares is addressed to third parties. A shareholders’ resolution that contravenes the articles of association or good practice, harms the interest of the company or is aimed at harming a shareholder/shareholders may be challenged in an action against the company seeking annulment of the resolution.

Moreover, it is commonly accepted that offering shares at a price lower than the market price or, absent a market price, lower than the fair value is only permissible if the offer is addressed to existing shareholders. Each deviation from the obligation to aim at achieving the highest possible price from outside investors is permissible only if justified by a particular interest of the company (e.g., in a restructuring).

There are no guidelines on maximum permissible discounts. However, in certain circumstances, an offer of shares to the existing shareholders at a price below market price or fair value may violate the company’s best interest and good practices. In this case the management board or the supervisory board may try to challenge such resolution; for example, when the company is in a difficult financial situation and the subscription for shares by existing shareholders for a nominal price would lead to failure of a restructuring of the company with the participation of an outside investor, who would be willing to subscribe for shares under significantly better conditions for the company than the existing shareholders would.

Except for the prohibition to issue shares below their par value, there are no statutory limits on (maximum) discounts.

Unless the authorization given by the shareholders’ meeting provides otherwise, the management board is entitled to determine the terms and conditions of the issue, which also includes the right to set the issue price at a discount. While there is no statutory limitation on the maximum discount (other than that the issue price must not be below par), the management board must act with due care (business judgment rule) when setting the issue price at a discount to prevent any unnecessary dilution of the existing shareholders as a result of the capital increase.

Neither the Commercial Code nor other laws or available legal writing provide for regulation or guidance on this, except for the prohibition to issue shares below their par value.

While there is a general prohibition from issuing shares below their nominal value, there are no other statutory requirements regarding the issue price. However, issuing shares at below market price may constitute a breach of directors’ duties. Although there is no relevant practice to that effect in Slovenia, such issuance may nevertheless be justified in certain circumstances, such as in a rescue rights issue in the course of the reorganization of a distressed company.

Yes. 

However, in relation to listed companies, such price cannot be lower than the weighted average stock exchange price 30 days prior to the disclosure of the capital increase resolution. In relation to non-listed companies, the nominal value of one share cannot be below one cent, pursuant to the TCC. An issuance of shares at a discount would only be interpreted as a capital decrease where other legal requirements as to capital decrease (e.g., amendment of Articles of Association as to the nominal value and capital) are fulfilled.

Due to the principle of equal treatment among shareholders (§ 47a AktG), offering different subscription prices to shareholders who are entitled to subscription rights is prohibited, unless objective reasons for treating shareholders differently can be substantiated.

According to Austrian scholars, setting a different subscription price for third-party subscribers (i.e., non-shareholders) is permissible within the general principles for setting the offer price (see above).

There is an obligation that shareholders in a public company be treated equally, which arguably implies a requirement to offer them the same subscription price.

In a tender offer scenario, it is prohibited to offer shares as consideration at different subscription prices.

Due to the principle of equal treatment among shareholders (Section 244 ZOK), offering different subscription prices to shareholders of the same class of shares who are entitled to subscription rights is prohibited, unless objective reasons for treating shareholders differently exist (and the different treatment must affect all shareholders in the same position equally). If different classes of shares exist, sharehold- ers holding the same class of shares must be treated equally in this respect

Third-party investors do not have to be offered the same subscription price as shareholders. However, the issue price or the method of its determination must be the same for all third party investors.

Due to the principle of equal treatment laid down in the Hungarian Civil Code, there must be an objective reason for treating shareholders differently or the terms of such treatment must be set forth in advance (e.g., in the articles of association).

Due to the principle of equal treatment among shareholders (Art. 20 CCC and Art. 20 of the Act on Public Offerings), offering different subscription prices to shareholders who are entitled to subscription rights is prohibited, unless different types of shares are offered (e.g., when ordinary shares and shares with special rights attached are offered).

Except for the above, Polish regulations do not directly forbid determining a different issue price for certain investors.

In practice it is acceptable to establish different issue prices for existing shareholders and new subscribers as well as a different issue price for open subscriptions, especially on the basis of a public offering. It is in particular justified to differentiate between “small investors,” investors acquiring large blocks of shares (strategic investors) and entities guaranteeing acquisition of shares of a large issue (underwriters).

Due to the principle of equal treatment among shareholders offering different subscription prices to shareholders who are entitled to pre-emption rights is prohibited.

However, according to the FSA regulations implementing the CMA, the subscription price for the public (following expiry of the pre-emption period, provided that it was decided to offer the unsubscribed shares to the public) must be higher than the subscription price set for the holders of pre-emption rights.

Furthermore, different offer prices may be set in relation to different tranches of shares for persons with no pre-emption rights.

Due to the prohibition of unequal treatment of shareholders (§ 176b of the Commercial Code), the offering of different prices for shares offered to shareholders is generally prohibited.

In respect to setting the share price for third parties, there is no regulation, case law or legal theory. It should thus be possible to ask for a different subscription price from third parties. The subscription price should be set by the resolution of a general meeting.

Offering different subscription prices to existing shareholders with pre-emption (subscription) rights is generally prohibited due to the principle of equal treatment of shareholders. There are no statutory obstacles to offering different share prices to third-party potential investors not (yet) shareholders.

Unless otherwise stated in the articles of association, due to the principle of equal treatment of shareholders, the same price should be offered to all purchasers who are shareholders.

Yes. 

This is if the selling shareholder (also) issued the prospectus. According to Section 36b of the ZPKT, the person who issued the prospectus is responsible for the correctness and completeness of the information provided in it. A guarantor who guarantees payment of securities may also be required to sign a responsibility statement if the guarantor is mentioned in the prospectus and undertook to guarantee the correctness of the data in the prospectus. If the prospectus is drawn up jointly by several persons, each is responsible for its content. The prospectus must contain information on such responsible persons and declarations by them that, to the best of their knowledge, the information contained in the prospectus is correct and that the prospectus makes no omissions likely to affect its meaning.

No. 

A responsibility statement must be signed by the issuer, the placing agent, the guarantee provider (if any), the offeror, or the person initiating trading of the shares on a regulated market or on a multilateral trading facility.

Yes. 

Furthermore, the selling shareholder may draw up the prospectus by itself (based on the information provided, upon request, by the issuer), in which case the selling shareholder will be exclusively responsible for the accuracy and completeness of the information included in the prospectus.

No. 

This is unless the respective shareholder guarantees interest or redemption of the securities, or the respective shareholder has drawn up the prospectus.

Yes. 

The ZTFI provides for a joint and several responsibility for inaccurate or incomplete information in a prospectus for the following persons (depending on the type of securities issued): (1) the issuer, its management and members of its supervisory board, (2) the offeror or the listing applicant (if different from the issuer) and (3) the guarantor, if any, for obligations arising out of the securities.

“Offeror” is defined by the ZTFI as “any person offering securities to the public” and therefore also covers existing shareholders when they offer their shareholdings to the public through an IPO/SPO. The same applies if existing shareholders apply for a listing of their shares on a regulated market. In both instances, they must sign the responsibility statement in the prospectus.

No. 

However, there are certain local regulatory requirements towards marketing materials under Art 23 of FSC Regulation No 2 correspon- ding to Art 15 of the PD. Art 34 of the Prospectus Regulation (EC) No 809/2004 is also applicable.

No. 

But the marketing materials must be submitted to the regulator before closing of the offer. The regulator may prohibit distribution of the marketing materials if they contradict the prospectus or contain misleading information.

No. 

However, if a public offer is exempt from the prospectus obligation, the issuer or selling shareholder who would like to disseminate advertisements must submit to the PFSA, not later than 14 business days prior to launching any advertisements, a notification on the intent to start the marketing campaign. This notification must include information about the marketing campaign agenda, the entities involved in carrying out the campaign and information on the scope of information to be disclosed to the public. After receiving this notification but not later than five business days prior to the planned commencement of the marketing campaign, the PFSA may request to amend or supplement the documents or to provide an explanation within a set period of time, (which may not be longer than two days from the delivery of the request to the notifying entity). The beginning of the marketing campaign is postponed until the notifying entity fulfils the requirements set out in the PFSA’s request.

Yes. 

Any marketing materials in relation to a public offer may be made available to the public only after being approved by the FSA. Furthermore, any type of marketing of the offer prior to the FSA’s approval of the prospectus is prohibited. There is no statutory requirement imposed on the FSA to approve marketing material within a specific period of time. In practice, marketing materials are submitted to the approval of the FSA together with the prospectus and the approval on the marketing materials is granted, if the materials satisfy the legal requirements, when the FSA grants approval on the prospectus.

Nonetheless, in practice, analyst research reports and roadshow presentations are not deemed to be marketing materials and hence are not (and do not have to be) approved by the FSA prior to being disseminated.

No. 

But the NBS can prohibit or postpone publication of marketing materials if it finds that such publication or further publication would be contrary to the Securities Act or other applicable laws.

No. 

But marketing materials are subject to regulation by the ZTFI applicable to advertisements and must, among other requirements, contain a reference to the prospectus and state where the latter can be obtained.

No. 

No general obligation to this effect exists. However, collective investment schemes from other Member States publicly offering their units in Bulgaria must disclose to the FSC in Bulgarian all information provided to the home state authority and made publicly available in their home Member State. Consequently, research analysis and roadshow presentations may have to be translated if falling within the scope of the preceding sentence.

No. 

However, depending on the circumstances, a translation may be required pursuant to Czech labor law regulations or consumer protection law, such as for employee share programs.

Yes. 

However, the FSA may not approve marketing materials drawn up in a language other than Romanian.

No. 

However, the NBS is of the view that marketing materials should be comprehensible for the target offerees. Therefore, the use of Slovak language versions of marketing materials may in certain cases be recommendable (e.g., in case securities are offered to Slovak retail investors without any financial background).

Although the ZTFI does not contain an express provision to that effect, the Slovenian Consumer Protection Act requires all advertising to be in a language easily comprehensible to the target audience. If consumers in the Republic of Slovenia are targeted, this means that a translation into Slovenian is recommended.

While there is no precise definition of what constitutes marketing or advertising in the ZTFI or Consumer Protection Act, it is unlikely that research analysis or roadshow presentations must be translated into Slovenian if they are directed only at institutional investors.

Yes. 

It is market practice that stabilization activities are conducted in Austria both in the context of IPOs and secondary offerings. However, there is no legal obligation do so. Any stabilization activities must be performed in accordance with the EU Buyback and Stabilization Regulation (2273/2003/EU).

No. 

We are not aware of any such activities being conducted in practice.

Due to the moderate IPO activity in the Czech Republic, stabilization does not happen often. Any stabilization activities would have to be performed in accordance with the EU Buyback and Stabilization Regulation (2273/2003/EU).

Yes. 

Pursuant to Regulation 2273/2003/EU, stabilization activities may be conducted in Hungary both in the context of IPOs and secondary offerings. However, there is no legal obligation to do so. Any stabilization activities must be performed in accordance with the EU Buyback and Stabilization Regulation (2273/2003/EU).

Yes. 

It is market practice in Poland that stabilization activities are conducted both in the context of IPOs and secondary offerings. However, there is no legal obligation do so. Any stabilization activities must be performed in accordance with the EU Buyback and Stabilization Regulation (2273/2003/EU).

No. 

To our knowledge, there has been only one case in which the stabilization option was included in an IPO prospectus, but it was not exercised (Romgaz IPO).

Also, there is no legal obligation to conduct stabilization activities. Any stabilization activities must be performed in accordance with the EU Buyback and Stabilization Regulation (2273/2003/EU).

No. 

Given the fact that the capital markets in Slovakia are comparatively undeveloped, no meaningful information on market practice relating to the use of stabilization activities can be provided.

No. 

According to the information from SMA, price stabilization activities pursuant to the Buyback and Stabilization Regulation (2273/2003/EU) have not been conducted in Slovenia.

Yes. 

The Share Communiqué sets forth rules on share buybacks for the purpose of stabilization activities both in the context of IPOs and secondary offerings.

Yes. 

In addition to the Buyback and Stabilization Regulation, the FMA has issued an ordinance on accepted market practice. The ordinance applies to certain minor compensation transactions in selected bonds that professional counterparties conduct at adequate market prices.

Transactions relating to share buybacks or stabilization of financial instruments carried out pursuant to the Buyback and Stabilization Regulation (2273/2003/EU), and for which the exceptions for such programs and stabilization provided in the Regulation apply, do not fall within the prohibitions under the Act against Market Misuse of Financial Instruments (Закон срещу пазарните злоупотреби с финансови инструменти).

Yes. 

The ZTFI exempts trading in own shares within buyback programs and price stabilization activities from the insider dealing and market manipulation provisions if they are carried out in accordance with the Buyback and Stabilization Regulation.

6.2.1 NON-EU: If stabilization activities are conducted in your jurisdiction briefly describe the legal requirements.

Following the commencement of the public offering and provided that the required information as to the public offering is disclosed in the prospectus, the stock broker is entitled to buy shares on behalf of the company or itself in order to maintain the price stabilization. The same also applies for public offerings made through a consortium (i.e., a green shoe option).

If reference to the purchase of shares on behalf of the company is made in the prospectus, the fund to be used for purposes of stabilization cannot exceed 20% of the gross public offering income to be earned, and the nominal values of the shares to be acquired may not exceed 20% of the nominal value of the shares offered.

The term of the stabilization transactions should be indicated in the prospectus. However, the term cannot be more than 30 days, to be calculated as of the date of the trading on the stock exchange.

No. 

Please see answer to the question “Are price stabilization activities conducted in your jurisdiction? If yes, in the context of which types of transactions (IPOs, SPOs, other)?” 

Not applicable.

No. 

Please see answer to the question “Are price stabilization activities conducted in your jurisdiction? If yes, in the context of which types of transactions (IPOs, SPOs, other)?” 

No. 

Please see answer to the question “Are price stabilization activities conducted in your jurisdiction? If yes, in the context of which types of transactions (IPOs, SPOs, other)?” 

Yes. 

Dividends paid on equity by an Austrian resident corporation are generally subject to a 25% withholding tax (Kapitalertragsteuer).

In addition, capital gains realized in the course of a sale may also be subject to Austrian withholding tax if carried out via an Austrian custodian or paying agent. In case of Austrian or EU resident corporate shareholders, an exemption from Austrian withholding tax on dividends may apply under specific circumstances. Furthermore, a reduction of Austrian withholding tax may be applicable in case of non-Austrian resident shareholders by virtue of a double tax treaty.

In addition, certain corporate non-resident taxpayers may claim a refund of Austrian withholding tax on dividends if tax withheld may in fact not be credited in the state of residence in accordance with the applicable double tax treaty. That refund claim is restricted to taxpayers resident within the EU or a Member State of the EEA with which Austria has a comprehensive mutual assistance agreement on administrative matters and enforcement.

Yes. 

Dividends paid on equity by a Czech resident corporation are generally subject to a 15% withholding tax. A 35% withholding tax may apply if dividends are paid to certain countries (where no double tax treaty exists with the Czech Republic or where only a treaty on exchange of information exists). In the case of Czech or EU resident corporate shareholders (plus Norway, Switzerland and Iceland resident corporate shareholders), an exemption from withholding tax on dividends may apply under some circumstances (broadly: a 12-month holding period, at least 10% shareholding, legal form of the company specified by the law). The exemption of dividends from withholding tax may also apply to other non-EU countries under specific circumstances (e.g., the recipient of dividends from the third country should be: a tax resident of the country with double tax treaty with the Czech Republic; subject to income tax of at least 12%; at least 12 months holding period; at least 10% shareholding; required legal form). Finally, a reduction of withholding tax may be applicable in case of non-Czech resident shareholders by virtue of a double tax treaty.

In addition, capital gains realized in the course of a sale may be subject to a 1% withholding tax (zajištění daně) if sold by a non-EU (or EFTA) resident to a Czech tax resident. Such withholding tax might be eliminated under a double tax treaty or based on a decision of the Czech tax authorities.

Private individuals (foreign as well as Hungarian residents)
Interest paid on publicly offered and traded instruments (“Interest Income”) is taxed at 16%, plus a 6% health care contribution is payable. Instruments listed on a regulated market of an EEA member state are considered publicly offered and traded instruments. Interest paid on privately placed instruments not listed on a regulated market of an EEA member state are taxed at a rate of 16% but may also be subject to a health care contribution of 27%.

Capital gains realized by the sale or redemption of instruments as well as dividend income is generally considered capital gains income
(“Capital Gains Income”). The tax rate applicable to Capital Gains Income is 16%, while a health care contribution of 14% (capped at HUF 450,000 (approx. EUR 1,500) is also payable.

Corporate entities (Hungarian residents)
Interest Income and Capital Gains Income realized by Hungarian resident corporate entities will be taxable in the same way as the regular
income of the entity. Up to an annual profit of the taxpayer of HUF 500 million (app. EUR 1,660,000), the general corporate income tax rate in Hungary is 10% ent; for annual profits exceeding this threshold it is 19%.

Corporate entities (foreign residents)
Interest Income and Capital Gains Income paid to foreign resident corporate entities that do not have a permanent establishment in Hungary is not subject to tax in Hungary.

Yes. 

In general capital gains realized in the course of a sale of shares, as well as dividends paid on equity received, by Polish residents (both legal persons and individuals) are subject to a 19% withholding tax in Poland.

This tax rate is not applicable if an individual sells the shares within the scope of its business activity; in this case, the capital gains will be subject to either progressive tax of rates stated in the Act on Personal Income Tax or a flat tax of 19%.

Under certain circumstances both Polish and EU or EEA- based corporate entities can be exempt from withholding tax on dividends and other capital gains from participating in the profits of the corporate entity.
The above rules are applicable to non-resident taxpayers (both legal persons and individuals) if the capital gains are realized on the territory of Poland, unless an applicable double tax treaty states otherwise.

Yes. 

Dividends paid on equity instruments issued by a Romanian resident corporation are generally subject to a 16% withholding tax. For Romanian or EU resident corporate shareholders, an exemption from Romanian withholding tax on dividends may apply under specific conditions. Also, a reduction of Romanian withholding tax may be applicable for non-resident shareholders who benefit from the more favorable provisions of the double tax treaties.

Capital gains realized upon disposal of equity investments are normally subject to a 16% income tax in Romania. The withholding tax mechanism is generally not applicable to capital gains.

No. 

Dividends paid on equity instruments (such as shares) of a corporation incorporated in Slovakia are not subject to withholding tax.

However, if the shareholder is a natural person and Slovak resident (with certain exceptions), such dividends are subject to public health insurance payments at a rate of 14% (in 2014 the maximum assessment base amounts to EUR 48,300 / year and in 2015 to EUR 49,440 / year). Non-Slovak residents are generally excluded.

Yes. 

Slovenian companies paying out dividends apply a 15% withholding tax to dividends distributed to residents and non-residents. For non-residents, a different tax rate may be stipulated by a double taxation avoidance treaty. There are certain (EU-legislation based) exemptions to the application of withholding tax.

(i) No withholding tax on dividends paid to EU/EEA (excl. Liechten- stein) residents is due if the recipient of the dividend is not able to set off Slovenian withholding tax in his country of residence. Something similar applies to payments of dividends and interest paid from Slo- venia to investment and pension funds resident in EU/EEA (excl. Liechtenstein).
(ii) There is no withholding tax if (1) a resident taxpayer notifies the dividend payer of its tax number or (2) the non-resident tax payer notifies the payer of its tax number, if dividends are paid to the non-resident’s business unit in Slovenia.
(iii) Under the implemented Parent-Subsidiary Directive 26*, no with holding tax is payable for dividends distributed between compa- nies in a parent-subsidiary relationship under certain conditions (minimum of 10% equity, shares held for at least 24 months).

There is no withholding tax due on capital gains realized on the sale of equity instruments.

*Council Directive 2003/123/EC of 22 December 2003 amending Directive 90/435/EEC on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States.

Yes. 

Dividends paid on equity instruments by a Turkish resident corporation are subject to a 15% withholding tax. Double tax treaties should be taken into consideration for non-resident shareholders to benefit from lower tax ratios.

Yes. 

Interest and similar payments on publicly placed bonds are generally subject to a 25% withholding tax if paid out via an Austrian paying agent.

In addition, capital gains realized in the course of a sale of debt instruments may also be subject to Austrian withholding tax if effected via an Austrian custodian or paying agent.

Austrian corporate bondholders may file an exemption declaration pursuant to which no Austrian withholding tax will apply on interest payments. Since Austrian tax law does not provide for a tax liability of interest payment on bonds of non-resident bondholders, an exemption from Austrian withholding tax may apply.

Note that Austrian tax law provides for a 35% EU withholding tax on interest paid or credited by an Austrian paying agent to a beneficial owner who is an individual resident in another Member State (or certain dependent or associated territories) if no exemption from such withholding applies.

Yes. 

Withholding tax may fall due on debt instruments.
Under Bulgarian domestic law, by rule, interest on debt instruments is subject to withholding tax of 10% of its gross amount. Exceptions to the rule apply in the following situations:

Exceptions for debt instruments traded on a regulated market
Tax does not fall due on:

(i) interest on bonds or other debt instruments issued by a Bulgarian legal entity and traded on a regulated market in an EU/EEA Member State; or

(ii) interest on bonds / debt instruments issued by a foreign legal entity, where (cumulatively) the issuer is a tax resident of a EU/ EEA Member State, the bonds / debt instruments are issued with the objective that the issuer would lend the proceeds from them to a Bulgarian legal entity and the bonds / debt ins- truments are traded on a regulated market in a EU/EEA Member State (including, among other countries, Bulgaria).

Exceptions for qualifying lenders and borrowers
Tax at the reduced rate of 5% falls due on interest on loans made available by foreign lenders to Bulgarian borrowers and meeting the following conditions:

(i) the beneficiary of the interest is a foreign legal entity of a qualifyIng corporate form (including, among others, limited liability companies and joint-stock companies) domiciled and taxable in a EU Mem ber State; and
(ii) the Bulgarian legal entity that owes the interest is affiliated to the foreign beneficiary (specific affiliation requirements are in place – substantial participation by the lender in the equity interest of the borrower, or vice versa, or via a third controlling party – with a stake of not less than 25% for a holding period of not less than two years).

The reduced 5% rate does not apply to certain cases of specific terms of the loan (e.g., profit-participation interest clauses).

Under a double tax treaty, the tax, where due, could be reduced to 7%, 5% or fully eliminated. Where paid, the tax would, in most cases, be capable of crediting in the state of residence (subject to the rules of the treaty).

Yes. 

Interest paid on bonds by Czech tax residents are generally subject to a 15% withholding tax. A 35% withholding tax may apply if interest is paid to certain countries (where no double tax treaty exists with the Czech Republic or where only a treaty on exchange of information exists). In case of EU resident corporate shareholders (plus Norway, Switzerland and Iceland resident corporate shareholders), an exemption from withholding tax on interest may apply under specific circumstances and subject to prior approval of the Czech tax authorities (e.g., at least 25% shareholding for at least 24 months). Furthermore, a reduction of Czech withholding tax may apply for non-Czech resident shareholders by virtue of a double tax treaty.

In addition, capital gains realized in the course of a sale of bonds may be subject to a 1% withholding tax (zajištění daně) if sold by a non-EU (or EFTA) resident to a Czech tax resident. Such withholding tax might be eliminated under a double tax treaty or based on a decision of the Czech tax authorities.

See question 7.1

Yes. 

Interest and similar payments on publicly placed bonds issued by Romanian residents are generally subject to a 16% withholding tax in Romania, except when the beneficiary is a Romanian resident corporation and the withholding tax mechanism does not apply. A reduction of Romanian withholding tax may be applicable for non-resident shareholders who benefit from the more favorable provisions of the double tax treaties.

Capital gains realized upon the disposal of equity investments are normally subject to a 16% income tax in Romania, unless the beneficiary is a non-resident corporate investor. The withholding tax mechanism is generally not applicable to capital gains.

Yes. 

In some cases. Interest and similar payments on bonds or treasury bills (unless issued by the Slovak state) are subject to 19% withholding tax if paid out to a natural person (whether Slovak tax resident or not, unless an applicable double taxation treaty provides otherwise). A tax rate of 35% applies if paid out to natural persons who are residents of certain, mostly offshore, countries.

Although a general 15% withholding tax is applicable (with exemptions) to interest payments, interest payable on most types of debt instruments (including non-convertible bonds) is effectively exempt from the withholding tax regime because no withholding tax is due on interest payments of debt instruments, if (1) they are issued by an issuer incorporated under Slovenian laws, (2) they do not contain an option for conversion into equity and (3) they are traded on a regulated market or on the multilateral trading facility in the EU/OECD state.

There is no withholding tax due on capital gains realized on the sale of debt instruments.

Yes. 

Interest and similar payments on bonds are subject to a 10% withholding tax.