5.11 Shares as a Means of Payment 263Prospectus before offering securities to the public. GET SA had now complied
with its obligations to publish a prospectus relating to the admission to trading of
GET SA’s ordinary shares.
The Prospectus Directive requires the publication of a prospectus also before
securities are offered to the public.^644 The detailed contents of the prospectus are
based on Regulation 809/2004.
Simplifying the prospectus requirements. The Prospectus Directive nevertheless
contains exemptions.^645 The prospectus requirement does not apply provided that
certain conditions are met.
In order to meet the conditions, it was already stated in GET SA’s securities
note (see above) that the securities were not offered to the public according to the
Prospectus Directive:
“None of the GET SA Ordinary Shares ... have been or will be offered or sold to the public
in any member state of the European Economic Area ... which has implemented [the Pro-
spectus Directive], other than by application of the following exemptions provided for by
the Prospectus Directive where the relevant exemption has been implemented by the rele-
vant EEA Member State: - to legal persons approved or regulated as operators on financial
markets as well as to non-approved or regulated entities involved only in the placement of
shares;^646 - to legal persons who meet two of the following three conditions: having (a) an
average number of employees for the last financial period of greater than 250, (b) total
profits of more than 43 million euros or (c) a net annual turnover of more than 50 million
euros;^647 - to fewer than 100 natural or legal persons, other than qualified investors as de-
fined in the Prospectus Directive;^648 - in any other circumstance falling within article 3.2 of
the Prospectus Directive ...”
Furthermore, one of the exemptions under the Prospectus Directive applies to ex-
change offers in connection with a takeover. The obligation to publish a prospec-
tus does not apply to offers of securities to the public of “securities offered in con-
nection 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, taking into account the requirements
of Community legislation”.^649
Instead of a prospectus, GET SA could therefore publish an offer document.
This enabled GET SA to avoid the application of some of the strict Community-
wide rules.
It can be noted that the Prospectus Directive requires the disclosure of informa-
tion even when it does not require the publication of a prospectus. Disclosure can
be mandatory according to takeover or merger rules or the following provision
giving effect to the principle of equivalent treatment: “material information
(^644) Article 1(1) of Directive 2003/71/EC (Prospectus Directive).
(^645) Articles 3 and 4 of Directive 2003/71/EC (Prospectus Directive). Article 2 sets out the
scope of the Directive.
(^646) Articles 3(2)(a) and 2(1)(e)(i) of Directive 2003/71/EC (Prospectus Directive).
(^647) Articles 3(2)(a), 2(1)(e)(v) and 2(1)(f) of Directive 2003/71/EC (Prospectus Directive).
(^648) Articles 3(2)(b) of Directive 2003/71/EC (Prospectus Directive).
(^649) Article 4(1)(b) of Directive 2004/25/EC (Directive on takeover bids).