Filing and documentary requirements

General filing 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.

An issuer who intends to make an offer of securities to the public in Ireland, or apply to have those securities listed on a regulated market (ie, on Euronext Dublin), must first prepare and publish a prospectus that is subject to prior approval by the Central Bank.

For the purposes of the Prospectus Directive, securities are ‘transferable securities’ as defined in MiFID II. Public offerings of certain types of debt securities (eg, government bonds) are exempt from this requirement.

The issuer must submit the prospectus and relevant fee to the Central Bank together with any required supporting documentation, as set out in the Prospectus Handbook.

If the issuer applies to have the securities listed on Euronext Dublin, it must appoint a listing agent and submit the prospectus, application for admission to trading and the relevant fee to Euronext Dublin together with any supporting documentation required under the Euronext Dublin Listing Rules.

Once the prospectus is approved by the Central Bank, an issuer that is an Irish company registered under the Companies Act must file a copy of the approved prospectus with the Companies Registration Office (CRO) within 14 days of publication.

Prospectus requirements

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

If securities are to be offered to the public, a prospectus must be produced, unless the offer is exempt, namely the offer is made:

  • to qualified investors;
  • to 150 or fewer persons (other than qualified investors);
  • for a total consideration of at least €100,000 per investor;
  • comprising securities with a minimum denomination of €100,000; or
  • for a total consideration in the EU of less than €100,000, as calculated over 12 months.

A ‘public offer’ is defined very broadly under the Irish Prospectus Regulation and means a communication to persons in any form and by any means, presenting sufficient information on the terms of the offer and the securities to be offered, so as to enable an investor to decide to purchase or subscribe for those securities or apply to purchase or subscribe for those securities.

A new prospectus regulation, Regulation (EU) 2017/1129 (the New Prospectus Regulation) on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market was published in the Official Journal on 30 June 2017. It will generally apply from 21 July 2019 and will be directly effective in member states. The European Commission’s original proposal to remove the wholesale exemption from the requirement to publish a prospectus was not agreed, meaning that for public offers of debt securities with a minimum denomination of €100,000 the exemption from the requirement to publish a prospectus will remain. The exemption for offers addressed solely to qualified investors, and for offers addressed to fewer than 150 natural or legal persons per member state, will also remain.

In all circumstances, if securities are admitted to trading on a regulated market (ie Euronext Dublin), a prospectus must be prepared and approved by the Central Bank.

The following table indicates when a prospectus is required.

Type of offer and securities

Is a prospectus required?

Exemption applies.Securities will not be listed on Euronext Dublin (EU/EEA regulated market).

No.

Exemption applies.Securities will be listed on Euronext Dublin (EU/EEA regulated market).

Yes.

Exemption applies.Securities will be listed on GEM (exchange regulated market operated by Euronext Dublin).

No. In this instance a listing document is prepared called a listing particulars, which is subject to the GEM Listing and Admission to Trading Rules for Debt Securities.

No exemption available.Securities will be listed on Euronext Dublin (EU/EEA regulated market) or GEM (exchange regulated market operated by Euronext Dublin).

Yes.

The prospectus must comply with all EU and Irish Prospectus legislation and include information necessary to enable investors to make an informed assessment of the financial status and potential of the issuer and rights attaching to the securities.

The Prospectus Handbook provides that the prospectus may be prepared in one of the following formats:

  • a single stand-alone document;
  • atripartite document (comprising a registration document, securities note and summary);
  • a base prospectus and subsequent final terms; or
  • a drawdown prospectus (a single stand-alone document which incorporates by reference all or part of a base prospectus).

The Prospectus Handbook also prescribes the content of a prospectus, which at a minimum must include a clear and detailed table of contents, a summary (if the minimum denomination of the securities is less than €100,000), risk factors and the information contained in the relevant annexes to the EU Prospectus Regulation. Under the New Prospectus Regulation, no summary will be required in respect of debt securities that will be traded on a regulated market (or a specific segment of a regulated market) to which only qualified investors have access or for a wholesale issue. The New Prospectus Regulation also sets out more prescriptive requirements on the length and content of the summary where one is required and also on the risk factors to be included in the prospectus.

The prospectus must also contain a responsibility statement. The issuer, offeror and person seeking admission to trading must take responsibility for the whole prospectus. Certain persons can take responsibility for specified parts. This, however, is in addition to the responsibility attaching to the issuer, offeror and person seeking admission to trading.

Disclosures required to be made in the prospectus are set out in the Prospectus Handbook and the relevant annexes to the EU Prospectus Regulation which contains helpful checklists of the minimum disclosure requirements for various types of securities.

The Central Bank may authorise the omission of certain information from a prospectus if, on receipt of an omission request from the issuer, it considers that:

  • disclosure would be contrary to the public interest;
  • disclosure would be seriously detrimental to the issuer, provided the omission would not be likely to mislead the public as to facts and circumstances essential for an informed assessment of the issuer and rights attached to the securities; or
  • the information is of minor importance only for a specific offer or admission to trading and would not influence the assessment of the financial position and prospects of the issuer, offeror or guarantor (if any).
Documentation

Describe the drafting process for the offering document.

The offering document for a public offer of debt securities is the prospectus. It is normally prepared by the issuer and its legal counsel although the underwriters and their counsel will review the drafts.

In determining whether to make certain disclosures, the issuer must bear in mind the requirement that the prospectus must include all information necessary to enable investors to make an informed assessment of the financial status and prospects of the issuer and any guarantor and of the rights attaching to the securities. The prospectus must include the minimum disclosure requirements contained in the relevant annexes to the EU Prospectus Regulation.

If the issuer or its advisers have doubts about the extent of the disclosures to be made, ESMA’s guidance and Q&A on prospectus law may help them make judgements about the extent of the information to be supplied in the prospectus. As a member of ESMA’s Board of Supervisors, the Central Bank will take this guidance into account in considering whether the issuer has complied with the EU Prospectus Regulation.

In the drafting process, the area of most debate is often the description of the risk factors. The underwriters or lead manager may often want to disclose risks more fully than the issuer. Similarly, in the description of the business or description of the issuer sections, the issuer may often want to paint a more positive picture than the underwriter or lead manager may agree with.

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 terms and conditions of the debt securities are usually governed by a trust deed made between the issuer and trustee (a financial institution appointed to represent the interests of debt securities holders). The EU Prospectus Regulation and ESMA’s Q&A guidance require an issuer to make documents referred to in the prospectus, including the trust deed, available for inspection and indicate in the prospectus where they may be inspected, by physical or electronic means.

The trust arrangement benefits the issuer and debt securities holders.

It provides flexibility for the issuer as the trustee may agree waivers and modifications without having to arrange meetings of debt securities holders to resolve and agree such waivers or modifications. In an enforcement action, the issuer would only have to defend one unified action from the trustee rather than multiple actions from individual securities holders. Also, an event of default normally only arises if the trustee forms the view that it materially prejudices the interests of the debt securities holders, and this again limits the issuer’s exposure to multiple claims from individual securities holders.

On the other side, debt securities holders also benefit, for example, from the trustee’s strong bargaining position as a representative of a large amount of debt. This can result in the inclusion of more protective covenants and more sophisticated monitoring of the issuer’s compliance with those covenants. A unified enforcement action generally results in a more favourable outcome for a debt securities holder compared to an individual action against the issuer.

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

The prospectus must be approved by the Central Bank before it is made available to the public. The issuer must make the prospectus available to the public as soon as practicable and in any case, at a reasonable time in advance of, and at the latest at the beginning of, the offer or the admission to trading of the securities involved.

The prospectus is made available to the public in one of the following ways:

(i)   by insertion in a newspaper widely circulated in Ireland;

(ii)  in printed form and free of charge at Euronext Dublin's offices, or at the issuer’s registered office and at the offices of the financial intermediaries placing or selling the securities, including paying agents;

(iii) in electronic form on the issuer’s website, or, if applicable, on the website of the financial intermediaries placing or selling the securities, including paying agents;

(iv)  in electronic form on Euronext Dublin's website; or

(v)   in electronic form on the Central Bank’s website.

If option (i) or (ii) is used, an electronic copy must also be made available in accordance with option (iii).

The Central Bank will publish all approved prospectuses on its website unless the issuer submits a non-publication request. Where such a request is submitted the issuer must confirm to the Central Bank that the prospectus will be published in another electronic format. The Central Bank will then publish a notice on its website with a link to the issuer’s website where the prospectus has been published.

If an application for admission to trade on the GEM is made, the listing particulars must be approved by Euronext Dublin and made available to the public in one of the following ways:

(i)   in a printed form to be made available, free of charge, to the public at Euronext Dublin's offices;

(ii)  at the registered office of the issuer and at the offices of the financial intermediaries placing or selling the securities, including paying agents;

(iii) in electronic form on the issuer’s website and, if applicable, on the website of the financial intermediaries placing or selling the securities, including paying agents; or

(iv)  in electronic form on Euronext Dublin's website.

Euronext Dublin will publish all approved listing particulars on its website unless the issuer submits a non-publication request. Where such a request is submitted the issuer must confirm to Euronext Dublin that the prospectus will be published in another electronic format. Euronext Dublin does not require a link and a notice is not published.

Authorisation

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?

If debt securities are offered to the public, the prospectus must be reviewed and approved by the Central Bank. If an application to admit the securities to trade on a regulated market (ie Euronext Dublin), is made, a dual submission to the Central Bank and Euronext Dublin is required.

The dual submission process involves the following steps:

  • the issuer (or its agent) submits the initial draft prospectus and supporting documentation to the Central Bank and Euronext Dublin;
  • comments will be provided in three business days. The Central Bank has reduced turnaround times assigned to the review for supplements. Comments on non-financial supplements received before 5pm are now returned within one business day (ie, by close of business the following business day). Financial-only supplements can proceed straight to approval without a review being required;
  • the issuer submits a revised draft prospectus with replies to comments to the Central Bank and Euronext Dublin;
  • further comments may be provided in two business days;
  • once the Central Bank and Euronext Dublin are satisfied that all the relevant provisions of Irish and EU prospectus law have been fully addressed and all comments have been resolved, the prospectus can be approved;
  • on the approval date, the issuer submits a final copy of the prospectus and supporting documentation to the Central Bank and Euronext Dublin;
  • the relevant fees should be paid in advance of approval;
  • once the Central Bank approves the prospectus it will notify the listing agent and Euronext Dublin; and
  • Euronext Dublin will then confirm its approval and the issuer’s listing and admission to trading. Approval and listing can occur on a same-day basis.

The time frame for approval depends on a number of factors including the level of completeness of the initial draft prospectus, the complexity of the securities, any issues arising in relation to compliance with the provisions of Irish and EU prospectus law and the time taken by the issuer to respond to comments issued on each draft of the prospectus and the extent to which comments are adequately addressed in subsequent drafts.

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

The Central Bank may refuse to approve a prospectus, and therefore a public offering of securities, if it does not comply with all the relevant provisions of Irish and EU prospectus law or if during the review and authorisation process all comments raised by the Central Bank have not been resolved to its satisfaction.

Euronext Dublin may refuse an application for admission to list if it considers that admission of the securities would be detrimental to the interests of investors or that the issuer has not complied with the relevant listing rules or, for securities already listed in another EEA state, if the issuer has failed to comply with the obligations to which it is subject by virtue of that listing.

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

See question 3 for the filing requirements applicable to a public offer of debt securities.

If an offer falls within one of the exemptions listed in question 4 and an application to list the securities on the GEM is made, listing particulars must be prepared in compliance with the GEM Listing and Admission to Trading Rules, approved by Euronext Dublin and made available to the public before the application is made. Such an issuer is also subject to the provisions of its constitutional documentation and, if it is an Irish company, the Companies Act.

The only exemption applies to an offering document for unlisted debt securities falling within one of the exemptions listed in question 4, which are not subject to any registration requirements and there are no requirements for the content of the offer document.

Offering process

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

The public and private offering processes typically involve similar steps as set out below. The key difference is the publication of a prospectus approved by the Central Bank before an offer of securities is made to the public.

RoadshowIn many cases, in particular for first-time or infrequent issuers, a roadshow is conducted. On the roadshow, representatives of the issuer and underwriters or managers will meet prospective investors to assess interest in the deal, likely pricing and size of the transaction.

DocumentationThe underwriter’s legal counsel is normally responsible for preparing the documentation for the issuance, other than the prospectus or offering circular, which is prepared by the issuer’s legal counsel. If applicable, time for the prospectus approval process described in question 8 will have to be followed and factored into the schedule.

Launch and syndicationOn the launch date, the issue will be announced to the market and, if the issue is syndicated, a lead manager will send the invitation telex, which shows the price and agreed fees, to the co-managers. Acceptance is not binding but there is a generally perceived moral obligation to purchase securities once acceptance has been sent.

ListingIf the securities are to be listed on Euronext Dublin, the process described in question 8 will have to be followed and factored into the schedule.

SigningOn the signing date, a subscription agreement is signed by the issuer and underwriter or managers and listing documentation is submitted to a listing agent and delivered to Euronext Dublin. Documentation to be delivered on closing will be in agreed form on this date.

ClosingThis is the final stage of the issue process and is when the securities are issued and the issuer receives the cash proceeds. On the closing date, conditions precedent to the issue, as set out in the subscription agreement, must be satisfied including the delivery of all remaining closing documents such as the issuer’s closing and corporate certificates, legal opinions, payment instructions and confirmations, the auditors’ comfort letter and letters from the relevant rating agencies, if required. If the securities are to be listed, Euronext Dublin will issue a formal notice of admission to trade and list on the relevant market.

Closing documents

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 key documents that underwriters or initial purchasers require in public and private offerings of debt securities from the issuer or third parties include the following:

  • offering circular summarising the issue;
  • subscription agreement containing conditions precedent to the issue, interest rate, fees payable to underwriters and representations and warranties from the issuer;
  • auditors’ arrangement and comfort letter confirming there has been no adverse financial change since the date of the issuer’s last audited accounts;
  • legal opinions from the issuer’s and underwriters’ legal counsel as to the issuer’s capacity and authority to issue the securities and the enforceability of the documents;
  • trust deed pursuant to which a financial institution agrees to act as trustee of and represent all of the debt securities holders with a duty to safeguard their interests and the issuer agrees to create the securities subject to certain terms and conditions;
  • agency agreement containing the terms upon which paying agents are appointed and setting out the payment mechanics;
  • closing and corporate certificate of the issuer containing all required approvals and authorisations;
  • payment instructions and confirmations; and
  • global bonds (permanent and temporary) signed by the issuer, authenticated by its agent and delivered to the common depository for safekeeping on behalf of the clearing system.

Underwriters or initial purchasers of a public offer of securities or an offer of securities that are admitted to trade on a regulated market (ie, Euronext Dublin), also require a copy of the approved prospectus, supplement, final terms and the notice of admission to trade, as appropriate.

Listing fees

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

Depending on the type of submission made (for example, a stand-alone prospectus or final terms under a programme), fees for listing on Euronext Dublin (the EU/EEA regulated market) may comprise a combination of all or some of the following:

  • Euronext Dublin document fee;
  • Central Bank document fee;
  • security listing and admission to trading fee;
  • Euronext Dublin annual fee applied at issuer level (this is €3,000, or alternatively a one-off fee of €13,000 can be paid prior to listing); and
  • formal notice fee.

Again, depending on the type of submission made, fees for listing on the GEM comprise a combination of all or some of the above fees other than the Central Bank document fee (a prospectus approved by the Central Bank is not required to list on the GEM unless the securities are offered to the public).