In brief: filing and documentary requirements for debt securities offerings in Greece

Filing and documentary requirements

Give details of any filing requirements for public offerings of debt securities. Outline any requirements for debt securities that are not applicable to offerings of other securities.

The process and requirements for the approval of a prospectus by the Hellenic Capital Markets Commission (HCMC) for a public offering or admission to trading, or both, of debt securities on a regulated market in Greece is set out in detail in HCMC Decision No. 2/892 of 13 October 2020, issued on the basis of the Prospectus Law.

The application for HCMC approval must be accompanied by, among other things, the issuer’s confirmation that it complies with corporate governance legislation and a conflict-of-interest statement by the persons involved in the offering process. Supporting material must include the necessary corporate resolutions and financial statements of the issuer.

Following approval by the HCMC and publication of the prospectus (when required), a separate process begins and special requirements must be met for the admission to trading on ATHEX as provided by Law No. 3371/2005, transposing Directive 2001/34/EC (Listing Directive), and the ATHEX Rulebook.

Although the filing requirements for debt securities are materially the same as for other securities, different requirements apply to the prospectuses of entities whose shares are already listed on a regulated market.

In a public offering of debt securities, must the issuer produce a prospectus or similar documentation? What information must it contain?

In accordance with the Prospectus Law and the Prospectus Regulation (jointly, the Prospectus Legislation), the obligation to publish a prospectus applies only to public offers with a total consideration in the European Union of at least €5 million, calculated over a period of 12 months. However, certain exemptions may apply, even when the threshold of €5 million is exceeded.

A prospectus must contain all the information that is material to an investor for making an informed assessment of:

• the issuer’s (and any guarantor’s) assets and liabilities, profits and losses, financial position, and prospects;
• the rights attaching to the securities; and
• the reasons for the issuance and its impact on the issuer.

The required information must be presented in a summary, a registration document (including information on the issuer) and a securities note (including information on the securities). These comprise the main parts of the prospectus.

The exact content of the prospectus for debt securities is set out in detail (depending on whether there is an initial or secondary issuance) in Annexes 6 and 8 (for the registration document) and Annexes 14 and 16 (for the securities note) of Commission Delegated Regulation (EU) No. 2019/980 (the 2019 Delegated Regulation).

Describe the drafting process for the offering document.

The key issues in the preparation of a prospectus depend on the issuer’s business. In most cases, the drafting of risk factors is essential, as are the terms and conditions of the bonds contained in the programme of the bond loan in accordance with Law No. 4548/2018 on sociétés anonymes, which includes the purpose of the bond loan, obligations and events of default. Reports of legal and financial due diligence and financial information in connection to the issuer are also key elements to consider.

The key criterion used to determine if a disclosure must be made in the prospectus is whether there is an initial or secondary issuance of debt securities. In cases of initial issuance, more information needs to be provided in accordance with Annexes 6 and 14 of the 2019 Delegated Regulation. In secondary issuances, a simplified disclosure regime should be followed, in accordance with Annexes 8 and 16 of the 2019 Delegated Regulation. Further, certain materiality thresholds are usually agreed upon between the issuer, its advisers and the joint coordinators regarding the disclosure of information, such as in relation to material agreements or pending litigation.

In private offerings of debt securities, there is no requirement for prospectus publication.

Which key documents govern the terms and conditions of the debt securities? Who are the parties to such documents? How can such documents be accessed?

The key documents governing the terms and conditions of debt securities and forming part of the prospectus are the programme of the bond loan and the securities note, which includes information related to the terms and conditions of the securities and the offer.

The programme is an agreement concluded between the issuer and the bondholder agent appointed by the issuer to act on behalf of the bondholders and serve the bondholders’ interests.

In most cases, an agreement for the appointment of the bondholder agent and an agreement for the appointment of the paying agent are also concluded between the bondholder agent and paying agent respectively, along with the issuer. Finally, each potential investor executes a subscription application to participate in the public offering, which is a simple form document for the purchase of the debt securities.

After the prospectus, including the securities note and the programme, is approved, it is published and accessible on the websites of ATHEX, the HCMC, the issuer, the joint coordinators and bookrunners, and the underwriters.

Does offering documentation require approval before publication? In what forms should it be available?

The prospectus, submitted along with supporting material to the HCMC, is published following approval by the HCMC and is available on the websites of ATHEX, the HCMC, the issuer, the joint coordinators and bookrunners, and the underwriters. A hard copy of the prospectus is also available at the offices of the issuer, the joint coordinators and bookrunners, and the underwriters.

Are public offerings of debt securities subject to review and authorisation? What is the time frame for approval? What are the restrictions imposed, if any, on the issuer and the underwriters during the review process?

Public offerings of debt securities are subject to HCMC prospectus approval in accordance with the Prospectus Legislation, with some exceptions.

The process governed by HCMC Decision No. 2/892 of 13 October 2020, involves the submission to the HCMC of at least two drafts of the prospectus with detailed comments by the HCMC expected on each draft in the interim. After the HCMC’s response on the first draft, the issuer must submit a second draft within 30 business days.

The prospectus must be approved within 10 business days of submission, which may be extended to 20 business days for a public offer by a first-time issuer. The HCMC may request promptly (and within the above time frame) supplementary information or changes to the prospectus to ensure completeness, comprehensibility and consistency. In that case, the above time limits apply only from the date of submission of the revised draft prospectus or supplementary information. Any failure by the HCMC to make a decision on the prospectus within the aforementioned time frames is not deemed to constitute approval of the prospectus.

During the review process and until the approval of the prospectus, the issuer and the underwriters must not engage in advertisements in the sense of article 2(k) of the Prospectus Regulation.

On what grounds may the regulators refuse to approve a public offering of securities?

The HCMC examines whether the draft prospectus complies with the Prospectus Legislation and may refuse to approve a prospectus and terminate the review process where the issuer, the offeror or the person asking for admission to trading on a regulated market:

• is unable or unwilling to make the necessary changes or to provide the supplementary information it requested;
• is unable to fulfil its obligations under the Prospectus Legislation; or
• has repeatedly committed serious infringements of the Prospectus Legislation.

Moreover, the prospectus approval may be refused if the issuer’s auditors or managers do not provide any additional information requested by the HCMC.

The HCMC may also suspend the review of an application if product intervention measures are taken in accordance with article 42 of Regulation (EU) No. 2014/600.

How do the rules differ for public and private offerings of debt securities? What types of exemptions from registration are available?

In the absence of explicit rules, a private offering is defined in contradistinction to a public offering in the sense of article 2(d) of the Prospectus Regulation. More specifically, a private offering is understood as an offering that falls outside the scope of the prospectus requirements under article 1(4) of the Prospectus Regulation.

The most common safe harbours from prospectus requirements include the offering of debt securities in Greece that are:

• addressed solely to qualified investors;
• addressed to fewer than 150 natural or legal persons per EU member state, other than qualified investors;
• issued with a minimum denomination per unit of €100,000;
• issued by an EU member state or by one of an EU member state’s regional or local authorities, by public international bodies of which one or more EU member states are members, by the European Central Bank or the central banks of EU member states;
• unconditionally and irrevocably guaranteed by an EU member state or by one of an EU member state’s regional or local authorities;
• issued by associations with legal status or non-profit-making bodies, recognised by an EU member state, for the purposes of obtaining the funding necessary to achieve their non-profit-making objectives; and
• issued in a continuous or repeated manner by a credit institution, where the total aggregated consideration in the European Union for the securities offered is less than €75 million per credit institution calculated over a period of 12 months, provided that those securities are not subordinated, convertible or exchangeable and do not give a right to subscribe for or acquire other types of securities, and are not linked to a derivative instrument.

Describe the public offering process for debt securities. How does the private offering process differ?

The key parties to a public offering of debt securities are:

• the issuer;
• the issuer’s auditors, and financial and legal advisers;
• the joint coordinators and bookrunners, and underwriters;
• the financial and legal advisers of the latter;
• the HCMC; and
• ATHEX.

A deal typically starts with the appointment of advisers, joint coordinators and bookrunners, and underwriters by the issuer and the transaction structuring by the issuer and its financial and legal advisers. Most deals include financial and legal due diligence by the issuer’s adviser or the joint coordinators and bookrunners’ adviser. Following the finalisation of the structure, the key parties start drafting the transaction documents (terms and conditions of the debt instrument, advisers’, joint coordinators and bookrunners’ and underwriters’ agreement, and the agency agreement) and the prospectus.

Following submission of the prospectus to the HCMC, a public offering process for debt securities has an average duration of six to eight weeks. Marketing activities may take place only following approval and publication of the prospectus and are subject to scrutiny by the HCMC. Typical marketing activities include an issuer’s roadshow or an investor information package, which comprises the investor presentation and approved prospectus.

The following table provides a typical timeline, including marketing activities and transaction documents, from the conclusion of the issuer’s preparations and the start of legal and financial due diligence (which usually takes four to 12 weeks).

A private offering of debt securities involves the following persons:

• the issuer;
• the issuer’s auditors, and financial and legal advisers;
• the underwriters;
• the financial and legal advisers of the underwriters; and
• ATHEX, if the issuer opts for the listing of the debt securities that have been offered by means of a private placement.

The private offering process is shorter than the public offering process (usually two to four weeks), given that it is not subject to the prospectus requirements or any scrutiny and approval of the offering document by the HCMC.

What are the usual closing documents that the underwriters or the initial purchasers require in public and private offerings of debt securities from the issuer or third parties?

The underwriters require the following in both public and private offerings:

• a legal opinion of the joint coordinators and bookrunners’, and underwriters’ counsel on the legality, validity, binding effect and enforceability of the transaction documents;
• a legal opinion of the issuer’s and guarantor’s counsel, if any, on its legal status and capacity to enter into the transaction documents;
• articles of association and relevant good standing court or corporate registry certificates for the issuer and guarantor;
• corporate authorisation of the issuer (and of the guarantor);
• a comfort letter by the issuer’s auditor; and
• a bring-down communication in the form of a letter or a call (if legal due diligence is conducted).

What are the typical fees for listing debt securities on the principal exchanges?

The following fees apply to any bond listing on the ATHEX Regulated Securities Market and any bond admission to the ATHEX Alternative Market:

• a fixed listing fee or admission fee of €3,000;
• a fee for the registration of bonds in the Dematerialised Securities System (DSS) of 0.025 per cent on the value of the issue (minimum €3,000 and maximum €10,000); and
• a €1,000 annual maintenance fee of bonds in the DSS.

Law stated date

Give the date on which the information above is accurate.

6 December 2021.