230 5 Equity and Shareholders’ Capital
prospectus has been or will be published and indicate where investors are or will
be able to obtain it.^476
For example, it was stated in the Offering Circular distributed by Ahlstrom that the
Offering Circular was “an advertisement for the purposes of the Prospectus Directive” and
that a “prospectus prepared pursuant to applicable legislation governing the public offering
of securities in Finland” had been published in Finland.
Waivers. The prospectus, advertisements and other information concerning the
offer will contain several legal waivers.
As regards the largely unregulated advertisements and offering circulars, banks
and issuers have more discretion to draft waivers.
If the prospectus falls within the scope of the Prospectus Directive, its legal
meaning, its contents, the responsibility for its contents, and the liability for its
breach are governed by detailed rules, which means that the parties have less
discretion to draft waivers.
In practice, however, the study of unregulated offering circulars and regulated
prospectuses reveals that, apart from some exceptions, banks and issuers tend to
use similar waivers in both cases.
Waivers in the offering circular. Waivers serve many purposes. In the Ahlstrom
IPO, the main purposes of waivers in the Offering Circular were to: keep, to the
extent possible, the Offering Circular outside the scope of the provisions of
Finnish, European and US securities markets laws; adapt the Offering Circular to
those (mandatory) provisions of securities markets laws that applied anyway;
ensure that the Offering Circular did not create any offer to sell where it would
have been unlawful; transfer the responsibility to ensure compliance with
mandatory laws to prospective purchasers of shares; exclude the legal relevance of
any other information; dilute the legal relevance of information contained in the
Offering Circular; transfer the responsibility for the usefulness of information
contained in the Offering Circular to potential purchasers of shares; exclude the
liability of the manager banks that drafted it; and limit the liability of the issuer
and its representatives.
The Offering Circular was kept outside the scope of certain provisions of Finnish, European
and US securities markets laws by making it a condition that the issuer benefited from
exemptions under the potentially applicable securities markets laws (the Prospectus
Directive, national laws implementing the provisions of the Prospectus Directive, and the
US Securities Markets Act).
In any case, it was necessary to adapt the Offering Circular to potentially applicable
provisions of securities markets laws by adapting its scope to those exemptions and by
(^476) Article 15(2) of Directive 2003/71/EC (Prospectus Directive).