Exemptions from the obligation to publish a prospectus

For offers of securities to the public with a total consideration in the European Union of less than EUR 1,000,000, there is no obligation to draw up a prospectus under Regulation (EU) 2017/1129.

Offers in Liechtenstein with a total consideration not exceeding EUR 8,000,000 or the equivalent value in Swiss francs are exempt from the obligation to publish a prospectus, unless this offer is subject to notification in accordance with Article 25 of Regulation (EU) 2017/1129. The value of the offer must be calculated over a period of 12 months, and the restriction of the offer to Liechtenstein must be taken into account.

These exemptions based on the nature of the offer are set out in Article 1(4)(a) to (d) of Regulation (EU) 2017/1129 and apply if the offer is addressed solely to qualified investors (see Article 2(e) of Regulation (EU) 2017/1129), the offer per Member State is addressed to fewer than 150 non-qualified investors, the securities are offered in an amount of at least EUR 100,000 per offer and investor, or the denomination of the securities is at least EUR 100,000.

Article 1(4)(e) to (j) of Regulation (EU) 2017/1129 defines exemptions relating to transaction types, which apply when shares are issued in substitution for shares of the same class already issued without a capital increase; when securities are offered in connection with a takeover; when securities are offered, allotted, or to be allotted in connection with a merger or division; when dividends are paid out to shareholders in the form of shares of the same class; when securities are offered, allotted, or to be allotted to existing or former directors or employees by their employer or by an affiliated undertaking; or when certain non-equity securities are issued in a continuous or repeated manner by a credit institution, where the total aggregated consideration in the European Economic Area for the securities offered is less than EUR 75,000,000 per credit institution calculated over a period of 12 months.

Yes, exemptions from the obligation to publish a securities prospectus can be combined where the conditions for those exemptions are fulfilled at the same time.

Once a securities prospectus has been approved, the issuer may apply for the FMA to notify the securities prospectus in another EEA country (EU passporting). By notifying a securities prospectus, the securities covered by the prospectus may also be offered to the public in the country in which it has been notified. Please note that there is no notification option if a prospectus has not been approved.

In Liechtenstein, an offer of securities to the public is exempt from the obligation to publish a securities prospectus if the total consideration of such an offer over a period of 12 months does not exceed EUR 8,000,000 or the equivalent value in Swiss francs and the offer is not subject to notification in accordance with Article 25 of Regulation (EU) 2017/1129. The exemption under Article 3 EWR-WPPDG may be applied only if no notification is relevant.

In the case of offers without a prepared, approved, and published prospectus and any activity outside Liechtenstein, it must be checked for the public offer in each individual country of distribution whether this offer is permissible without the preparation and approval of a prospectus in light of an exemption. It should also be borne in mind that it is the sole responsibility and liability of the issuer to ensure that the exemption is pertinent.

In particular, it should be noted that the issue amounts referred to in the first question apply to the European Economic Area for a period of 12 months, so that any activities in several countries must be taken into account cumulatively. A nexus to a given country may already exist if the offer is accessible to potential investors in that country. Accordingly, an offer accessible without restrictions suggests in principle that investors all over the world are being addressed.

The exemptions based on the nature of the offer and in particular the restriction of distribution to qualified investors entail that offers to any investors outside the restricted circle of investors is inadmissible and must therefore be excluded already on a preventative basis.

It should be noted that any exemptions for the issuance, i.e. in relation to the primary market, do not apply to any obligations of the secondary market. Secondary market trading may accordingly require the drawing up of a prospectus, or secondary market trading may be impossible or restricted where the aforementioned exemptions are applied.

If an offer of securities to the public is exempt from the obligation to draw up a prospectus, a prospectus may be drawn up and approved voluntarily under Article 4(1) of Regulation (EU) 2017/1129. The prospectus is then subject to all provisions of that Regulation as well as supervision by the FMA and may be notified.