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PR 5.1 Validity of prospectus

Validity of prospectus

PR 5.1.1 R

1A prospectus is valid for 12 months after its approval2 for an offer or an admission to trading, provided that the prospectus is updated by a supplementary prospectus (if required) under section 87G of the Act. [Note: article 9.1 PD]

2
PR 5.1.2 R

For an offering programme, the base prospectus is valid for a period of up to 12 months after it is filed. [Note: article 9.2 PD]

PR 5.1.3 R

For non-equity transferable securities referred to in PR 2.2.7 R (2), the prospectus is valid until no more of the transferable securities concerned are issued in a continuous or repeated manner. [Note: article 9.3 PD]

PR 5.1.4 R

A registration document is valid for a period of up to 12 months after it is filed and approved,2 provided that it has been updated in accordance with PR 2.2.5 R and PR 3.4.2 R2. [Note: article 9.4 PD]

PR 5.3 Certificate of approval

PR 5.3.1 UK

Sections 87H and 87I of the Act provide:

Prospectus approved in another EEA State

87H

(1)

A prospectus approved by the competent authority of an EEA State other than the United Kingdom is not an approved prospectus for the purposes of section 85 unless that authority has notified ESMA and provided the competent authority with -3

(a)

a certificate of approval;

(b)

a copy of the prospectus as approved; and

(c)

if requested by the [FCA], a translation of the summary of the prospectus.

(2)

A document is not a certificate of approval unless it states that the prospectus -

(a)

has been drawn up in accordance with the prospectus directive; and

(b)

has been approved, in accordance with that directive, by the competent authority providing the certificate.

(3)

A document is not a certificate of approval unless it states whether (and, if so, why) the competent authority providing it authorised, in accordance with the prospectus directive, the omission from the prospectus of information which would otherwise have been required to be included.

3(3A)

The competent authority must publish on its website a list of certificates of approval provided to it in accordance with this section.

3(3B)

The list referred to in subsection (3A) must -

(a)

be kept up-to-date;

(b)

retain items on it for a period of at least 12 months; and

(c)

include hyperlinks to any certificate of approval and prospectus published on the website of -

(i)

the competent authority of the EEA State which provided the certificate;

(ii)

the issuer; or

(iii)

the regulated market where admission to trading is sought.

(4)

"Prospectus" includes a supplementary prospectus.

Provision of information to host Member State

87I

(1)

The [FCA] must, if requested to do so, supply the competent authority of a specified EEA State with –

(a)

a certificate of approval;

(b)

a copy of the specified prospectus (as approved by the [FCA]); and

(c)

a translation of the summary of the specified prospectus (if the request states that one has been requested by the other competent authority).2

(1A)2

If the competent authority supplies a certificate of approval to the competent authority of the specified EEA State, it must also supply a copy of that certificate to -

(a)

the person who made the request under this section; and

(b)

ESMA.

(2)

Only the following may make a request under this section –

(a)

the issuer of the transferable securities to which the specified prospectus relates;

(b)

a person who wishes to offer the transferable securities to which the specified prospectus relates to the public in an EEA State other than (or as well as) the United Kingdom;

(c)

a person requesting the admission of the transferable securities to which the specified prospectus relates to a regulated market situated or operating in an EEA State other than (or as well as) the United Kingdom.

(3)

A certificate of approval must state that the prospectus –

(a)

has been drawn up in accordance with this Part and the prospectus directive; and

(b)

has been approved, in accordance with those provisions, by the [FCA].

(4)

A certificate of approval must state whether (and, if so, why) the [FCA] authorised, in accordance with section 87B, the omission from the prospectus of information which would otherwise have been required to be included.

(5)

The [FCA] must comply with a request under this section –

(a)

if the prospectus has been approved before the request is made, within 3 working days beginning with the date the request is received2; or

2

(b)

if the request is submitted with an application for the approval of the prospectus, on the first working day after the date on which it approves the prospectus.

(6)

“Prospectus” includes a supplementary prospectus.

(7)

“Specified” means specified in a request made for the purposes of this section.

Requests to the FCA to supply a certificate of approval

PR 5.3.2 R
  1. (1)

    This rule applies to a request by a person to the FCA to supply information referred to in section 87I of the Act to the competent authority of a relevant Host State.

  2. (2)

    The request must be in writing and must include:

    1. (a)

      the relevant prospectus as approved (if it has already been approved); and

    2. (b)

      a translation of the summary if required by the competent authority of a relevant host State.

      4[Note: See PR 3.1.-1EU for the additional requirements where a request is made prior to the approval of a prospectus]

PR 5.3.3 G

The FCA will inform the person who made the request as soon as practicable after it has supplied the information to the other competent authority.

Certificate received from another competent authority

PR 5.3.4 G

If the FCA receives information referred to in section 87H from another competent authority it will as soon as practicable give notice on the FCA website that it has received the information.1

1

PR 5.5 Persons responsible for a prospectus

Persons responsible for a prospectus

PR 5.5.1 R

The rules in this section specify in accordance with section 84(1)(d) of the Act and for the purposes of Part 6 of the Act, the persons responsible for a prospectus.

Note: In accordance with PR 1.1.9 a reference in this section to a prospectus includes a supplementary prospectus.

Rules only apply if UK is Home State

PR 5.5.2 R

The rules in this section only apply in respect of a prospectus if the United Kingdom is the Home State for the issuer in relation to the transferable securities to which the prospectus relates.

Equity shares

PR 5.5.3 R
  1. (1)

    This rule applies to a prospectus relating to:

    1. (a)

      equity shares;

    2. (b)

      warrants or options to subscribe for equity shares, that are issued by the issuer of the equity shares; and

    3. (c)

      other transferable securities that have similar characteristics to transferable securities referred to in paragraphs (a) or (b).

  2. (2)

    Each of the following persons are responsible for the prospectus:

    1. (a)

      the issuer of the transferable securities;

    2. (b)

      if the issuer is a body corporate:

      1. (i)

        each person who is a director of that body corporate when the prospectus is published;

        1
      2. (ii)

        each person who has authorised himself to be named, and is named, in the prospectus as a director or as having agreed to become a director of that body corporate either immediately or at a future time; and1

      3. (iii)

        each person who is a senior executive of any external management company of the issuer;1

    3. (c)

      each person who accepts, and is stated in the prospectus as accepting, responsibility for the prospectus;

    4. (d)

      in relation to an offer:

      1. (i)

        the offeror, if this is not the issuer; and

      2. (ii)

        if the offeror is a body corporate and is not the issuer, each person who is a director of the body corporate when the prospectus is published;

    5. (e)

      in relation to a request for the admission to trading of transferable securities:

      1. (i)

        the person requesting admission, if this is not the issuer; and

      2. (ii)

        if the person requesting admission is a body corporate and is not the issuer, each person who is a director of the body corporate when the prospectus is published; and

    6. (f)

      each person not falling within any of the previous paragraphs who has authorised the contents of the prospectus.

PR 5.5.3A R

1In PR 5.5.3R (2)(b)(iii), external management company means in relation to an issuer that is a company which is not a collective investment undertaking, a person who is appointed by the issuer (whether under a contract of service, a contract for services or any other commercial arrangement) to perform functions that would ordinarily be performed by officers of the issuer and to make recommendations in relation to strategic matters.

PR 5.5.3B G

1In considering whether the functions the person performs would ordinarily be performed by officers of the issuer, the FCA will consider, among other things:

  1. (1)

    the nature of the board of the issuer to which the person provides services, and whether the board has the capability to act itself on strategic matters in the absence of that person's services;

  2. (2)

    whether the appointment relates to a one-off transaction or is a longer term relationship; and

  3. (3)

    the proportion of the functions ordinarily performed by officers of the issuer that is covered by the arrangement.

All other securities

PR 5.5.4 R
  1. (1)

    This rule applies to a prospectus relating to transferable securities other than those to which PR 5.5.3 R applies.

  2. (2)

    Each of the following persons are responsible for the prospectus:

    1. (a)

      the issuer of the transferable securities;

    2. (b)

      each person who accepts, and is stated in the prospectus as accepting, responsibility for the prospectus;

    3. (c)

      in relation to an offer, the offeror of the transferable securities, if this is not the issuer;

    4. (d)

      in relation to a request for an admission to trading of transferable securities, the person requesting admission, if this is not the issuer;

    5. (e)

      if there is a guarantor for the issue, the guarantor in relation to information in the prospectus that relates to the guarantor and the guarantee; and

    6. (f)

      each person not falling within any of the previous paragraphs who has authorised the contents of the prospectus.

Issuer not responsible if it has not authorised offer or admission to trading

PR 5.5.5 R

A person is not responsible for a prospectus under PR 5.5.3R (2)(a) or (b) or PR 5.5.4 R (2)(a) if the issuer has not made or authorised the offer or the request for admission to trading in relation to which the prospectus was published.

Publication without director's consent

PR 5.5.6 R

A person is not responsible for a prospectus under PR 5.5.3 R (2)(b)(i) if it is published without his knowledge or consent and on becoming aware of its publication he, as soon as practicable, gives reasonable public notice that it was published without his knowledge or consent.

Offeror not responsible in certain circumstances

PR 5.5.7 R

A person is not responsible for a prospectus under PR 5.5.3 R (2)(d) or PR 5.5.4 R (2)(c) if:

  1. (1)

    the issuer is responsible for the prospectus in accordance with the rules in this section;

  2. (2)

    the prospectus was drawn up primarily by the issuer, or by one or more persons acting on behalf of the issuer; and

  3. (3)

    the offeror is making the offer in association with the issuer.

Person may accept responsibility for, or authorise, part of contents

PR 5.5.8 R

A person who accepts responsibility for a prospectus under PR 5.5.3 R (2)(c) or PR 5.5.4 R (2)(b) or authorises the contents of a prospectus under PR 5.5.3 R (2)(f) or PR 5.5.4 R (2)(f), may state that they do so only in relation to specified parts of the prospectus, or only in specified respects, and in that case the person is responsible under those paragraphs:

  1. (1)

    only to the extent specified; and

  2. (2)

    only if the material in question is included in (or substantially in) the form and context to which the person has agreed.

Advice in a professional capacity

PR 5.5.9 R

Nothing in the rules in this section is to be construed as making a person responsible for any prospectus by reason only of the person giving advice about its contents in a professional capacity.

PR 5.6 Miscellaneous

Information to be disclosed to all investors to whom offer addressed

PR 5.6.1 R

Where, in relation to an offer in the United Kingdom, no prospectus is required under the Act, the issuer and offeror must ensure that material information they provide to qualified investors or special categories of investors, including information disclosed in the context of meetings relating to offers, is disclosed to all qualified investors or special categories of investors to whom the offer is exclusively addressed. [Note: article 15.5 PD]

PR 5.6.2 G

Where a prospectus is required to be made available to the public under the Act, information referred to in PR 5.6.1 R should be included in the prospectus or in a supplementary prospectus.

Exercise of powers under section 87K or 87L of the Act

PR 5.6.3 G

Under sections 87K and 87L of the Act, the FCA has various powers including powers to prohibit or suspend an offer and to prohibit or suspend an advertisement. The FCA will use these powers if it is necessary to protect investors or the smooth operation of the market is, or may be, jeopardised.

Calculation of amounts not denominated in euros

PR 5.6.4 R

For the purposes of these rules, an amount (in relation to an amount denominated in euros) is an “equivalent amount” if it is an amount of equal value denominated wholly or partly in another currency or unit of account, calculated at:

  1. (1)

    in relation to a prospectus drawn up as a single document, the date on which the prospectus is approved;

  2. (2)

    in relation to a prospectus consisting of a registration document together with a securities note and a summary, the date on which the registration document is approved;

  3. (3)

    in relation to a prospectus consisting of a base prospectus and final terms of the offer, the date on which the final terms are filed.

1Property valuation reports1

PR 5.6.5 G

1To comply with paragraph 130 of the ESMA Prospectus Recommendations,3 the FCA would expect a valuation report for a property company to be in accordance with either:

1 2 3
  1. (1)

    the Appraisal and Valuation Standards (5th edition) issued by the Royal Institution of Chartered Surveyors; or

  2. (2)

    the International Valuation Standards (7th edition) issued by the International Valuation Standards Committee.

PR 5.6.6 G

1To comply with paragraph 2.7 of Annex XV of the PD Regulation, the FCA would also expect a valuation report for a property collective investment undertaking to comply with a relevant standard set out in PR 5.6.5 G.