S.I. No. 202/1992 - European Communities (Transferable Securities and Stock Exchange) Regulations, 1992.

1. Where an offer to the public is for part only of the securities from a single issue, it shall not be necessary to publish another prospectus if the other part is subsequently offered to the public.

2. The publication referred to in Article 10.4 of the Prospectus directive shall be "The Stock Exchange Official List — Irish".

3. The person making a public offer may draw up the prospectus in a manner described in Article 12 of the Prospectus Directive.

4. There shall be added to the information contained in a prospectus as approved by a competent authority in another Member State of the European Communities pursuant to Article 20 of the Prospectus Directive, so far as not included therein as so approved, the following information:—

(

a

) a summary of the tax treatment of Irish resident holders of the securities,

(

b

) the names and addresses of the paying agents for the securities in Ireland (if any), and

(

c

) a statement of how notice of meetings and other notices from the issuer of the securities will be given to Irish resident holders of the securities.

5. Article 21 of the Prospectus Directive shall apply and have effect only in relation to prospectuses concerning transferable securities of issuers who have their registered offices in a Member State of the European Communities.

GIVEN under my Official Seal this 17th day of July, 1992.

DESMOND O'MALLEY,

Minister for Industry and Commerce.

EXPLANATORY NOTE.

The purpose of these Regulations is to implement two EEC Directives with effect from 1 September 1992.

The first, Council Directive 89/298/EEC of 17 April 1989, co-ordinates the requirements for the drawing up, scrutiny and distribution of the prospectus to be published when transferable securities are offered to the public.

The second, Council Directive 90/211/EEC of 23 April 1990, extends the principle of mutual recognition to provide that, where any public offer prospectus is approved by a Member State competent authority, then the prospectus can be used as a full listing particulars prospectus in any other Member State.

6. Where certain information specified in paragraph 2 is found to be inappropriate to the issuer's sphere of activity or its legal form or to the transferable securities being offered, a prospectus giving equivalent information must be drawn up.

7. Where shares are offered on a pre-emptive basis to shareholders of the issuer on the occasion of their admission to dealing on a stock exchange market, the Member States or bodies designated by them may allow some of the information specified in paragraph 2 (

d

), (

e

) and (

f

) to be omitted, provided that investors already possess up-to-date information about the issuer equivalent to that required by Section III as a result of stock exchange disclosure requirements.

8. Where a class of shares has been admitted to dealing on a stock exchange market, the Member States or bodies designated by them may allow a partial or complete exemption from the obligation to publish a prospectus if the number or estimated market value or the nominal value or, in the absence of a nominal value, the accounting par value of the shares offered amounts to less than 10 per cent of the number or of the corresponding value of shares of the same class already admitted to dealing, provided that investors already possess up-to-date information about the issuer equivalent to that required by Section III as a result of stock exchange disclosure requirements.

Article 12.

S.I. No. 202 of 1992.

EUROPEAN COMMUNITIES (TRANSFERABLE SECURITIES AND STOCK EXCHANGE) REGULATIONS, 1992.

I, DESMOND O'MALLEY, Minister for Industry and commerce, in exercise of the powers conferred on me by

section 3

of the

European Communities Act, 1972

(No. 27 of 1972), and for the purpose of giving effect to the provisions of Council Directive No. 89/298/EEC of 17 April, 1989

(1)

and Council Directive No. 90/211/EEC of 23 April, 1990

(2)

hereby make the following Regulations

PART I. Preliminary.

1 Citation, commencement and construction.

1.

(1) These Regulations may be cited as the European Communities (Transferable Securities and Stock Exchange) Regulations, 1992.

(2) These Regulations shall come into operation on the 1st day of September, 192.

(3) These Regulations shall be construed as one with the Companies Acts, 1963 to 1990.

2 Interpretation.

2.

(1) In these Regulations—

"the Listing Particulars Directive" means Council Directive No. 80/390/EEC of 17 March 1980,

(3)

as amended by Council Directive No. 87/345/EEC of 22 June 1987

(4)

and as further amended by Council Directive No. 90/211/EEC of 20 April 1990

(2)

;

"the 1984 Regulations" means the European Communities (Stock Exchange) Regulations, 1984 (

S.I. No. 282 of 1984

), as amended by the 1991 Regulations;

(1)

O.J. No. L124, 5-5-1989 pp. 8-15.

(2)

O.J. No. L112, 3.5.1990 pp. 24-25.

(3)

O.J. No. L100, 17-4-1980 pp. 1-26.

(4)

O.J. No. L185, 4-7-1987 pp. 81-83.

"the 1991 Regulations" means the European Communities (Stock Exchange) (Amendment) Regulations, 1991 (

S.I. No. 18 of 1991

);

"the directives" means

—Council Directive No. 89/298/EEC of 17 April, 1989,

(1)

and

—Council Directive No. 90/211/EEC of 23 April, 1990

(2)

set out in the First Schedule and the Second Schedule to these Regulations, respectively;

"the Minister" means the Minister for Industry and Commerce;

"the Irish Stock Exchange" means the Committee of the Irish Unit of the International Stock Exchange of the United Kingdom and the Republic of Ireland Limited.

(2) Reference to ann Article or other provision of either of the directives shall be taken as a reference to that Article or that provision of that directive as set out in the First Schedule and Second Schedule to these Regulations, as appropriate.

(3) A word or expression that is used in these Regulations and is also used in either of the directives shall, unless the contrary intention appears, have in these Regulations the same meaning as it has in the directive in which it is used.

PART II. Application of the Prospectus Directive (No. 89/298/EEC).

3 Interpretation of Part II.

3.

In this Part—

"the Prospectus Directive" means Council Directive No. 89/298/EEC of 17 April, 1989

(1)

set out in the First Schedule to these Regulations;

"securities" has the same meaning as "transferable securities" in Article 3 of the Prospectus Directive.

(1)

O.J. No. L124, 5-5-1989 pp. 8-15.

(2)

O.J. No. L112, 3.5.1990 pp. 24-25.

4 Application of Prospectus Directive.

4.

Subject to the provisions of this Part of these Regulations, the requirements of the Prospectus Directive shall have effect and be applied accordingly.

5 Optional powers conferred on Member States by Prospectus Directive.

5.

The Third Schedule to these Regulations shall have effect for the purpose of determining the manner in which the provisions of the Prospectus Directive shall apply for the purposes of these Regulations.

6 Duty to publish a Prospectus where securities are offered to the public.

6.

Subject to Regulation 21 of these Regulations, it shall not be lawful to issue any form of application for the securities of a company unless the form is issued with a prospectus which complies with the requirements of this Part and the issue of which does not contravene

section 46

of the

Companies Act, 1963

.

7 ..

7.

The obligation in Regulation 6 shall not apply to,

(

a

) the types of offer and types of securities described in Article 2 of the Prospectus Directive;

(

b

) securities referred to in Article 5 of the Prospectus Directive.

8 Content of the prospectus.

8.

(1) Every prospectus issued by or on behalf of an issuer shall contain the information which, according to the particular nature of the issuer and of the securities concerned, is necessary to enable an informed assessment to be made of the assets and liabilities, financial position, profits and losses and prospects of the company and of the rights attaching to the securities.

(2) Without prejudice to the generality of paragraph (1), a prospectus stating at least the matters specified,

(

a

) in Article 11.2 to 11.6 of the Prospectus Directive but subject to the permissible exemptions provided in the said Directive or by these Regulations, and

(

b

) so far as not already required therein, but subject to paragraphs (3) and (4), by the Third Schedule to the

Companies Act, 1963

,

shall be regarded as complying with paragraph (1).

(3) The application of the Third Schedule of the

Companies Act, 1963

to a prospectus issued under these Regulations shall be modified by the substitution, in paragraphs 6, 8, 11, 13, 14, 19, 20 and 21 of the said Schedule, in each place where they occur, of "3 years" for "5 years" and "3 financial years" for "5 financial years".

(4) Where, having regard to the proposals as to the size and other circumstances of the issue of securities, compliance under paragraph (2) (

b

) with the requirements of the Third Schedule to the

Companies Act, 1963

would be unduly burdensome, the Irish Stock Exchange may allow some of the information specified in the said Schedule to be omitted from the prospectus.

9 Designation of body.

9.

(1) The Irish Stock Exchange is hereby designated for the purposes of Articles 11.7, 11.8, 13.1 and 13.2 of the Prospectus Directive as the body which may authorise the omission or exemption of the information specified in the respective Articles in the circumstances provided. The Irish Stock Exchange is also designated for the purposes of Article 19 of the Prospectus Directive.

(2) Regulations 7, 8 and 9 of the 1984 Regulations shall apply to the Irish Stock Exchange in the discharge of its responsibilities under paragraph (1).

10 Liability of issuer.

10.

(1) In the event of noncompliance with or contravention of the obligation referred to in Article 4 of the Prospectus Directive, the person making the offer shall not incur any liability by reason of the non-compliance or contravention if—

(

a

) in relation to any matter not disclosed, he proves that he did not know it; or

(

b

) he proves that the noncompliance or contravention arose from an honest mistake of fact on his part; or

(

c

) the noncompliance or contravention was in respect of matters which, in the opinion of the Court dealing with the case, were immaterial or were otherwise such as ought, in the opinion of the Court, having regard to all the circumstances of the case, reasonably to be excused.

(2) Nothing in this Regulation shall be construed so as to limit or diminish any liability which any person may incur under the law of the State apart from these Regulations.

(3) An issuer shall not be liable in damages by reason only of noncompliance with, or contravention of, the provisions of these Regulations (other than paragraph (1) of this Regulation) provided that any such non compliance or contravention does not give rise to any liability under any provision of the

Companies Act, 1963

.

11 Registration of prospectus.

11.

Every prospectus issued under these Regulations shall be registered with the registrar of companies in compliance with

section 47

of the

Companies Act, 1963

.

12 Publication of prospectus.

12.

Prospectuses issued under these Regulations, for which admission to official Stock Exchange listing is not sought, must be made available to the public

(

a

) by notice in one or more national daily newspapers circulating in the State, and

(

b

) in the form of a prochure to be made available, free of charge, to the public at the registered office of the issuer and at the offices of the financial organisation retained to act as the issuers paying agent.

13 Time of publication.

13.

Prospectuses issued under these Regulations must be published or made available to the public, not later than the time the offer is made to the public.

14 Designation of body.

14.

The registrar of companies is hereby designated for the purposes of Articles 14 and 19 of the Prospectus Directive and shall have all the powers required to be conferred on, or which the State is permitted to confer on, the competent authority by the directive.

15 Liability of designated body.

15.

(1) The registrar of companies shall not be liable in damages by reason only of noncompliance with, or contravention of, any obligation imposed by or by virtue of these Regulations, nor shall he be so liable in respect of anything done or omitted to be done by him in connection with the exercise by him of his functions as designated body, unless the act or omission complained of was done or omitted to be done in bad faith.

(2) No transaction shall be void or voidable by reason only of the fact that it was entered into in contravention of, or not in conformity with, these Regulations.

16 Office of designated body.

16.

(1) The Companies REgistration Office, being the office maintained for the purposes of the registration of companies under the Companies Acts, 1963 to 1990, is hereby designated as the office of the registrar of companies.

(2) Any document may be served on the registrar of companies by leaving it at, or sending it by post to, the office maintained pursuant to paragraph (1) of this Regulation.

17 Annual Report of designated body.

17.

(1) The registrar of companies shall report annually to the Minister on the exercise of his functions as the designated body in the State under the Prospectus Directive and under these Regulations.

(2) The Irish Stock Exchange shall include in its annual report required under Regulation 11 of the 1984 Regulations a report on the exercise of its functions as the designated body in the State under the Prospectus Directive and under these Regulations.

18 Co-operation with authorities outside the State.

18.

The registrar of companies and the Irish Stock Exchange shall, within the framework of their respective responsibilities under these Regulations, comply with Article 19 of the Prospectus Directive.

19 Scrutiny of prospectuses.

19.

It is hereby declared, for the avoidance of doubt, that the Irish Stock Exchange, which is designated as the competent authority by Regulation 7 of the 1984 Regulations for, inter alia, the Listing Particulars Directive, shall be the competent authority for the purposes of the application of Articles 7, 10 and 12 of the Prospectus Directive.

20 Offences.

20.

(1) The restrictions referred to in Article 23 of the Prospectus Directive shall apply to all persons employed, or formerly employed, by the Irish Stock Exchange in the exercise of its functions as competent authority.

(2) Any person who fails to comply with the provisions of paragraph (1) of this Regulation or who knowingly publishes any information required to be published by the Directives which is false or misleading in any material respect shall be guilty of an offence and shall be liable on summary conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding £1,000 or to both.

(3) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of a director, manager, secretary or other officer of that body, the director, manager, secretary, other officer or any person purporting to act in such a capacity shall be guilty of an offence.

(4) Proceedings in relation to an offence under these Regulations may be brought and prosecuted by the Minister.

21 Non application of certain provisions of the

Companies Act, 1963

.

21.

(1) Where the relevant documents have been registered with the registrar of companies in accordance with Articles 14 and 21 of the Prospectus Directive, the provisions of these Regulations shall apply.

(2) Where application has been made to the Irish Stock Exchange for admission to listing and the relevant listing particulars have been approved by the Irish Stock Exchange in accordance with Article 7 of the Prospectus Directive, the provisions of this Regulation shall also apply.

(3) Notwithstanding the provisions of

section 44

(3) or

361

(4) of the

Companies Act, 1963

, a form of application for securities to which the Prospectus Directive applies need not have attached to it a prospectus in the form required by that Act if the form of application is issued with a document which sets out the details required by these Regulations or indicates where such particulars can be obtained or inspected.

(4) Where an offer for a subscription or purchase of securities to which the Prospectus Directive applies is made in the manner referred to in paragraph (3) of this Regulation, the details registered with the registrar of companies or the listing particulars approved by the Irish Stock Exchange, as appropriate, shall be deemed to be a prospectus within the meaning of the

Companies Act, 1963

, and in any such case the provisions of sections 43, 44 (1), 45, 361 (1) (

b

), 361 (2), 362 and 364 of that Act shall not apply.

PART III. Application of Directive 90/211/EEC.

(2)

22 Interpretation of Part III.

22.

In this Part—

"the 1990 Directive" means Council Directive No. 90/211/EEC of 23 April 1990

(2)

set out in the Second Schedule to these Regulations;

(2)

O.J. No. L112, 3.5.1990 pp. 24-25.

"the 1987 Directive" means Council Directive No. 87/345/EEC of 22 June 1987

(4)

.

23 Amendment of the 1984 Regulations.

23.

(1) Regulation 2 (1) of the 1984 Regulations, as amended by Regulation 3 (1)

(c)

of the 1991 Regulations, is hereby further amended by the substitution for the definition of "the Listing Particulars Directive" of the following

" 'the Listing Particulars Directive' means Council Directive No. 80/390/EEC of 17 March 1980 as amended by Council Directive No. 87/345/EEC of 22 June 1987 and as further amended by Council Directive No. 90/211/EEC of 20 April 1990, the texts of which, in the English language, are set out in the Third and Fourth Schedules, respectively, to these Regulations;".

(2) The 1984 Regulations, as amended by the 1991 Regulations, are hereby further amended by the insertion of the text of the Second Schedule to these Regulations as the Fourth Schedule to the 1984 Regulations.

24 References in the 1984 Regulations to Articles of Directive 80/390/EEC.

24.

(1) Reference in paragraph (

e

)

of Regulation 11 of the 1984 Regulations to Article 24 of the Listing Particulars Directive shall be construed as reference to Article 24c, as inserted by the 1987 Directive.

(2) Reference in paragraph 11 of the Second Schedule to the 1984 Regulations, as inserted by the 1991 Regulations, to Article 24b of the Listing Particulars Directive shall be construed as references too that Article as amended by the 1990 Directive.

FIRST SCHEDULE.

THE PROSPECTUS DIRECTIVE.

COUNCIL DIRECTIVE.

of 17 April 1989,

coordinating the requirements for the drawing-up, scrutiny and distribution of the prospectus to be published when transferable securities are offered to the public.

(89/298/EEC)

The Council of the European Communities,

Having regard to the Treaty establishing the European Economic Community, and in particular Article 54 thereof,

(4)

O.J. No. L185, 4-7-1987 pp. 81-83.

Having regard to the proposal from the Commission

(1)

In cooperation with the European Parliament

(2)

Having regard to the opinion of the Economic and Social Committee

(3)

Whereas investment in transferable securities, like any other form of investment, involves risks; whereas the protection of investors requires that they be put in a position to make a correct assessment of such risks so as to be able to take investment decisions in full knowledge of the facts;

Whereas the provision of full, appropriate information concerning transferable securities and the issuers of such securities promotes the protection of investors;

Whereas, moreover, such information is an effective means of increasing confidence in transferable securities and thus contributes to the proper functioning and development of transferable securities markets;

Whereas a genuine Community information policy relating to transferable securities should therefore be introduced; whereas, by virtue of the safeguards that it offers investors and its impact on the proper functioning of transferable securities markets, such an information policy is capable of promoting the interpretation of national transferable securities markets and thus encouraging the creation of a genuine European capital market;

Whereas Council Directive 80/390/EEC of 17 March 1980 coordinating the requirements for the drawing-up, scrutiny and distribution of the listing particulars to be published for the admission of securities to official stock exchange listing

(4)

, as last amended by Directive 87/345/EEC

(5)

, represents an important step in the implementation of such a Community information policy; whereas that Directive coordinates the information to be published when securities are admitted to stock exchange listing concerning the nature of the securities offered and the issuers of such securities, so as to enable investors to make an informed assessment of the assets and liabilities, financial position, profits and losses and prospects of issuers and of the rights attaching to such securities;

Whereas such an information policy also requires that when transferable securities are offered to the public for the first time in a Member State, whether by, or on behalf of the issuer or a third party, whether or not they are subsequently listed, a prospectus containing information of this nature must be made available to investors; whereas it is also necessary to coordinate the contents of that prospectus in order to achieve equivalence of the minimum safeguards afforded to investors in the various Member States;

Whereas, so far, it has proved impossible to furnish a common definition of the term 'public offer' and all its constituent parts;

Whereas, in cases where a public offer is of transferable securities which are to be admitted to official listing on a stock exchange, information similar to that required by Directive 80/390/EEC, whilst being adapted to the circumstances of the public offer, must be supplied; whereas, for public offers of transferable securities that are not to be admitted to official stock exchange listing, less detailed information can be required so as not to burden small and medium-sized issuers unduly; whereas, for public offers of transferable securities that are to be admitted to official stock exchange listing, the degree of coordination achieved is such that a prospectus approved by the competent authorities of a Member State can be used for public offers of the same securities in another Member State on the basis of mutual recognition; whereas mutual recognition should also apply where public offer prospectuses comply with the basic standards laid down in Directive 80/390/EEC and are approved by the competent authorities even in the absence of a request for admission to official stock exchange listing;

(1)

O.J. No. C226, 31, 8, 1982, p. 4.

(2)

O.J. No. C125, 17.5.1982, p. 176 and O.J. No. C69, 20.3.1989.

(3)

O.J. No. C. 310, 30.11.1981, p. 50.

(4)

O.J. No. L100, 17.4.1980, p. 1.

(5)

O.J. No. L185, 4.7.1987, p. 81.

Whereas in order to ensure that the purposes of this Directive will be fully realized it is necessary to include within the scope of this Directive transferable securities issued by companies or firms governed by the laws of third countries;

Whereas it is advisable to provide for the extension, by means of agreements to be concluded by the Community with third countries, of the recognition of prospectuses from those countries on a reciprocal basis

Has adopted this directive

SECTION I.

General provisions.

Article 1.