228 5 Equity and Shareholders’ Capital
On the other hand, the publication of an offering circular is not always optional.
There can also be a duty to make it public. This is because the Prospectus
Directive requires the publication of similar information even where it does not
require the publication of a prospectus: “... material information provided by an
issuer or an offeror and addressed to qualified investors or special categories of
investors, including information disclosed in the context of meetings relating to
offers of securities, shall be disclosed to all qualified investors or special
categories of investors to whom the offer is exclusively addressed ...”^464
In the Ahlstrom IPO, part of the offering consisted of an offering to institutional investors
and a private placement. An offering circular was prepared. Because of prospectus rules,
the offering circular could only be distributed to certain recipients and could not be made
public.
The Offering Circular contained restrictions the purpose of which was to: ensure
compliance with EU prospectus rules; benefit from exemptions under the Prospectus
Directive;^465 and make recipients of the Offering Circular responsible for checking that they
qualified as institutional investors and did not take any action that would trigger a duty to
publish a prospectus under the Prospectus Directive.^466
The recipients of the Offering Circular were prohibited from using the information for
any other purpose than to consider purchasing or subscribing for the Offer Shares. In the
light of the Directive on market abuse, a listed issuer would have had to agree on
confidentiality because of the obligation to disclose any inside information disclosed to a
third party who does not owe a confidentiality obligation.^467
In addition, it contained legal waivers made necessary by Member States’ national laws
and non-member states’ laws such as the US Securities Act.^468
Drafting of a prospectus. The Prospectus Directive provides that (a) Member
States shall not allow any offer of securities to be made to the public within their
(^464) Article 15(5) of Directive 2003/71/EC (Prospectus Directive).
(^465) Article 3 and 4 of Directive 2003/71/EC (Prospectus Directive). Article 2 sets out the
scope of the Directive.
(^466) Ahlstrom Corporation, Offering Circular (13 March 2006): “This Offering Circular has
been prepared on the basis that all offers of Offer Shares other than the offer contem-
plated in the Finnish Prospectus will be made pursuant to an exemption under the Pro-
spectus Directive ... Accordingly, any person making or intending to make any offer
within the EEA of Offer Shares which is the subject of the placement contemplated in
this Offering Circular should only do so in circumstances in which no obligation arises
for the Company or any of the Managers to produce a prospectus for such offer ... Each
person in a Member State of the EEA ... who receives any communication in respect of,
or who acquires any Offer Shares under, the offers contemplated in this Offering Circu-
lar will be deemed to have represented, warranted and agreed to and with each Manager
and the Company that: (a) it is a qualified investor ...”
(^467) Article 6(3) of Directive 2003/6/EC (Directive on market abuse).
(^468) The Offering Circular contained, for example, the following statement (in capital let-
ters): “The Offer Shares have not been and will not registered under the U.S. Securities
Act or any state securities laws, and may not be offered or sold within the United States
or to U.S. persons except to qualified institutional buyers in reliance on the exemption
from the registration requirements of the U.S. Securities Act provided by Rule 144A and
outside the United States in compliance with Regulation S ...”