Securities information sheet; authorisation to issue statutory instruments

(1) An offeror relying on the exemption under Article 3(2) of Regulation (EU) 2017/1129 may not offer the securities to the public domestically unless it has first prepared, deposited with the Bundesanstalt, and published a securities information sheet in accordance with paragraphs 3 to 5 and 6, second sentence, as well as paragraph 7, fourth sentence. The obligation under the first sentence does not apply 1. to a domestic public offer of securities with a total consideration within the European Economic Area of less than EUR 100,000, calculated over a period of twelve months, applying Article 3(2c) of Regulation (EU) 2017/1129 accordingly, 2. to issuers whose shares are already admitted to trading on a regulated market, 3. to credit institutions, or 4. where a key information document must be published for the securities under Regulation (EU) No 1286/2014.
(2) The securities information sheet may be published only once the Bundesanstalt has permitted its publication. Permission must be granted where 1. the securities information sheet contains, in full, all the particulars, notices and annexes required under the following paragraphs, including in conjunction with the statutory instrument to be issued under paragraph 9, and those particulars, notices and annexes appear in the prescribed order, and 2. the date as at which the issuer's most recent annual financial statements were adopted, and, in the case of a guarantor, additionally the date as at which the guarantor's most recent annual financial statements were adopted, is not more than 18 months before the time permission is granted. The Bundesanstalt must notify the offeror, within ten working days of receipt of the securities information sheet, whether it permits publication. Where the Bundesanstalt takes the view that the securities information sheet submitted to it for permission is incomplete, or that the required particulars, notices and annexes do not appear in the prescribed order, the period under the third sentence begins to run only from the time the required particulars, notices and annexes are received in full and in the prescribed order. The Bundesanstalt should inform the offeror, within five working days of receipt of the securities information sheet, where it considers further information necessary under the fourth sentence. This also applies where it concludes that the required particulars, notices and annexes have not been provided in the prescribed order.
(3) The securities information sheet may not exceed three DIN A4 pages. It must, in the following order, contain at least the essential information on the securities, the offeror, the issuer and any guarantor, presented clearly and in an easily comprehensible manner, so that the public can assess and compare as well as possible with the characteristics of other securities: 1. the type, precise designation and international securities identification number (ISIN) of the security, 2. how the security works, including the rights attaching to it, 3. particulars of the identity of the offeror, of the issuer including its business activity, and of any guarantor, 4. the risks attaching to the security, the issuer and any guarantor, 5. the issuer's and any guarantor's gearing ratio, calculated on the basis of the most recently prepared annual financial statements, 6. the prospects for repayment of capital and returns under various market conditions, 7. the costs and commissions attaching to the security, 8. the terms of the offer, including the issue volume, and 9. the intended use of the anticipated net issue proceeds.
(3a) For the issue of an electronic security within the meaning of the Electronic Securities Act, or of a digital, non-certificated security that is not an electronic security within the meaning of the Electronic Securities Act, paragraph 3 applies with the proviso that 1. by way of derogation from paragraph 3, first sentence, the securities information sheet may extend to up to four DIN A4 pages, 2. the particulars under paragraph 3, second sentence, no. 2 must also cover the technical design of the security, the technologies underlying it, and its transferability and tradability on the financial markets, 3. the particulars under paragraph 3, second sentence, no. 3 must, where the security is an electronic security within the meaning of the Electronic Securities Act, be supplemented by the identity of the register-keeping entity within the meaning of the Electronic Securities Act and by particulars of where and how the investor may inspect the register.
(4) The securities information sheet must, on its first page, immediately below the first heading, carry the warning notice, set off by its typography, "Acquiring this security involves significant risks and may lead to the total loss of the assets invested."
(5) Following the particulars under paragraph 3 of this provision, the securities information sheet must further contain, in the following order: 1. a notice that the accuracy of the content of the securities information sheet is not subject to review by the Bundesanstalt, 2. a notice that no securities prospectus approved by the Bundesanstalt has been deposited for the security and that the investor obtains further information directly from the offeror or issuer of the security, 3. a reference to the issuer's most recent annual financial statements and, in the case of a guarantor, additionally to the guarantor's most recent annual financial statements, and to where and how these annual financial statements may be obtained, 4. a notice that claims on the basis of a statement contained in the securities information sheet can arise only where the statement is misleading or inaccurate, or the warning notice under paragraph 4 is missing, and where the acquisition transaction was concluded after publication of the securities information sheet and during the term of the public offer, but at the latest within six months of the first public offer of the securities domestically.
(6) During the term of the public offer, the issuer's most recent annual financial statements must be made available to investors, on request, free of charge, in text form. Where the issuer is not obligated under the provisions of commercial law to disclose annual financial statements, the annual financial statements must be attached to the securities information sheet as an annex and must be deposited and published together with it in accordance with paragraph 1, first sentence. In the case of a guarantor, the first and second sentences apply accordingly.
(7) The investor must be able to understand the information listed in paragraph 3 of this provision without having to consult additional documents. The particulars in the securities information sheet must be kept concise and drafted in generally comprehensible language. They must be fair and unambiguous and must not be misleading. The securities information sheet may relate only to one specific security in each case and may not contain promotional or other information not serving the purpose named in paragraph 3.
(8) Where, after permission has been granted and before the definitive close of the public offer, an important new circumstance arises, or a material inaccuracy is found, in relation to the particulars contained in the securities information sheet that could affect the assessment of the security, the particulars contained in the securities information sheet must be updated without delay during the term of the public offer, and the updated version of the securities information sheet must be transmitted to the Bundesanstalt without delay for the purpose of deposit. The date of the most recent update, and the number of updates made since the securities information sheet was first prepared, must be stated in the securities information sheet. The updated securities information sheet must be published without delay in accordance with Article 21(2) and (3), first subparagraph of Regulation (EU) 2017/1129. Section 5(1) and (3), second sentence applies accordingly.
(9) The Federal Ministry of Finance may, by statutory instrument not requiring the consent of the Bundesrat, issue, in agreement with the Federal Ministry of Justice and Consumer Protection, more detailed provisions on the content and structure of securities information sheets. The Federal Ministry of Finance may transfer this authorisation, by statutory instrument, to the Bundesanstalt.