On 6 September 2017 the Dutch Ministry of Finance adopted an amendment to the Exemption regulation to the Act on Financial supervision (Vrijstellingsregeling Wft, the Exemption Regulation), which introduces several changes to the exemption from the obligation to have an approved prospectus generally available for small offerings (Section 53 of the Exemption Regulation). The amendment to the Exemption Regulation will enter into force on 1 October 2017 and is being introduced in preparation of the new Prospectus Regulation (EU) 2017/1129 (the Prospectus Regulation).
The current wording of Section 53, subsection 2 of the Exemption Regulation, exempts an offeror from the rules of chapter 5.1. of the Act on financial supervision (Wet op het financieel toezicht, AFS), in case of an offer of securities to the public in the Netherlands or admission to trading on a regulated market situated or operating in the Netherlands, to the extent that it concerns securities which form part of an offer of which the total consideration value does not exceed EUR 2.5 million, calculated over a period of 12 months (the Exemption). Offers of group companies are being aggregated. The Exemption implements article 1, paragraph 2, sub (h) of the European Prospectus Directive (2003/71/EC) (the Prospectus Directive), as amended. In short, the Exemption results in the offeror not being obliged to make an approved prospectus generally available in relation to the relevant offer of securities to the public or admission to trading.
The following amendments will enter into force on 1 October 2017:
- the Exemption will no longer extend to admissions to trading on a regulated market situated or operating in the Netherlands;
- the maximum consideration of the offer under the Exemption will be increased from EUR 2.5 million to EUR 5 million;
- a new requirement to provide a standardized information document to investors for offers under the Exemption is being introduced; and
- offerors that intend to benefit from the Exemption will have to notify the Dutch Authority on the Financial Markets (Stichting Autoriteit Financiële Markten, AFM) in advance.
Item 3. is further explained below.
Standardized information document required
The Netherlands has chosen to include an additional disclosure requirement in connection with the broadening of the scope of the Exemption by introducing a standardized information document to be made generally available. This standardized information document can be described as a very light version of a prospectus.1
The standardized information document (which can be downloaded from the website of the AFM via this link) must be completed and provided in Dutch to investors by offerors offering securities under the Exemption. This standardized information document includes the essential features of an offering and should be balanced and comprehensive. Items to be included in this document are: (i) the use of proceeds of the offering, (ii) the main risks relating to the offering and the offeror, (iii) the financial position of the offeror, and (iv) the costs of the offering. Please click here for an unofficial translation of the Dutch standardized information document.
Applicability of the new Exemption
- All offers of securities initiated on or after 1 October 2017 under the Exemption must be reported to the AFM prior to the offer and the standardized information document must be provided to investors and the AFM.
- Offers initiated before 1 October 2017 under the old Exemption and increased on or after 1 October 2017 in excess of EUR 2.5 million to benefit from the increased exemption limit, qualify as a new offer for which the new requirements must be met prior to such increase.
- For all other offers under the old Exemption launched before 1 October 2017, the new requirements will not apply.