Public issue of shares

We advised authorized payment institution in:

PUBLIC ISSUE OF SHARES

We advised our client, a national payment institution, on conducting a public offering of the company’s shares.

In general, issuers’ obligations related to public offerings are regulated by Regulation 2017/1129 (Prospectus Regulation). It provides for a number of exemptions, including:

1. excludes the application of this regulation to public offerings of securities with a total value in the Union of less than EUR 1,000,000, with the limitation calculated for a period of 12 months,
2. excludes the obligation to publish a prospectus to strictly defined types of public offerings of securities in the regulation, and, among others, to:
   1. an offering of securities directed exclusively to qualified investors;
   2. an offer of securities addressed to fewer than 150 natural or legal persons per member state, other than qualified investors;
   3. an offer of securities with a unit denomination of at least EUR 100,000;
   4. an offer of securities addressed to investors who purchase securities with an aggregate value of at least EUR 100,000 per investor for each separate offer.

Pursuant to the second sentence of Article 1 (3) of the Prospectus Regulation, Member States shall not extend the obligation to prepare a prospectus in accordance with this Regulation to public offerings of securities referred to in the first paragraph of this paragraph. The third sentence of Article 1(3) of the Prospectus Regulation provides that Member States may, however, impose other information obligations at the national level in these cases to the extent that such obligations do not constitute a disproportionate or unnecessary burden. Therefore, it is necessary in each case to verify whether additional obligations in connection with a public offering are not independently imposed by national regulations – in Poland, these are the provisions of the Public Offering Act (for example, they provide for entry in the register of shares kept by the FSA).

Regardless of the provisions of the Prospectus Regulation and the Public Offering Act, the proper conduct of a public offering of shares requires consideration of the relevant provisions of the CCC. The CCC provides that the acquisition of new shares may be carried out through:

1. private subscription,
2. closed subscription,
3. open subscription.

In any case, it is necessary to ensure that the documentation related to an increase in the share capital of a joint-stock company, meets the relevant requirements of the CCC. On its basis, the registry court will then consider the application for registration of the share capital increase.

Once the share capital increase is registered with the KRS, the newly issued shares of the non-public company should be registered in the shareholder register maintained by an entity authorized under the Financial Instruments Trading Act to maintain securities accounts (i.e., in particular, a brokerage house).

In the case of NIPs, one should also remember the obligation to notify the FSA of an intention to acquire a block of shares resulting in reaching or exceeding, respectively, 20%, 30% or 50% of the total number of votes in the constituent body or a share in the share capital of the NIP.

DLK’s advisory included:

• advising in the conduct of a public offering of shares in a manner consistent with applicable legal regulations
• development of documentation necessary to carry out the public offering and increase the company’s share capital
• representation of the company and filing of an application for registration of the company’s share capital increase by the registry court