5.9 Listing and the Information Management Regime 201Second, the obligation to publish a prospectus does not apply to the following
types of offer:^298 (a) offer of securities addressed solely to qualified investors;
and/or (b) an offer of securities addressed to fewer than 100 natural or legal
persons per Member State, other than qualified investors; and/or (c) an offer of
securities addressed to investors who acquire securities for a total consideration of
at least €50,000 per investor, for each separate offer; and/or (d) an offer of
securities whose denomination per unit amounts to at least €50,000; and/or (e) an
offer of securities with a total consideration of less than €100,000.
Third, there are also further exemptions from the obligation to publish a
prospectus.^299 For example, there are exemptions that apply to: (a) securities
offered in connection with a takeover by means of an exchange offer, provided
that a document is available containing information which is regarded by the
competent authority as being equivalent to that of the prospectus; and (b)
securities offered, allotted or to be allotted in connection with a merger, provided
that a document is available containing information which is regarded by the
competent authority as being equivalent to that of the prospectus.
Qualified investors. The qualified investor exemption is one of the key
exemptions under the Prospectus Directive because it facilitates a private-
placement regime. Qualified investors are segmented into different categories
which partly reflect the approach taken to segmenting retail and sophisticated
investors under the MiFID. In addition to regulated entities^300 and certain public-
sector entities,^301 it covers legal entities which are not SMEs^302 and, in rare cases,
certain SMEs and natural persons.^303
A legal entity is not regarded as an SME and is regarded as a qualified investor
when it does not meet two of the following three criteria according to its last
annual or consolidated accounts: an average number of employees during the
financial year of less than 250; a total balance sheet not exceeding €43 million;
and an annual net turnover not exceeding €50 million.
The qualified investor exemption does not apply to later resales by those
qualified investors to the retail sector.^304 The resale regime has been described as
“controversial”.^305
Non-prospectuses. Now, where an offer of securities is made, the issuer or
offeror does not always have a duty to publish a prospectus under the Prospectus
Directive. This does not mean that there is no duty of disclosure. Material
information that is disclosed selectively must be disclosed to all investors to whom
the offer is addressed (equality-of-access principle). Where a prospectus is
(^298) Article 3(2) of Directive 2003/71/EC (Prospectus Directive).
(^299) Article 4 of Directive 2003/71/EC (Prospectus Directive).
(^300) Article 2(1)(e)(i) of Directive 2003/71/EC (Prospectus Directive).
(^301) Article 2(1)(e)(ii) of Directive 2003/71/EC (Prospectus Directive).
(^302) Article 2(1)(e)(iii) of Directive 2003/71/EC (Prospectus Directive)
(^303) Article 2(1)(e)(iv-v) of Directive 2003/71/EC (Prospectus Directive).
(^304) Article 3(2) of Directive 2003/71/EC (Prospectus Directive).
(^305) Moloney N, EC Securities Law. OUP, Oxford (2008) p 142.