3/2006: Inspection, approval and publication of prospectuses

1 Introduction

The new prospectus rules contained in Chapter 5 of the Securities Trading Act and related regulations came into force on 1 January 2006. The new rules represent the implementation in Norwegian law of the EU prospectus directive (Directive 2003/71/EF) (the “Prospectus Directive”). In accordance with the transitional arrangements, prospectuses could only be produced and inspected in accordance with the former rules until 1 March 2006. The new prospectus rules are described in Oslo Børs Circular 9/2005 and its Appendix.

Based on its experience from inspecting prospectuses following the implementation of the new rules, Oslo Børs wishes to clarify and provide further detail on the procedures for inspecting, approving and publishing prospectuses. It should be noted that this Circular introduces changes to existing practice in a number of respects.

This Circular applies to EEA prospectuses that require the approval of Oslo Børs pursuant to Section 5-7 of the Securities Trading Act (the “STA”). It also applies to prospectuses used in Norway on a cross-border basis pursuant to Section 5-9, first paragraph, of the STA where this is specifically stated.

This Circular therefore applies to any offer of securities that requires an EEA prospectus pursuant to Section 5-2 of the STA, cf. Section 5-7 of the STA, regardless of whether or not the securities in question are listed on a regulated market. However, the duty to produce a prospectus for admission to listing pursuant to Section 5-3 of the STA only applies to securities that are to be listed on Oslo Børs or some other regulated market, and therefore does not apply for admission to listing on, for example, the Alternative Bond Market (ABM).

This Circular does not apply to bonds having a maturity of less than 12 months (certificate), bonds issued by municipalities or county authorities or other securities that are exempted from the duty to produce a prospectus pursuant to Section 5-6 of the STA.

Section 5 of this Circular addresses supplementary prospectuses, registration prospectuses etc. For the sake of good order, it should be noted that the Circular does not apply to offer documents that only require approval pursuant to the provisions of Chapter 4 of the STA.

This Circular replaces Section 3.6, second to fifth paragraphs, of Circular 9/2005, Section 9.4 of the Appendix to Circular 9/2005 and the letter from Oslo Børs to members dated 28 October 2005.

The next edition of the Stock Exchange Rules will be amended to correspond with the provisions of this Circular.

2 Inspection

2.1 Basis for carrying out inspections

Section 5-8, third paragraph, of the STA states:

“ Inspection of a prospectus in respect of securities of the same class as securities already listed on a regulated market shall be completed no later than five business days after the complete prospectus is received by the prospectus authority. This shall also apply to the inspection of a prospectus in respect of securities for which a prospectus has already been produced in accordance with the rules on offers. In other cases, inspection shall be completed no later than 10 business days after the complete prospectus is received by the prospectus authority.”

This clause applies to inspection of prospectuses in their final form. When such prospectuses are received for inspection, Oslo Børs will reply within the stipulated deadline to either confirm that the prospectus is approved or that further information is required. In the latter case, the timetable for approval will run from the time at which such supplementary information is received. Prospectuses must be accompanied by a cross reference list as specified in section 2.2 below.

As an alternative, Oslo Børs offers a less formal inspection procedure in accordance with established practice. This procedure involves providing feedback on a prospectus received in draft form within the time limits described in section 2.3 below. Oslo Børs wishes to clarify the following points in respect of this procedure and the quality of the draft document submitted for inspection:

(i) Oslo Børs offers the alternative of inspecting the prospectus in this informal manner as a service for the issuer/offeror and its advisers.

(ii) Oslo Børs will not commence inspection until it receives a well-prepared prospectus, together with the relevant cross reference lists to the extent these are required in accordance with section 2.2 below.

(iii) Once a draft prospectus has been sent to Oslo Børs for inspection, there should in principle be no material changes to its content or structure, nor should any new information be added. If, however, certain sections of the draft submitted are incomplete, this must be stated in the cross reference list.

(iv) In the event that Oslo Børs, following a review of the prospectus and cross reference list, decides that the prospectus is incomplete and/or not sufficiently well prepared, it will consider returning the prospectus without specific comments on its contents. This will also apply if Oslo Børs comes to the same conclusion having started its inspection of a prospectus.

(v) Subsequent versions of the prospectus must show all changes made as marked changes, and the points raised by Oslo Børs must be answered in writing.

(vi) If a subsequent version of a prospectus includes changes that are material relative to the first draft submitted, Oslo Børs is entitled to decide that the timetable set out in section 2.3 below will be reset to start from the time it receives such a subsequent version.

(vii) The fee for prospectus inspection in accordance with the current tariff is incurred when a draft prospectus is submitted to Oslo Børs for inspection, and the fee will therefore be invoiced even if the process of inspection is not completed.

Prospectuses that relate to shares, primary capital certificates or other securities where the contents of the registration document are stipulated by Annex I or X of the Commission Regulation (EF) 809/2004 (the “Commission Regulation”) must be sent to the issuer’s contact person at Oslo Børs or to prospekter@oslobors.no. Prospectuses that relate to bonds and other securities must be sent to obligasjoner@oslobors.no .

2.2 Cross reference lists

If the contents of a prospectus do not follow the same order as laid down in the relevant Annex to the Commission Regulation, the prospectus must be accompanied by a cross reference list that details where the various required items of content can be found in the prospectus. Sample cross reference lists for typical cases can be found on the Oslo Børs web site. The requirement to include a cross reference list applies regardless of whether the prospectus is in respect of shares, bonds or other types of securities, and it applies to the registration document, the securities note and the summary note. Oslo Børs asks that particular attention be paid to providing details in the cross reference list of any items of content that are missing from the prospectus submitted.

The sample cross reference lists are currently only available in English, but will also be made available in Norwegian as soon as the official translation of the Commission Regulation is available.

2.3 Timetable for inspection

Where a prospectus is inspected in accordance with the informal procedure described in section 2.1 above, it should be assumed that for a prospectus that relates to securities that are listed on the stock exchange or another regulated market or for which application has been made for admission to such listing, a period of five working days will be required between Oslo Børs first receiving the draft prospectus and providing its initial response to the company’s advisers.

An offer of securities for purchase or subscription that are not listed and not subject to an application for listing would not normally be subject to such a tight timetable as a listed offer. Moreover, experience has shown that inspection of prospectuses for securities that are not listed or due to be listed normally requires more work. It should therefore be assumed that for a prospectus that relates to securities that are not listed and not subject to an application for listing, a period of ten working days will be required before Oslo Børs provides its initial response to the company’s advisers. In special circumstances, if it is important for the offer to proceed that the prospectus is approved in a shorter time, Oslo Børs can be asked to carry out its inspection in accordance with the timetable applied for listed securities. Any such request must be made in good time before the prospectus is submitted for inspection.

Oslo Børs endeavours to operate in accordance with these timetables, but must stress that the need to carry out the inspection properly takes precedence over the expectations of the offeror/issuer and its advisers for a prompt response. Oslo Børs may need more time in particular cases, particularly where the draft prospectus received is not sufficiently well prepared. Where more time is required, the advisers involved will be informed of this within the normal timetable.

It should be noted that a first response should not be expected within five/ten working days at the time of the Easter and Christmas holiday seasons.

Oslo Børs no longer provides a general indication of how long it will take to inspect and approve a prospectus. This process depends on the quality of the draft prospectus submitted, the extent to which inspection identifies the need for clarification of uncertain points of interpretation and how quickly and adequately the offeror/issuer responds to comments made by Oslo Børs.

In order to make the inspection more efficient in cases where the issuer has produced an approved prospectus in the recent past, Oslo Børs recommends that the new prospectus submitted should show the changes made from the earlier prospectus. Marking the changes in this way will normally allow a quicker response, but Oslo Børs cannot in general commit itself to provide a first response in fewer days than the timetable set out above.

Oslo Børs wishes to draw the attention of offerors/issuers to the opportunity to reuse an approved prospectus/registration document within a 12-month period. This requires the registration document to be produced separately in accordance with Article 25(2) of the Commission Regulation, or – if the prospectus has been produced as a single document in accordance with Article 25(1) of the Commission Regulation – the registration document information must be separated from the securities note information. It can normally be assumed that inspecting the securities document, the summary note and the updated information in such cases will require less time than a normal prospectus inspection. Oslo Børs will endeavour to provide a first response earlier than the normal timetable for prospectus inspection where it has capacity available to achieve this.

The tariff of fees for inspecting and approving prospectuses is decided by Oslo Børs annually pursuant to Section 5-11 of the STA.

3 Approval

Oslo Børs is required to formally approve prospectuses, cf. Section 5-8, first paragraph, of the STA. It is no longer necessary to send a printed version of the prospectus to Oslo Børs. Oslo Børs will therefore grant approval upon receipt of the final prospectus in pdf format. The signed responsibility statement must be submitted together with the final prospectus.

In the case of prospectuses for offers and admission to listing in respect of shares and primary capital certificates, the final approved prospectus in pdf format must be sent to Oslo Børs no later than 16.30 on the day before the start of the offer period or the first day of listing unless some other arrangement has been agreed with the responsible officer at Oslo Børs. However, in the case of the admission of a share class to listing for the first time, the approved prospectus must in all cases be sent to Oslo Børs no later than 14.00 on the day before the first day of listing.

In the case of prospectuses for offers and admission to listing in respect of bonds and other types of securities, the approved prospectus must be sent to Oslo Børs no later than 14.00 on the day before the start of the offer period or the first day of listing.

The approved prospectus must be sent to the responsible officer at Oslo Børs before the appropriate deadline as mentioned above, with a copy to ma@oslobors.no . If the prospectus is subsequently produced in printed form, the offeror/issuer is invited to send three copies to Oslo Børs for its archives.

In the case of prospectuses used in Norway on a cross-border basis, a complete announcement pursuant to Section 5-9 first paragraph of the STA must be received by Oslo Børs within the same deadlines.

For the sake of good order, it should be noted that the above requirements are in addition to the requirements set out in the Stock Exchange Rules for the documentation required in connection with a new issue of securities.

4 Publication

4.1 Deadline

Section 5-19 first paragraph of the STA stipulates the following deadline for the publication of a prospectus:

“The prospectus shall be made public no later than the time at which the offer period starts or the admission to listing takes place. In the event of an offer to subscribe for shares in a class of shares that is to be admitted to listing for the first time, the prospectus shall be made public no later than six business days before the expiry of the offer period.”

It is accordingly sufficient that the prospectus is published in accordance with section 4.2 below prior to the time at which the offer period starts or the securities are admitted to listing. However, if the offer period for shares listed for the first time is shorter than six business days, the prospectus must be published no later than six business days before the expiry of the offer period.

4.2 Method of publication

Section 5-19 second paragraph of the STA defines the various ways in which a prospectus may be published:

“ The prospectus can be made public by:

1. 1. publication in at least one national newspaper,
2. making it available to the public free of charge at the offeror’s registered office, or at the registered office of the marketplace, and at the offices of the investment firm involved in placing the offer,
3. making it available on the website of the offeror or the marketplace, and on the website of any investment firm involved in placing the offer, or
4. making it available on the website of the competent prospectus authority.”

It must be assumed that publication in at least one national newspaper (No. 1) will not be appropriate for anything other than short supplementary prospectuses. In practice, it is reasonable to assume that the most usual method for publication will be to make the prospectus available on the websites of the offeror/issuer and of the manager for the issue (No. 3), or alternatively on the Oslo Børs website (No. 4).

Electronic publication of prospectuses must meet the requirements set out in Article 29(1) of the Commission Regulation in respect of simplicity of access, distribution in a format that prevents changes being made and allowing the prospectus to be downloaded for printing. An electronic prospectus may only include links to information incorporated in the prospectus by reference.

If the offeror/issuer wishes to publish a prospectus on the Oslo Børs website, cf. Section 5-19, second paragraph, No. 4, of the STA, it must give notice of this to Oslo Børs no later than the time at which it submits the first draft of the prospectus for inspection. The offeror/issuer or its advisers must also contact Oslo no later than this time to agree on the use of any “blockers”.

If the offeror/issuer wishes to publish a prospectus via Oslo Børs purely as a supplement to some other sufficient method of publication, this can be done by publishing a stock exchange announcement containing a link to the prospectus. Oslo Børs intends to make arrangements for the distribution of such links through the company message system during the course of the current year.

There is no specific requirement for a prospectus to be distributed in a physical format, but it should be noted that a paper format version of the prospectus must be available free of charge, cf. Section 5-19, fourth paragraph, of the STA.

4.3 Announcing the publication of a prospectus

The Prospectus Directive requires that the national authorities must ensure that no public offer of securities is made and no securities are admitted to listing without the publication of a prospectus that meets the requirements of the Directive. In order to ensure compliance with this requirement, the offeror/issuer or its advisers must, no later than the day before the start of the offer period or the first day of listing, send a notice to both the officer at Oslo Børs handling the inspection of the prospectus and to ma@oslobors.no that provides the following information:

• The method chosen for publication of the prospectus, citing the relevant category from Section 5-19, second paragraph, of the STA;
• Where the prospectus is, or will be, made available;
• Confirmation that the prospectus has already been published or will be published before the deadline stipulated in section 4.1 above;
• Confirmation that the prospectus has already been announced or will be announced in a national newspaper or via the Oslo Børs company message system in accordance with section 4.4 below.

This notice must be sent before the deadline that applies to the submission of the approved prospectus in its final form, cf. section 3 above.

The deadline for submitting the notice required pursuant to this section will not be delayed by any agreement reached by the offeror/issuer with the officer of Oslo Børs handling the case for the approval of a prospectus in respect of shares or primary capital certificates to take place later than 16.30 on the day before the start of the offer period or the first day of listing.

However, in the case of a prospectus for the admission to listing on Oslo Børs of shares in a class of shares that is already listed, the issuer or its advisers may agree with Oslo Børs that admission to listing shall take place on the same day as the prospectus is approved, the notice required pursuant to this section is delivered and the prospectuses published. Such a procedure will be conditional on the documentation requirements set out in Section 2.3 of the Stock Exchange Rules - Continuing Obligations being satisfied prior to the start of listing.

Where a prospectus is approved pursuant to Section 5-7 of the STA in respect of securities that are listed on Oslo Børs or are the subject of an application for admission to listing, Oslo Børs will, in response to the notice received from the offeror/issuer, issue a stock exchange announcement to declare that the prospectus has been approved and published. It should be noted that the issue of such a stock exchange announcement is not a condition precedent for a prospectus to be deemed to be published.

The duty to issue an announcement applies in the same way to prospectuses used in Norway on a cross-border basis pursuant to Section 5-9 first paragraph, of the STA.

All prospectuses that are approved by Oslo Børs or for which notification is given of cross-border use in Norway will be included on the relevant list, cf. Article 32 of the Commission Regulation. The list of prospectuses approved or notified for cross-border use in Norway in the past 12 months can be found at www.oslobors.no.

4.4 Announcement in a national newspaper

In addition to the publication requirements set out above, Section 5-19 third paragraph of the STA imposes a duty on the issuer/offeror to announce the prospectus in a national newspaper. Such an announcement must be published no later than the next business day following the publication of the prospectus, cf. Article 31(2) of the Commission Regulation. The announcement must include the information required by Article 31(3).

The requirements for the newspapers acceptable for this purpose are defined in Article 30 of the Commission Regulation. Oslo Børs assumes that this will not cause any changes to established practice.

In the case of a prospectus produced only in connection with the admission to listing of securities of a class that is already listed, the announcement of the prospectus can be made by issuing a stock exchange announcement as an alternative to announcement in a newspaper, cf. Article 31(1) of the Commission Regulation.

Oslo Børs takes the view that the duty to announce a prospectus does not apply to prospectuses used on a cross-border basis in Norway, but it nonetheless recommends that such announcements should be issued if the securities in question are listed on Oslo Børs or are the subject of an application for listing on Oslo Børs.

In respect of the arrangements for an announcing the publication of transactions subject to the duty to prepare a prospectus, attention is drawn to Section 5-20 of the STA, Section 10.3 of the Appendix to Oslo Børs Circular 9/2005 and Oslo Børs Circular 4/2004. Oslo Børs will not carry out any prior approval of either the mandatory announcement or other types of publicity for transactions subject to the duty to prepare a prospectus.

4.5 The period for which a prospectus must be available

Neither the STA nor the Prospectus Directive stipulates the period for which a prospectus must be made available once it is published (whether in physical or electronic form). However the Oslo Børs list of prospectuses approved over the last 12 months must state where the prospectuses are available, cf. Article 32 of the Commission Regulation.

It therefore seems necessary that once a prospectus is published it must continue to be available at that location for at least 12 months.

In the event that an offeror/issuer wishes to remove a prospectus from the location at which it was published at an earlier date, this must be discussed with Oslo Børs so that the list of approved prospectuses can be amended as appropriate.

5 Supplementary prospectuses, registration prospectuses, equivalent documents etc.

Section 2.1 of this circular in respect of the production of a draft prospectus shall apply to supplementary prospectuses to the extent it is appropriate. Inspection of a supplementary prospectus will normally require less time than a normal prospectus inspection. Section 5-15, second item, of the STA requires that the supplementary prospectus must be approved in accordance with Section 5-7 of the STA and must be published without undue delay in accordance with Section 5-19 of the STA. Sections 3, 4.2, 4.3, 4.4 and 4.5 of this Circular apply similarly, with the exception of the deadlines specified in Sections 3 and 4.3.

Registration prospectuses (National prospectuses) produced and registered with the Register of Business Enterprises in accordance with Section 5-10 of the STA are subject to the same rules on publication as described in section 4 above. In the case of securities listed on Oslo Børs, the offeror/issuer must publish a stock exchange announcement within the deadline specified in section 4.1 above, which either includes the registration prospectus as an attachment or specifies where the document is made available. If the prospectus is not issued as a stock exchange announcement, then for the purposes of the Oslo Børs archives it must be sent prior to the same deadline to ma@oslobors.no .

Documents produced in accordance with the rules on exemptions from the duty to produce a prospectus found in STA Section 5-4, Nos. 4 or 6/Section 5-5, Nos. 5 or 7 (known as “equivalent documents”) must be reviewed by Oslo Børs in the manner described in Sections 4.1.2 and 4.1.4 of the Appendix to Circular 9/2005. Section 2 of this Circular will apply in respect of carrying out the review, such that Oslo Børs will normally complete its inspection within the timetable for the first response set out in Section 2.3. The offeror/issuer is responsible for ensuring that the inspection is completed within the deadline set out in section 3 above. In the case of securities listed on Oslo Børs, the duty to issue a stock exchange announcement and, where appropriate, submit the documents specified in the preceding section to Oslo Børs, will apply in the same way.

These duties also apply to documents produced in accordance with the exemption rules set out in STA Section 5-4, Nos. 7 or 9/STA Section 5-5, Nos. 8 or 9 that relate to securities listed on Oslo Børs.

Yours truly
OSLO BØRS ASA

Atle Degré, Senior Vice President Legal Affairs
Bjarne Rogdaberg, Attorney-at-Law