391 tal-2005 - Ordni tal-2005 li Jimplimenta d-Direttiva 2003/71/KE

L.N. 391 of 2005

EUROPEAN UNION ACT

(CAP. 460)

Implementation of Directive 2003#71#EC Order, 2005

IN virtue of the powers conferred under article 4(2) of the European

Union Act, the Prime Minister and Minister of Finance has made the

following Order>-

(1) This order may be cited as the Implementation of Citation and

commencement.

Directive 2003#71#EC Order, 2005.

(2) This Order shall come into force immediately upon

publication, provided that where any of the provisions thereof relate to

offers of securities and to prospectuses delivered or given to or served

on the Registrar on or after the 15 th December, 2005, such provisions

shall come into force on the 15 th December, 2005.

This order amends and shall be read and construed as one Amendments to the

Companies Act,

with the Companies Act, as hereinafter referred.

Article 2 of the Companies Act shall be amended as follows> Amendment of

article 2 of the

Companies Act.

(a)

in sub-article (1) thereof>

(1) immediately after the definition “appointed day”

there shall be added the following new definition>

“ “approval” in relation to a prospectus means the

positive act at the outcome of the scrutiny of the

completeness of the prospectus by the Registrar or the

regulatory authority of the Member State or EEA State,

as the case may be, including the consistency of the

information given and its comprehensibility, within the

meaning of the Prospectus Directive<”<

(2) immediately after the definition “commercial

partnership” there shall be added the following new definition>

“ “the Community” means the European

Community established by the Treaty of Rome in 1957

and amended institutionally and otherwise in 1986 by

the Single European Act, in 1993 by the Treaty on

European Union, in 1997 by the Treaty of Amsterdam

and in 2001 by the Treaty of Nice, and as amended by

accession agreements and as may be further amended

from time to time<”<

(3) immediately after the definition “directors’ report”

there shall be added the following new definitions>

“ “EEA State” means a State which is a contracting

party to the agreement on the European Economic Area

signed at Oporto on the 2 nd May, 1992 as amended by

the Protocol signed at Brussels on the 17 th March, 1993

and as amended by any subsequent acts<

“equity securities” means shares and other

securities which are equivalent to shares in companies

or which are convertible to such shares, or securities

which give such right of conversion, provided such

securities of the latter type are issued by the issuer of the

underlying shares or by an entity belonging to the group

of the said issuer, and the term ‘non-equity securities’

shall be construed as referring to all securities that are

not equity securities<” <

(4) immediately after the definition “group company”

there shall be added the following new definition>

“ home Member State” in relation to a prospectus

means>

(i) for all Community issuers of securities

which are not mentioned in paragraph (ii) hereof,

the Member State where the issuer has its registered

office<

(ii) for any issues of non-equity securities

whose denomination per unit amounts to at least

four hundred and thirty liri, and for any issues of

non-equity securities giving the right to acquire any

transferable securities or to receive a cash amount,

as a consequence of their being converted or the

rights conferred by them being exercised, provided

that the issuer of the non-equity securities is not

the issuer of the underlying securities or an entity

belonging to the group of the latter issuer, the

Member State where the issuer has its registered

office, or where the securities were offered to the

public, at the choice of the issuer or the offeror, as

the case may be. The same regime shall be

applicable to non-equity securities in a currency

other than the lira, provided that the value of such

minimum denomination is nearly equivalent to four

hundred and thirty liri<

(iii) for all issuers of securities incorporated

in a third country, which are not mentioned in

paragraph (ii) hereof, the Member State where the

securities are intended to be offered to the public

for the first time after the date of entry into force of

this provision, subject to a subsequent election by

issuers incorporated in a third country if the home

Member State was not determined by their choice.”<

(5) immediately after the definition “home Member

State” there shall be added the following new definition shall

be added>

“ “host Member State” in relation to a prospectus

means the State where an offer to the public is made,

when different from the home Member State<”<

(6) immediately after the definition “member” there

shall be added the following new definition>

“ “Member State” means a member state of the

European Community<”<

(7) immediately after the definition “Minister” there

shall be added the following new definition>

“ “money market instruments” means those classes

of instruments which are normally dealt in on the money

market, such as treasury bills, certificates of deposit and

commercial papers and excluding instruments of

payment<”<

(8) immediately after the definition “investment

company with variable share capital” there shall be added

the following new definition>

“ “issuer” means an entity having a legal

personality distinct from that of its members which issues

or proposes to issue securities<”<

(9) immediately after the definition “notice” there shall

be added the following new definition>

“ “offering programme” means a plan which would

permit the issuance of non-equity securities, including

warrants in any form, having a similar type and, or class,

in a continuous or repeated manner during a specified

issuing period<”<

(10) immediately after the definition “participating

interest” there shall be added the following new definition>

“ “person making an offer”, or “offeror”, means a

legal entity or individual which offers securities to the

public<”<

(11) immediately after the definition “prospectus”

there shall be added the following new definition>

“ “ the Prospectus Directive” means Directive

2003#71#EC of the European Parliament and of the

Council of 4 November, 2003 on the prospectus to be

published when securities are offered to the public or

admitted to trading and amending Directive 2001#34#EC,

as may be amended from time to time and includes any

implementing measures that have been issued or may

be issued thereunder<”<

(12) immediately after the definition “Registrar” there

shall be added the following new definition>

“ regulatory authority” means a body or bodies

designated by a Member State other than Malta or an

EEA State to carry out duties provided for in the

Prospectus Directive<”<

(13) in the definition “security”, for the words

“commercial partnership<”, there shall be substituted the words

“commercial partnership>

Provided that for the purpose of sub-article (3) of

this article and of Chapter III of Part V and Part A of the

Second Schedule of this Act, the definition of “security”

does not include money market instruments having a

maturity of less than 12 months<”<

(14) immediately after the definition “security”, there

shall be added the following new definition>

“ “securities issued in a continuous or repeated

manner” means issues on an ‘as required’ basis (on tap)

or at least two separate issues of securities of a similar

type and, or class over a period of 12 months<”< and

(15) immediately after the definition “shareholder”,

there shall be added the following new definition>

“ “ small and medium-sized enterprises” or “SMEs”

means companies which, according to their last annual

or consolidated accounts, meet at least two of the

following three criteria> an average number of

employees, during the financial year, of less than 250, a

total balance sheet not exceeding eighteen million and

four hundred and fifty nine thousand and nine hundred

liri and an annual net turnover not exceeding twenty one

million and four hundred and sixty five thousand liri<”<

and

(b) in sub-article (3) thereof>

(1) for paragraphs (a) and (b) thereof, there shall be

substituted the following>

“ (a) For the purposes of this Act, “offer of

securities to the public” means a communication to

persons in any form and by any means, presenting

sufficient information on the terms of the offer and the

securities to be offered, so as to enable an investor to

decide to purchase or subscribe to these securities. This

definition shall also be applicable to the placing of

securities through financial intermediaries.

(b) The following shall not constitute offers made

to the public>

(i) an offer of securities made only to

qualified investors< or

(ii) an offer made to less than one hundred

persons per Member State or EEA State, not

including qualified investors< or

(iii) an offer where the minimum

consideration which may be paid by any person for

shares acquired pursuant to the offer is at least

twenty one thousand four hundred and sixty five

liri, for each separate offer< or

(iv) an offer of securities where the nominal

value of each security amounts to at least twenty

one thousand four hundred and sixty five liri, or

the total consideration of which shall not exceed

forty two thousand nine hundred and thirty liri,

which limit shall be calculated over a period of

twelve months< or

(v) an offer where the total consideration of

the securities offered does not exceed one million

seventy three thousand two hundred and fifty liri,

which limit shall be calculated over a period of

twelve months< or

(vi) an offer in respect of non-equity

securities issued in a continuous or repeated manner

by credit institutions where the total consideration

of the offer over a period of twelve months is less

than twenty one million four hundred and sixty five

thousand liri, provided that these securities>

(a) are not subordinated, convertible

or exchangeable< and

(b) do not give a right to subscribe to

or acquire other types of securities and they

are not linked to a derivative instrument>

Provided that any subsequent resale of

securities which were previously the subject

of one or more of the types of offer mentioned

in sub-paragraphs (i) to (iv) shall be regarded

as a separate offer and the definition set out in

sub-article (3)(a) of this article regarding an

“offer of securities to the public” shall apply

for the purpose of deciding whether that resale

is an offer of securities to the public. The

placement of shares through financial

intermediaries shall be subject to publication

of a prospectus if none of the conditions

mentioned in sub-paragraphs (i) to (iv) above

are met for the final placement>

Provided further that in respect of offers

mentioned in sub-paragraphs (v) and (vi), an

offeror may draw up a prospectus in

accordance with the provisions of Part A of

the Second Schedule to this Act.”< and

(2) paragraphs (c) and (d) thereof shall be deleted and

paragraphs (e) and (f) shall be renumbered as paragraphs (c)

and (d) respectively< and

(3) immediately after paragraph (d) as renumbered

there shall be inserted the following new paragraph (e)>

“ (e) For the purposes of this Act “qualified

investors” means>

i. legal entities which are authorised or

regulated to operate in financial markets, including>

credit institutions, investment firms, other

authorised or regulated financial institutions,

insurance companies, collective investment

schemes and their management companies, pension

funds and their management companies,

commodity dealers, as well as entities not so

authorised or regulated whose corporate purpose

is solely to invest in securities<

ii. national and regional governments,

central banks, international and supranational

institutions such as the International Monetary

Fund, the European Central Bank, the European

Investment Bank and other similar international

organisations<

iii. other legal entities which do not meet two

of the three criteria set out in the definition of “small

and medium-sized enterprises”<

iv. subject to mutual recognition, natural

persons who are resident in Malta and who

expressly ask to be considered as qualified investors

if these persons meet at least two of the criteria set

out below<

v. subject to mutual recognition, small and

medium-sized enterprises which are registered in

Malta and which expressly ask to be considered as

qualified investors.

For the purposes of paragraph (iv), the criteria

are as follows>

(i) the investor has carried out financial

transactions of a significant size on securities

markets at an average frequency of, at least,

ten per quarter over the previous four quarters<

(ii) the size of the investor’s securities

portfolio exceeds two hundred and fourteen

thousand six hundred and fifty liri<

(iii) the investor works or has worked

for at least one year in the financial sector in a

professional position which requires

knowledge of securities investment.

For the purposes of paragraphs (iv) and

(v), the Registrar shall keep a register of natural

persons and small and medium-sized

enterprises considered as qualified investors.

The register shall be available to all issuers.

Each natural person or small and medium-

sized enterprises wishing to be considered as

a qualified investor shall request to be included

in such register and each registered investor

may decide to opt out at any moment.”.

Article 89 of the Companies Act shall be amended as follows>

(a) sub-article (1) thereof shall be re-numbered as the whole

article 89<

(b) in the proviso to article 89 as re-numbered, for the words

“the provisions of this Chapter shall not apply to a form of

application issued either-”, there shall be substituted the words

“the provisions of this Chapter, including the obligation to draw

up a prospectus, shall not apply to a form of application issued - ”<

(c) for paragraph (b) of the proviso, there shall be substituted

the following>

“(b) in relation to securities which do not constitute

an “offer of securities to the public” within the meaning of

sub-article (3) of article 2<”<

(d) in paragraph (c) of the proviso, for the words “regulations

made under that Act.” there shall be substituted the words

“regulations made under that Act< or”<

(e) immediately after paragraph (c) of the proviso, the

following new paragraphs shall be added>

“(d) an offer where the shares are offered for no

consideration and is made exclusively to existing shareholders,

and dividends paid out in the form of shares of the same class

as the shares in respect of which such dividends are paid,

provided that a document is made available containing

information on the number and nature of the shares and the

reasons for and details of the offer< or

(e) an offer where shares are allotted to existing or

former directors or employees by their employer which has

shares already admitted to trading on a recognised investment

exchange or by an affiliated undertaking, provided that a

document is made available containing information on the

number and nature of the shares and the reasons for and details

of the offer< or

(f) shares issued on the redemption or reduction of

shares of the same class already issued, if the issuing of such

new shares does not involve any increase in the issued capital<

or

(g) an offer made in connection with a take-over bid,

provided that a document is available containing information

which is regarded by the Registrar as being equivalent to that

of the prospectus< or

(h) an offer made in connection with or pursuant to a

proposed merger, provided that a document is available

containing information which is regarded by the Registrar as

being equivalent to that of the prospectus.”< and

(f)

sub-article (2) thereof shall be deleted.

In sub-article (1) of article 90 of the Companies Act, for the

words “Part I of the Second Schedule and set out the reports specified

in Part II of that Schedule” there shall be substituted the words “ Part A

of the Second Schedule”.

The second proviso in article 91 of the Companies Act shall

be deleted.

For sub-article (1) of article 93 of the principal Act, there

shall be substituted the following>

“(1) No prospectus shall be issued unless, on or before the

date of its publication as specified in article 99, a copy thereof,

signed by every person named therein as a director of the company

or his agent authorised in writing, has been delivered to the

Registrar. Upon being satisfied that the requirements of this Chapter

and Part A of the Second Schedule have been complied with, the

Registrar shall register it. Such prospectus must have endorsed

thereon or attached thereto any consent to the issue of the prospectus

required by article 92 from any person as an expert.”.

Immediately after sub-article (2) of article 94 of the Companies

Act, there shall be added the following new sub-article>

“(3) No person shall be liable for statements made in the

summary referred to in Part A of the Second Schedule to this Act,

including the translation thereof, except when such statements are

untrue when read together with the other parts of the prospectus.”.

In paragraph (a) of sub-article (1) of article 96 of the Companies

Act, for the words “in which it is included” there shall be substituted

the words “in which it is included or otherwise inaccurate or

inconsistent”.

Article 99 of the Companies Act shall be amended as follows>

(a) in sub-article (1) thereof for the words “beginning of

the third working day” there shall be substituted by the following

“beginning of the sixth working day”, and for the words “prospectus

has been issued” there shall be substituted the words “prospectus

has been issued, indicating therein where the issuer or offeror has

made available, free of charge, a paper copy of the full prospectus”<

and

(b) in sub-article (2) thereof, for the words “said third

working day” there shall be substituted the words “said sixth

working day”.

In paragraph (a) of sub-article (1) of article 185 of the Amendment of

article 185 of the

Companies Act for the words “shall in this Act” there shall be substituted Companies Act.

the words “shall in this Chapter”.

In the heading of Chapter II of Part XI of the Companies Amendment of

Act, for the words “incorporated outside Malta” there shall be substituted heading

of the Companies

the words “incorporated outside Malta in a non-Member State or non- Act.

EEA State”.

Chapter II of Part XI of the principal Act shall be amended Amendment of Part

XI of the

as follows>

Companies Act.

(a) for the words “incorporated outside Malta” wherever

they occur there shall be substituted the words “incorporated outside

Malta in a non-Member State or non-EEA State”< and

(b) for the words “Second Schedule” wherever they occur

there shall be substituted the words “Part B of the Second

Schedule”.

Sub-article (1) of article 425 of the Companies Act shall be Amendment of

article 425 of the

amended as follows>

Companies Act.

(a) in paragraph (k) thereof for the words “regulating such

oversea companies< and” there shall be substituted the words

“regulating such oversea companies<”<

(b)

paragraph (l) thereof shall be renumbered as paragraph

(n)< and

(c) immediately after paragraph (k) there shall be added the

new paragraphs (l) and (m) as follows>

“(l) prescribe requirements in relation to the drawing-

up, approval, publication and distribution of prospectuses

relating to an offer to the public of securities and such

requirements may stipulate any further conditions necessary

to implement the Prospectus Directive<

(m) transpose and implement Community Company

Law Directives< such regulations may provide for such

exemptions, modifications, adaptations and variations of any

of the provisions of this Act and may introduce conditions or

qualifications thereto as may be specified and as may be

necessary for the transposition and implementation of such

Directives< and”.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press