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Polish implementation of 2010 Amending Directive

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Mruk-Zawirski Pawel
Pawel Mruk-Zawirski

Senior Associate

Warsaw

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14 May 2013

Legislation implementing the Directive No 2010/73/EU amending the Prospectus Directive No 2003/71/EC (the Amending Directive) is expected to enter into force in Poland shortly.

The draft of the new law (the Law) aims to change the Act on Public Offerings, the Conditions Governing the Introduction of Financial Instruments to Organised Trading, and Public Companies dated 29 July 2005 (the Act) so that it conforms to the Amending Directive.

The Law substantially changes the regulatory framework of Polish securities law. The amendments introduced by the Law are threefold: (i) general changes; (ii) those that apply only to debt offerings; and (iii) changes that apply only to equity offerings.

As to the general changes, of particular note is the alteration in the definition of the public offering. As such, offers now addressed to fewer than 150 (instead of 100) persons will no longer qualify as a public offering. Additionally, according to the Law, the exemption from the obligation to publish a prospectus will now apply to public offerings solely for "professional investors", as defined in the Act on Trading in Financial Instruments dated 29 July 2005. This is a change from the definition in the previous version of the draft text.

Among changes which have an impact on equity offerings, of particular importance is extending the exemption from an obligation to publish a prospectus in case of employee offer of securities. According to the Law, the exemption will now apply to all issuers with a registered or head office in a Member State. Previously, it applied only to issuers with their securities listed on the regulated market (the regulated market could only be in the territory of a Member State). Furthermore, the exemption will also apply to companies whose securities have been admitted to trading: (i) on the regulated market or (ii) on the market of a third country for which the European Commission has adopted an equivalence decision.

With respect to debt offerings, the Law introduces, among other things, an exemption from the obligation to publish the prospectus for a public offering of non-equity securities issued in a continuous or repeated manner by credit institutions where the total consideration for the offer in the EU is less than EUR 75 million (calculated over a period of 12 months). This exemption will apply if: (i) securities are not subordinated, convertible or exchangeable; and (ii) they do not contain the right to subscribe to or acquire other types of securities and that they are not linked to a derivative instrument.

The Law was adopted by the Polish Parliament on 8 March 2013 and was signed by the Polish President on 27 March 2013. The Law will enter into force within 14 days from the publication date.