ESMA_QA_979
Status: ✅ Answer Published
Link to ESMA Q&A tool: https://www.esma.europa.eu/publications-data/questions-answers/979
Regulatory Context
Regulation : PROSPECTUS
Level 1 Regulation: Prospectus Regulation 2017/1129
Level 2 Regulation: No information available
Level 3 Regulation: No information available
Topic: Public offer
Subject Matter: Rights issue: communication by a custodian to its clients in a member state about pre-emption rights in relation to a public offer of new shares taking place in another EEA member state
Question
Submission Date: 12 July 2019
Is the communication from a custodian to its clients (normally under its contractual duty to inform them) in respect of a rights issue in another EEA Member State (where a prospectus has been approved) in itself an “offer of securities to the public” and therefore would not be permitted unless a passport had been obtained in order to make public offers into the EEA Member State of the clients of the custodian?
ESMA Answer
Answer Date: 12-07-2019
[ESMA31-62-1258 Prospectus Q&A 4.3] ESMA considers that a communication of a custodian bank informing its clients in one Member State about their pre-emption rights in relation to a public offer of new shares taking place in another Member State or in a third country does not mean that the custodian is making a public offer in the former Member State. The PR should not be interpreted in a way that limits cross border share ownership, restricts the ability of custodians to comply with their contractual obligations or restricts shareholders’ ability to exercise their pre-emption rights. Such a communication would constitute a public offer by the custodian only if it meets the following two conditions:
- It provides to the shareholders the terms of the offer and of the shares that would enable them to decide to subscribe the share and
- The custodian acts on behalf of the offeror or issuer when making such a communication.
This document was automatically extracted from the ESMA EMIR Q&A database.