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Applicability and exemptions
When must a prospectus be filed? Are there any notable exemptions?
Publication of a prospectus is usually required if transferable securities are:
- offered to the public; or
- admitted to trading on a regulated market of the Vienna Stock Exchange (VSE).
As the third market is not an EU regulated market, no prospectus is required if there is no offer to the public. Instead, a short info-memo must be filed with the VSE; however, this will not be published.
No prospectus is required if:
- an offer is made to qualified investors only;
- an offer is made to fewer than 150 non-qualified investors per European Economic Area (EEA) member state;
- the minimum consideration paid by any investor is at least €100,000 or securities are denominated in amounts of at least €100,000; or
- the total consideration for transferable securities offered in the EEA member states is less than €2 million.
What must the prospectus contain?
As a disclosure and liability document, the prospectus must contain all necessary information to enable investors to make an informed assessment of an issuer’s assets and liabilities, financial position, profits and losses, and prospects, as well as of the rights attaching to the securities offered in accordance with the EU prospectus regulation and the Capital Markets Act. Disclosure also extends to:
- risk factors specific to the issuer and the securities offered;
- audited historical financial information; and
- interim financial information (if published).
If there has been a significant change in the issuer's position (eg, a significant acquisition), pro forma financial information must be included, showing how any significant transaction would have affected the issuer's assets, liabilities and revenues had it occurred at the beginning of the period covered by the most recent financial information. Information must be presented in a way that is comprehensible, easy to analyse and mindful of the particulars of the relevant issuer, its business and the type of securities offered.
Filing and approval procedure
What is the procedure for filing for and obtaining prospectus approval from the regulator? Can draft prospectuses be submitted to the regulator for preliminary comment?
Prospectus approval procedures with the Financial Market Authority (FMA) are entirely electronic. The FMA is prepared to review multiple versions of the draft prospectus. It will provide detailed comments and raise points for clarification both by email and by telephone until the prospectus is ready for approval. The timing should be pre-discussed with the FMA early on.
What types of prospectus liability can arise (eg, statutory, contractual, tort)? Which parties may be held liable?
Under the Capital Markets Act, the issuer and those associated with a public offering can be held liable if investors suffer losses as a result of relying on any misstatement or material omission in the prospectus.
In addition, general civil liability rules apply if, for example, no prospectus has been published because the issuer relied on an exemption from the prospectus requirement. These two alternatives are the most common basis for remedies sought in connection with securities transactions.
Under the Capital Markets Act, the issuer, experts (persons responsible for drafting specific portions of the prospectus), auditor, brokers, entities reviewing the prospectus (which will be banks or auditing firms, if any) and VSE (if it has reviewed the prospectus) can also be held liable for any violation of the act in connection with an offering. The liability standard varies. Whereas slight negligence on the side of the issuers and experts can trigger liability for them, brokers can be sued only in case of wrongful intent or gross negligence on their part. Auditors have a defence by proving that they had no knowledge that the financial statements audited by them would serve as a basis for a prospectus and of any misstatement in respect of a prospectus (which is unlikely).
Under general civil law liability rules, in principle any person involved in a securities transaction (eg, the issuer’s officers) may be exposed to damage claims, provided that they are responsible for causing damage to an investor through their wilful or negligent behaviour in connection with securities transactions.
Under the Capital Markets Act, investor damage claims become time-barred within 10 years from the expiry of the public offer. Under general civil law, claims become time-barred within three years from the date on which the investor learned of the damage and the party inflicting such damage.
If no prospectus has been published in a public offering, retail investors can rescind contracts relating to the securities issued.
What defences are available for liable parties?
Defences available for liable parties depend on the specific circumstances of the case and on the relevant party’s liability standard, but may include the following:
- The person responsible reasonably believed that the statement was true and not misleading and can demonstrate that in so doing there was no wilful or negligent behaviour on their behalf.
- Where the loss is caused by a statement purporting to be made by or on the authority of an expert, the statement was included in the prospectus with the expert’s consent and the person responsible believed that the expert was competent to make and authorise the statement.
- A supplement or correction was published in a manner calculated to bring it to the attention of potential investors before the securities were acquired.
- The person suffering the loss acquired the securities and knew that the statement was false or misleading, or had knowledge of the omitted matter.