Interpretation of "Offer of Securities to the Public" Under Section 2 No. 4 of the Securities Prospectus Act for Secondary Market Trading

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Interpretative decisions

24.06.2013

The following provides specific information on the future interpretation of the term "offer of securities to the public" contained in section 2 no.
4 of the
Act on the Drawing up, Approval and Publication of the Prospectus to be Published when Securities are Offered to the Public or Admitted to Trading on an Organised Market (Securities Prospectus Act - Wertpapierprospektgesetz – WpPG ):

The representation of all characteristics of a security traded on an organised market or on the regulated unofficial market (Freiverkehr) of a German stock exchange deemed characteristics by the respective issuer of that security; the online publication of bid and ask prices for the relevant securities during the trading hours of the organised market or the regulated unofficial market on which the securities are traded; and the publication of further, not merely promotional, information relating to these securities on the issuer's website, if and to the extent that the issuer has undertaken to publish such information under the respective terms of issue, or is required to do so by law or the rules of the operator of the relevant organised market or regulated unofficial market;

will no longer be deemed an offer of securities to the public for which a prospectus must be drawn up within the meaning of section 2 no.
4 of the
WpPG
, subject to the following conditions:

Where the relevant securities are being offered to the public for the first time, a prospectus was published after being approved by the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin ), or the prospectus was approved by the competent authority in another EEA signatory state, and BaFin was notified of such approval in accordance with the provisions of the home state corresponding to section 18 of the WpPG (section 17 (3) of the WpPG ). Irrespective of any earlier listing on an organised market or the regulated unofficial market, the prospectus must, while it remains valid, be updated by means of supplements in accordance with section 16 of the WpPG until such time as the issuer has finished marketing the securities in the primary market, and the securities merely continue to be the object of trading activities on the secondary market. If the marketing of securities in the primary market is not yet concluded by the end of the prospectus's term of validity as stipulated in section 9 (2) of the WpPG , a new prospectus shall be drawn up (if applicable by filing new final terms of the offer within the meaning of section 6 (3) of the WpPG ). The issuer's marketing of the relevant securities in the primary market will be deemed concluded where:

the offer period specified by the issuer in the prospectus has expired, or the issuer has announced the close of primary market trading in the manner specified in the respective (final) terms of the offer; the issuer does not undertake any active marketing activities of its own after the close of primary market trading and does not support such activities by other financial intermediaries or third parties, for example by offering sales commissions (unless they fall under an exemption from the requirement to publish a prospectus under section 3 (2) of the WpPG ); the number of securities admitted to trading on the organised market or included in the regulated unofficial market at the beginning of primary market trading is not exceeded during secondary market trading (unless the number of securities increases due to the placement of new securities of the same class, and such placement falls under an exemption from the requirement to publish a prospectus under section 3 (2) of the WpPG ); there are no direct links to online brokers or to the operators of the relevant secondary market on the same website of the issuer as that on which the characteristics of the securities can be viewed; the issuer does not publish bid and ask prices for the relevant securities on its website outside the trading hours of the relevant organised market or regulated unofficial market; and

the issuer's website outlining the relevant characteristics of the securities does not otherwise contain advertising statements regarding the presented product and the ability to acquire that product on the secondary market.

The publication by an issuer of a continually updated product information sheet in respect of its securities in accordance with section 31 (3a) of the German Securities Trading Act (Wertpapierhandelsgesetz – WpHG ) does not constitute an offer of securities to the public within the meaning of section 2 no. 4 of the WpPG , even after the conclusion of marketing in the primary market.

Even where an issuer holds available approved prospectuses and associated final terms of the offer as referred to in section 6 (3) of the WpPG , even though they are no longer valid according to section 9 of the WpPG for offers to the public, this does not constitute an offer of securities to the public within the meaning of section 2 no. 4 of the WpPG , even after the conclusion of marketing in the primary market.

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