Related provisions for GENPRU 2.2.221
Applicable sections (see SUP 3.1.1 R)
(1) Category of firm |
(2) Sections applicable to the firm |
(3) Sections applicable to its auditor |
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(1) |
Authorised professional firm which is required by IPRU(INV) 2.1.2R to comply with chapters 3, 5,1019 or 13 of IPRU(INV) and which has an auditor appointed under or as a result of a statutory provision other than in the Act9 (Note 1) 19 |
SUP 3.1, SUP 3.2, SUP 3.8,19SUP 3.10 19 |
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(2) |
Authorised professional firm not within (1) to which the non-directive custody chapter, non-directive client money chapter, MiFID custody chapter or MiFID client money chapter apply,17 , unless the firm is regulated by The Law Society (England and Wales), The Law Society of Scotland or The Law Society of Northern Ireland (Note 2) 17 |
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(3) |
Authorised professional firm not within (1) or (2) which has an auditor appointed under or as a result of a statutory provision other than in the Act |
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(4) |
Bank or building society which in either case carries on designated investment business (Note 2A) |
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(5) |
Bank or building society which in either case does not carry on designated investment business (Note 2A) |
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(5A) |
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(5B) |
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(6) |
Insurer, the Society of Lloyd's, underwriting agent or members' adviser, UK ISPV11 (Note 5)7 |
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(7) |
Investment management firm, (other than an exempt CAD firm),16personal investment firm (other than a small personal investment firm or exempt CAD firm). 15or securities and futures firm (other than an exempt CAD firm or an exempt BIPRU commodities firm20)15 which, in each case, has an auditor appointed under or as a result of a statutory provision other than in the Act9(Notes 3 and 3A)17 917 |
SUP 3.1, SUP 3.2, SUP 3.8,19SUP 3.10 19 |
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9(7A) |
Investment management firm (other than an exempt CAD firm)20, personal investment firm (other than a small personal investment firm or exempt CAD firm15), or securities and futures firm (other than an exempt CAD firm15 or an exempt BIPRU commodities firm20) not within (7) to which the non-directive custody chapter, non-directive client money chapter, MiFID custody chapter or MiFID client money chapter apply17 17 |
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9(7B) |
13 | SUP 3.1, SUP 3.2, SUP 3.8,19SUP 3.10 19 |
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13(7C) |
UK MiFID investment firm, which has an auditor appointed under or as a result of a statutory provision other than in the Act (Note 3B)20 20 |
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17(7D) |
Sole trader or partnership that is a UK20MiFID investment firm (other than an exempt CAD firm) (Note 3C)20 20 |
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(8) |
Small personal investment firm or service company which, in either case, has an auditor appointed under or as a result of a statutory provision other than in the Act |
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(9)8 |
Home finance provider10 which has an auditor appointed under or as a result of a statutory provision other than in the Act9 10 |
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(10)8 |
Insurance intermediary (other than an exempt insurance intermediary) to which the insurance client money chapter17 (except for CASS 5.2 (Holding money as agent)) applies (see Note 4)8 17 |
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(11)8 |
Exempt insurance intermediary and insurance intermediary not subject to SUP 3.1.2 R(10) which has an auditor appointed under or as a result of a statutory provision other than in the Act |
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(12)8 |
Home finance intermediary10 or home finance administrator10 which has an auditor appointed under or as a result of a statutory provision other than in the Act. 1010 |
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Note 1 = This chapter applies to an authorised professional firm in row (1) (and its auditor) as if the firm were of the relevant type in the right-hand column of IPRU(INV) 2.1.4R. |
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Note 2 = In row (2): (a) The non-directive custody chapter17 is treated as applying only if (i) the firm safeguards and administers investments17in connection with managing investments (other than when acting as trustee) or (ii) it safeguards and administers17 investments in relation to bonded investments (and, in either case, it has not opted to conduct all business that would fall within the non-directive custody chapter under the MiFID custody chapter).17 (b) The non-directive client money chapter17 is treated as applying only if the firm receives or holds client money other than under an arrangement where commission is rebated to the client (and assuming that it has not opted to conduct all business that would fall within the non-directive client money chapter under the MiFID client money chapter)17; but, if the custody rules or the client money rules above are17 treated as applying, then SUP 3.10 (Duties of auditors: notification and report on client assets) applies to the whole of the business within the scope of the custody rules or the client money rules above17. 17171717171717 |
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Note 2A = For this purpose, designated investment business does not include either or both: (a) dealing which falls within the exclusion in article 15 of the Regulated Activities Order (Absence of holding out etc) (or agreeing to do so); and (b) dealing in investments as principal (or agreeing to do so): (i) by a firm whose permission to deal in investments as principal is subject to a limitation to the effect that the firm, in carrying on this regulated activity, is limited to entering into transactions in a manner which, if the firm was an unauthorised person, would come within article 16 of the Regulated Activities Order (Dealing in contractually based investments); and (ii) in a manner which comes within that limitation; having regard to article 4(4) of the Regulated Activities Order (Specified activities:). 18 |
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Note 3 = This note applies in relation to an oil market participant to which IPRU(INV) 3 does not apply and in relation to an energy market participant to which IPRU(INV) 3 does not apply. In SUP 3: (a) only SUP 3.1, SUP 3.2 and SUP 3.7 are applicable to such a firm; and (b) only SUP 3.1, SUP 3.2 and SUP 3.8 are applicable to its auditor; and, in each case, only if it has an auditor appointed under or as a result of a statutory provision other than in the Act. |
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17Note 3A = If the firm has elected to comply with the MiFID custody chapter or the MiFID client money chapter also in respect of its non-MiFID business then SUP 3.10 will apply to the whole of the business within the scope of the MiFID custody chapter or the MiFID client money chapter. |
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20Note 3B = UK MiFID investment firms include exempt CAD firms. An exempt CAD firm that has opted into MiFID can benefit from the audit exemption for small companies in the Companies Act legislation if it meets the relevant criteria in that legislation and fulfils the conditions of regulation 4C(3) of the Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2007. If a firm does so benefit then SUP 3 will not apply to it. For further details about exempt CAD firms, see PERG 13, Q58. |
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17Note 3C20 = A sole trader or a partnership that is a UK MiFID investment firm20 to which the MiFID custody chapter or MiFID client money chapter apply20 must have its annual accounts audited. 2020 |
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Note 4 = The client money audit requirement in SUP 3.1.2 R(10) therefore applies to all insurance intermediaries except:8 • those which do not hold client money or other client assets in relation to insurance mediation activities; or 8 • those which only hold up to, but not exceeding, £30,000 of client money under a statutory trust arising under CASS 5.3.8 Insurance intermediaries which, in relation to insurance mediation activities, hold no more than that amount of client money only on a statutory trust are exempt insurance intermediaries.8 |
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Note (5) = In row (6):7 |
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(a)7 |
SUP 3.1 - SUP 3.7 applies to a managing agent in respect of its own business and in respect of the insurance business of each syndicate which it manages; and7 |
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(b)7 |
SUP 3.1, SUP 3.2 and SUP 3.8 apply to the auditors of a managing agent and the auditors of the insurance business of each syndicate which the managing agent manages.1234567 |
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Articles 3 to 23 of the PD Regulation provide for the minimum information to be included in a prospectus:
Note: the Annexes (including schedules and building blocks) referred to in these articles are set out for information in PR App 3.
Article 3 Minimum information to be included in a prospectus |
A prospectus shall be drawn up by using one or a combination of the following schedules and building blocks set out in Articles 4 to 20, according to the combinations for various types of securities provided for in Article 21. |
A prospectus shall contain the information items required in Annexes I to XVII depending on the type of issuer and securities involved, provided for in the schedules and building blocks set out in Articles 4 to 20. Subject to Article 4a(1), a1 competent authority shall not request that a prospectus contains information items which are not included in Annexes I to XVII. 1 |
In order to ensure conformity with the obligation referred to in [section 87A(2) of the Act], the [FSA], when approving a prospectus in accordance with [section 87A of the Act], may require that the information provided by the issuer, the offeror or the person asking for admission to trading on a regulated market be completed, for each of the information items, on a case by case basis. |
Article 4 Share registration document schedule |
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1. |
For the share registration document information shall be given in accordance with the schedule set out in Annex I. |
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2. |
The schedule set out in paragraph 1 shall apply to the following: |
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(1) |
shares and other transferable securities equivalent to shares; |
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(2) |
other securities which comply with the following conditions: |
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(a) |
they can be converted or exchanged into shares or other transferable securities equivalent to shares, at the issuer’s or at the investor’s discretion, or on the basis of the conditions established at the moment of the issue, or give, in any other way, the possibility to acquire shares or other transferable securities equivalent to shares, and |
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(b) |
provided that these shares or other transferable securities equivalent to shares are or will be issued by the issuer of the security and are not yet traded on a regulated market or an equivalent market outside the Community at the time of the approval of the prospectus covering the securities, and that the underlying shares or other transferable securities equivalent to shares can be delivered with physical settlement. |
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1Article 4a Share registration document schedule in cases of complex financial history or significant financial commitment |
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1. |
Where the issuer of a security covered by Article 4(2) has a complex financial history, or has made a significant financial commitment, and in consequence the inclusion in the registration document of certain items of financial information relating to an entity other than the issuer is necessary in order to satisfy the obligation laid down in Article 5(1) of Directive 2003/71/EC, those items of financial information shall be deemed to relate to the issuer. The competent authority of the home Member State shall in such cases request that the issuer, the offeror or the person asking for admission to trading include those items of information in the registration document. Those items of financial information may include pro forma information prepared in accordance with Annex II. In this context, where the issuer has made a significant financial commitment any such pro forma information shall illustrate the anticipated effects of the transaction that the issuer has agreed to undertake, and references in Annex II to “the transaction” shall be read accordingly. |
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2. |
The competent authority shall base any request pursuant to paragraph 1 on the requirements set out in item 20.1 of Annex I as regards the content of financial information and the applicable accounting and auditing principles, subject to any modification which is appropriate in view of any of the following factors: |
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(a) |
the nature of the securities; |
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(b) |
the nature and range of information already included in the prospectus, and the existence of financial information relating to an entity other than the issuer in a form that might be included in a prospectus without modification; |
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(c) |
the facts of the case, including the economic substance of the transactions by which the issuer has acquired or disposed of its business undertaking or any part of it, and the specific nature of that undertaking; |
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(d) |
the ability of the issuer to obtain financial information relating to another entity with reasonable effort. |
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Where, in the individual case, the obligation laid down in Article 5(1) of Directive 2003/71/EC may be satisfied in more than one way, preference shall be given to the way that is the least costly or onerous. |
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(3) |
Paragraph 1 is without prejudice to the responsibility under national law of any other person, including the persons referred to in Article 6(1) of Directive 2003/71/EC, for the information contained in the prospectus. In particular, those persons shall be responsible for the inclusion in the registration document of any items of information requested by the competent authority pursuant to paragraph 1. |
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(4) |
For the purposes of paragraph 1, an issuer shall be treated as having a complex financial history if all of the following conditions apply: |
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(a) |
its entire business undertaking at the time that the prospectus is drawn up is not accurately represented in the historical financial information which it is required to provide under item 20.1 of Annex I; |
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(b) |
that inaccuracy will affect the ability of an investor to make an informed assessment as mentioned in Article 5(1) of Directive 2003/71/EC; and |
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(c) |
information relating to its business undertaking that is necessary for an investor to make such an assessment is included in financial information relating to another entity. |
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(5) |
For the purposes of paragraph 1, an issuer shall be treated as having made a significant financial commitment if it has entered into a binding agreement to undertake a transaction which, on completion, is likely to give rise to a significant gross change. In this context, the fact that an agreement makes completion of the transaction subject to conditions, including approval by a regulatory authority, shall not prevent that agreement from being treated as binding if it is reasonably certain that those conditions will be fulfilled. In particular, an agreement shall be treated as binding where it makes the completion of the transaction conditional on the outcome of the offer of the securities that are the subject matter of the prospectus or, in the case of a proposed takeover, if the offer of securities that are the subject matter of the prospectus has the objective of funding that takeover. |
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(6) |
For the purposes of paragraph 5 of this Article, and of item 20.2 of Annex I, a significant gross change means a variation of more than 25%, relative to one or more indicators of the size of the issuer's business, in the situation of an issuer. |
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Recital 9 |
Pro forma financial information is needed in case of significant gross change, i. e. a variation of more than 25% relative to one or more indicators of the size of the issuer's business, in the situation of an issuer due to a particular transaction, with the exception of those situations where merger accounting is required. |
Article 5 Pro-forma financial information building block |
For pro-forma financial information, information shall be given in accordance with the building block set out in Annex II. |
Pro forma financial information should be preceded by an introductory explanatory paragraph that states in clear terms the purpose of including this information in the prospectus. |
Article 6 Share securities note schedule |
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1. |
For the share securities note information is necessary to be given in accordance with the schedule set out in Annex III. |
2. |
The schedule shall apply to shares and other transferable securities equivalent to shares |
Article 7 Debt and derivative securities registration document schedule for securities with a denomination per unit of less than EUR 50 000 |
For the debt and derivative securities registration document concerning securities which are not covered in Article 4 with a denomination per unit of less than EUR 50 000or, where there is no individual denomination, securities that can only be acquired on issue for less than EUR 50 000per security, information shall be given in accordance with the schedule set out in Annex IV. |
Article 8 Securities note schedule for debt securities with a denomination per unit of less than EUR 50 000 |
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1. |
For the securities note for debt securities with a denomination per unit of less than EUR 50 000information shall be given in accordance with the schedule set out in Annex V. |
2. |
The schedule shall apply to debt where the issuer has an obligation arising on issue to pay the investor 100% of the nominal value in addition to which there may be also an interest payment. |
Article 9 Guarantees building block |
For guarantees information shall be given in accordance with the building block set out in Annex VI. |
Article 10 Asset backed securities registration document schedule |
For the asset backed securities registration document information shall be given in accordance with the schedule set out in Annex VII. |
Article 11 Asset backed securities building block |
For the additional information building block to the securities note for asset backed securities information shall be given in accordance with the building block set out in Annex VIII. |
Article 12 Debt and derivative securities registration document schedule for securities with a denomination per unit of at least EUR 50 000 |
For the debt and derivative securities registration document concerning securities which are not covered in Article 4 with a denomination per unit of at least EUR 50 000or, where there is no individual denomination, securities that can only be acquired on issue for at least EUR 50 000per security, information shall be given in accordance with the schedule set out in Annex IX. |
Article 13 Depository receipts schedule |
For depository receipts issued over shares information shall be given in accordance with the schedule set out in Annex X. |
Article 14 Banks registration document schedule |
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1. |
For the banks registration document for debt and derivative securities and those securities which are not covered by article 4 information shall be given in accordance with the schedule set out in Annex XI. |
2. |
The schedule set out in paragraph 1 shall apply to credit institutions as defined in point (a) of Article 1(1) of Directive 2000/12/EC as well as to third country credit institutions which do not fall under that definition but have their registered office in a state which is a member of the OECD. |
These entities may also use alternatively the registration document schedules provided for under in Articles 7 and 12. |
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Article 15 Securities note schedule for derivative securities |
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1. |
For the securities note for derivative securities information shall be given in accordance with the schedule set out in Annex XII. |
2. |
The schedule shall apply to securities which are not in the scope of application of the other securities note schedules referred to in Articles 6, 8 and 16, including certain securities where the payment and/or delivery obligations are linked to an underlying. |
Article 16 Securities note schedule for debt securities with a denomination per unit of at least EUR 50,000 |
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1. |
For the securities note for debt securities with a denomination per unit of at least EUR 50 000information shall be given in accordance with the schedule set out in Annex XIII. |
2. |
The schedule shall apply to debt where the issuer has an obligation arising on issue to pay the investor 100% of the nominal value in addition to which there may be also an interest payment. |
Article 17 Additional information building block on the underlying share |
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1. |
For the additional information on the underlying share, the description of the underlying share shall be given in accordance with the building block set out in Annex XIV. |
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In addition, if the issuer of the underlying share is an entity belonging to the same group, the information required by the schedule referred to in Article 4 shall be given in respect of that issuer. |
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2. |
The additional information referred to in the first subparagraph of paragraph 1 shall only apply to those securities which comply with both of the following conditions: |
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(1) |
they can be converted or exchanged into shares or other transferable securities equivalent to shares, at the issuer’s or at the investor’s discretion, or on the basis of the conditions established at the moment of the issue or give, in any other way, the possibility to acquire shares or other transferable securities equivalent to shares; and |
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(2) |
provided that these shares or other transferable securities equivalent to shares are or will be issued by the issuer of the security or by an entity belonging to the group of that issuer and are not yet traded on a regulated market or an equivalent market outside the Community at the time of the approval of the prospectus covering the securities, and that the underlying shares or other transferable securities equivalent to shares can be delivered with physical settlement. |
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Article 18 Registration document schedule for collective investment undertakings of the closed-end type |
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1. |
In addition to the information required pursuant to items 1, 2, 3, 4, 5.1, 7, 9.1, 9.2.1, 9.2.3, 10.4, 13, 14, 15, 16, 17.2, 18, 19, 20, 21, 22, 23, 24, 25 of Annex I, for the registration document for securities issued by collective investment undertakings of the closed-end type information shall be given in accordance with the schedule set out in Annex XV. |
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2. |
The schedule shall apply to collective investment undertakings of the closed-end type holding a portfolio of assets on behalf of investors that: |
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(1) |
are recognised by national law in the Member State in which it is incorporated as a collective investment undertaking of the closed end type; or |
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(2) |
do not take or seek to take legal or management control of any of the issuers of its underlying investments. In such a case, legal control and/or participation in the administrative, management or supervisory bodies of the underlying issuer(s) may be taken where such action is incidental to the primary investment objective, necessary for the protection of shareholders and only in circumstances where the collective investment undertaking will not exercise significant management control over the operations of that underlying issuer(s). |
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Article 19 Registration document schedule for Member States, third countries and their regional and local authorities |
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1. |
For the registration document for securities issued by Member States, third countries and their regional and local authorities information shall be given in accordance with the schedule set out in Annex XVI. |
2. |
The schedule shall apply to all types of securities issued by Member States, third countries and their regional and local authorities. |
Article 20 Registration document schedule for public international bodies and for issuers of debt securities guaranteed by a member state of the OECD |
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1. |
For the registration document for securities issued by public international bodies and for securities unconditionally and irrevocably guaranteed, on the basis of national legislation, by a state which is a member of the OECD information shall be given in accordance with the schedule set out in Annex XVII. |
2. |
The schedule shall apply to: |
- all types of securities issued by public international bodies; - to debt securities unconditionally and irrevocably guaranteed, on the basis of national legislation, by a state which is a member of the OECD. |
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Article 21 Combination of schedules and building blocks |
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1. |
The use of the combinations provided for in the table set out in Annex XVIII shall be mandatory when drawing up prospectuses for the types of securities to which those combinations correspond according to this table. However, for securities not covered by those combinations further combinations may be used. |
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2. |
The most comprehensive and stringent registration document schedule, i.e. the most demanding schedule in term of number of information items and the extent of the information included in them, may always be used to issue securities for which a less comprehensive and stringent registration document schedule is provided for, according to the following ranking of schedules: |
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(1) |
share registration document schedule; |
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(2) |
debt and derivative securities registration document schedule for securities with a denomination per unit of less than EUR 50 000; |
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(3) |
debt and derivative securities registration document schedule for securities with a denomination per unit at least EUR 50 000. |
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Article 22 Minimum information to be included in a base prospectus and its related final terms |
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1. |
A base prospectus shall be drawn up by using one or a combination of schedules and building blocks provided for in Articles 4 to 20 according to the combinations for various types of securities set out in Annex XVIII. |
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A base prospectus shall contain the information items required in Annexes I to XVII depending on the type of issuer and securities involved, provided for in the schedules and building blocks set out in Articles 4 to 20. A competent authority shall not request that a base prospectus contains information items which are not included in Annexes I to XVII. |
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In order to ensure conformity with the obligation referred to in [section 87A(2) of the Act], the [FSA], when approving a base prospectus in accordance with [section 87A of the Act], may require that the information provided by the issuer, the offeror or the person asking for admission to trading on a regulated market be completed, for each of the information items, on a case by case basis. |
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2. |
The issuer, the offeror or the person asking for admission to trading on a regulated market may omit information items which are not known when the base prospectus is approved and which can only be determined at the time of the individual issue. |
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3. |
The use of the combinations provided for in the table in Annex XVIII shall be mandatory when drawing up base prospectuses for the types of securities to which those combinations correspond according to this table. However, for securities not covered by those combinations further combinations may be used. |
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4. |
The final terms attached to a base prospectus shall only contain the information items from the various securities note schedules according to which the base prospectus is drawn up. |
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5. |
In addition to the information items set out in the schedules and building blocks referred to in Articles 4 to 20 the following information shall be included in a base prospectus: |
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(1) |
indication on the information that will be included in the final terms; |
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(2) |
the method of publication of the final terms; if the issuer is not in a position to determine, at the time of the approval of the prospectus, the method of publication of the final terms, an indication of how the public will be informed about which method will be used for the publication of the final terms; |
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(3) |
in the case of issues of non equity securities according to [PR 2.2.7R (1)], a general description of the programme. |
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6. |
Only the following categories of securities may be contained in a base prospectus and its related final terms covering issues of various types of securities: |
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(1) |
asset backed securities; |
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(2) |
warrants falling under Article 17; |
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(3) |
non-equity securities provided for under [PR 2.2.7R (2)]; |
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(4) |
all other non-equity securities including warrants with the exception of those mentioned in point (2). |
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In drawing up a base prospectus the issuer, the offeror or the person asking for admission to trading on a regulated market shall clearly segregate the specific information on each of the different securities included in these categories. |
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7. |
Where an event envisaged under [section 87G(1) of the Act (Supplementary prospectus)] occurs between the time that the base prospectus has been approved and the final closing of the offer of each issue of securities under the base prospectus or, as the case may be, the time that trading on a regulated market of those securities begins, the issuer, the offeror or the person asking for admission to trading on a regulated market shall publish a supplement prior to the final closing of the offer or the admission of those securities to trading. |
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Article 23 Adaptations to the minimum information given in prospectuses and base prospectuses |
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1. |
Notwithstanding Articles 3 second paragraph and 22(1) second subparagraph, where the issuer’s activities fall under one of the categories included in Annex XIX, the [FSA], taking into consideration the specific nature of the activities involved, may ask for adapted information, in addition to the information items included in the schedules and building blocks set out in 4 to 20, including, where appropriate, a valuation or other expert’s report on the assets of the issuer, in order to comply with the obligation referred to in [sections 87A(2),(3) and (4) of the Act]. The [FSA] shall forthwith inform the Commission thereof. |
In order to obtain the inclusion of a new category in Annex XIX a Member State shall notify its request to the Commission. The Commission shall update this list following the Committee procedure provided for in Article 24 of [the prospectus directive]. |
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2. |
By way of derogation of Articles 3 to 22, where an issuer, an offeror or a person asking for admission to trading on a regulated market applies for approval of a prospectus or a base prospectus for a security which is not the same but comparable to the various types of securities mentioned in the table of combinations set out in Annex XVIII, the issuer, the offeror or the person asking for admission to trading on a regulated market shall add the relevant information items from another securities note schedule provided for in Articles 4 to 20 to the main securities note schedule chosen. This addition shall be done in accordance with the main characteristics of the securities being offered to the public or admitted to trading on a regulated market. |
3. |
By way of derogation of Articles 3 to 22, where an issuer, an offeror or a person asking for admission to trading on a regulated market applies for approval of a prospectus or a base prospectus for a new type of security, the issuer, the offeror or the person asking for admission to trading on a regulated market shall notify a draft prospectus or base prospectus to the [FSA]. |
The [FSA] shall decide, in consultation with the issuer, the offeror or the person asking for admission to trading on a regulated market, what information shall be included in the prospectus or base prospectus in order to comply with the obligation referred to in [sections 87A(2),(3) and (4) of the Act]. The [FSA] shall forthwith inform the Commission thereof. |
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The derogation referred to in the first subparagraph shall only apply in case of a new type of security which has features completely different from the various types of securities mentioned in Annex XVIII, if the characteristics of this new security are such that a combination of the different information items referred to in the schedules and building blocks provided for in Articles 4 to 20 is not pertinent. |
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4. |
By way of derogation of Articles 3 to 22, in the cases where one of the information items required in one of the schedules or building blocks referred to in 4 to 20 or equivalent information is not pertinent to the issuer, to the offer or to the securities to which the prospectus relates, that information may be omitted. |