On 15 March 2013, the European Securities and Markets Authority (“ESMA”) issued a consultation paper on draft regulatory technical standards (the “RTS”) detailing the specific situations that require the publication of a supplement to a prospectus (the “CP”).

The CP is aimed at investors, issuers, offerors and those seeking admission to trading on a regulated market. ESMA produced the draft RTS to outline the specific situations where a significant new factor, material mistake or inaccuracy requires the publication of a supplement to a prospectus pursuant to Article 16(1) of the Prospectus Directive (Directive 2003/71/EC). For the new factor, material mistake or inaccuracy to lead to the publication of a supplement:

  1. it must be capable of affecting the assessment of the securities in question; and
  2. it must arise or be noted between the time when the prospectus is approved and the final closing of the offer to the public or the time when trading on a regulated market begins, whichever occurs later.

The RTS list the following situations as those that require a supplement to be produced:

  1. Publication of new annual audited financial statements;
  2. Profit forecast for equity securities and depositary receipts;
  3. Profit estimate for an annual financial period;
  4. Change in control of the issuer for equity securities and depositary receipts;
  5. Public takeover bids for equity securities and depositary receipts;
  6. Working Capital Statements for certain equity securities;
  7. Admission to trading or offer to the public in an additional EU Member State;
  8. New significant financial commitment for equity securities;
  9. Any judgment or concluding event of governmental, legal or arbitration proceedings already disclosed in the prospectus;
  10. Increase in aggregate nominal amount of the programme; and
  11. Other situations the respondents to the CP may highlight.

The CP consists of 35 questions dealing with each of the situations listed above. Interested parties have until 14 June 2013 to submit their responses to the CP to ESMA and all feedback will be considered when finalising the RTS that will apply. The finalised version of the RTS will be submitted to the European Commission for endorsement by 1 January 2014.