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Ordinance on the Prospectus for Securities Offered for Sale (Prospectus Ordinance) (Verkaufsprospekt-Verordnung, VerkProspVO)

Long title: Verordnung über Wertpapier-Verkaufsprospekte Verkaufsprospekt-Verordnung

As announced on 9 September 1998 (Federal Law Gazette I p. 2853), as last amended by Article 26 of the Third Financial Market Promotion Act (Gesetz zur weiteren Fortentwicklung des Finanzplatzes Deutschland – Drittes Finanzmarktförderungsgesetz) of 24 March 1998 (Federal Law Gazette I p. 529)


Table of Contents

Section 1 Scope
Section 2 General principles
Section 3 Information about the persons or companies assuming the responsibility for the content of the prospectus
Section 4 Information about the securities
Section 5 Information about the issuer
Section 6 Information about the capital of the issuer
Section 7 Information about the business activity of the issuer
Section 8 Information about the assets and liabilities, the financial position and the profits and losses of the issuer
Section 9 Information about the audit of the annual accounts of the issuer
Section 10 Information about the management and supervisory bodies of the issuer
Section 11 Information about the recent development and the prospects of the issuer
Section 12 Securities to which an exchange or subscription right is attached; options
Section 13 Guaranteed securities
Section 14 Reduced prospectus requirements


Section 1 Scope

This Ordinance shall apply to sales prospectuses (prospectuses) for securities in respect of which admission to Official Quotation or to the Regulated Market on a German exchange has not been sought.

Section 2 General principles

(1) The Prospectus shall provide information about the de facto and the legal circumstances necessary for the assessment of the securities offered and shall be correct and complete. It shall contain at least the information required under this Ordinance. It must be written in the German language and in a form which facilitates its understanding and analysis. The Federal Securities Supervisory Office may permit prospectuses of issuers domiciled abroad to be completely or partly written in another language if such language is not uncommonly used in Germany in the field of cross-border securities trading.

(2) The prospectus shall be dated upon its being drawn up and be signed by the offeror.

(3) If statutory information can be directly obtained from the annual accounts enclosed in the prospectus pursuant to section 8 paragraphs (1) and (2), such information does not need to be repeated in the prospectus.

Section 3 Information about the persons or companies assuming the responsibility for the content of the prospectus

The prospectus shall state the names and positions of the persons or companies, or in the case of legal persons or companies their names and registered offices, who assume the responsibility for its content; it shall contain a statement made by such persons or companies to the effect that to their knowledge the information is correct and no material circumstances have been omitted.

Section 4 Information about the securities

The prospectus shall contain the following information about the securities:

1. the nature, number and aggregate face value of the securities offered or a statement to the effect that no aggregate face value has been determined, as well as the rights attaching to the securities;

2. the taxes levied at source on the income from securities in the state in which the issuer has his registered office or in which his securities are offered; if the offeror undertakes to pay these taxes this shall be indicated;

3. the way in which the securities may be transferred and, if necessary, possible restrictions on their free transferability;

4. the organised markets on which the securities are to be traded;

5. the paying agents and depositories;

6. the details concerning payment of the subscription or selling price;

7. the procedure for the exercise of subscription rights, their transferability and the treatment of subscription rights which are not exercised;

8. the agents accepting subscriptions of the public, the period scheduled for the subscription or the sale of the securities and the possibilities to close or shorten subscriptions prematurely;

9. the individual partial amounts if the offer is made in several states simultaneously in certain partial amounts;

10. the features of the printed securities as well as the particulars and periods relating to their delivery;

11. the persons or companies underwriting or having underwritten or having guaranteed to place the securities for the issuer or the offeror; if such underwriting or guarantee does not cover the offer as a whole, it shall be indicated what part of the offer is not included;

12. the selling price of the securities or, if it is not yet know, the details and the time schedule for its determination.

Section 5 Information about the issuer

The prospectus shall contain the following information about the issuer:

1. the name and the registered office;

2. the date of incorporation and, if the issuer is incorporated for a limited period, the duration;

3. the law to which the issuer is subject and the legal form; if the issuer is a partnership limited by shares (Kommanditgesellschaft auf Aktien) additional information concerning the structure of the personally liable partner as well as the regulations under the articles of association or the partnership agreement which differ from the legal provision shall be included;

4. the purpose of the undertaking as laid down in the articles of association or the partnership agreement;

5. the Registration Court where the issuer is domiciled and the number under which the issuer has been entered in the register;

6. if the issuer belongs to a group, a short description of the group and the position of the issuer within the group.

Section 6 Information about the capital of the issuer

(1) The prospectus shall contain the following information about the capital of the issuer:

1. the amount of the capital, the number and classes of the shares into which the capital is divided stating their main characteristics and the amount of the unpaid capital;

2. the nominal value of the securities outstanding which grant their holders an exchange or subscription right attaching to shares, stating the conditions and the procedure for the exchange or subscription.

(2) In the event of an offer of shares the following additional information are required:

1. the nominal amount of the authorised or contingent capital and the duration of the authorisation for the capital increase, the group of persons possessing an exchange or subscription right as well as the conditions and the procedure for the issue of the new shares;

2. the number and main characteristics of the shares not representing capital;

3. to the extent known to the offeror, the shareholders who, directly or indirectly, are in a position to exercise a determining influence on the issuer.

Section 7 Information about the business activity of the issuer

(1) The prospectus shall contain the following information about the business activity of the issuer:

1. the most significant activities;

2. information about the issuer’s dependence on patents, licences, contracts or new production methods if they are of material importance for the business activity or the profits and losses of the issuer;

3. court or arbitration proceedings which may have a significant impact on the financial position of the issuer;

4. information about the most important current investments, except the financial assets.

(2) If the activity of the issuer has been influenced by exceptional events, this shall be indicated.

Section 8 Information about the assets and liabilities, the financial position and the profits and losses of the issuer

(1) The prospectus shall contain the following regarding the assets and liabilities, the financial position and the profits and losses of the issuer:

1. the most recently disclosed annual accounts, the record date of which must not be earlier than eighteen months before the drawing up of the prospectus;

2. interim accounts published in the meantime.

(2) If the issuer is only required to draw up consolidated accounts, these consolidated accounts shall be included in the prospectus; if he is also obliged to draw up individual accounts both types of annual accounts shall be included. It is sufficient to only include the annual accounts of the one kind if the annual accounts of the other kind do not contain any additional material information.

(3) Any material change which occur after the record date of the most recently disclosed annual accounts or of the interim accounts shall be described in the prospectus.

Section 9 Information about the audit of the annual accounts of the issuer

The prospectus shall contain the names, the addresses and the professional titles of the auditors who have audited the annual accounts of the issuer according to the legal provisions. It shall also contain the auditors’ certificate including any additional statements; if there have been any reservations about the annual accounts or if the certificate has been refused, the full text of the reservations or the refusal as well as the statement of the reasons shall be provided.

Section 10 Information about the management and supervisory bodies of the issuer

(1) The prospectus shall contain the names and addresses of the members of the management and supervisory bodies as well as their position with the issuer.

(2) In respect of an offer of shares, the total compensation (salaries, profit-sharing bonuses, expense allowances, insurance payments, commissions and any kind of fringe benefits) granted to the members of the management and supervisory bodies for the last financial year concluded shall also be indicated separately for each body.

Section 11 Information about the recent development and the prospects of the issuer

The prospectus shall contain a general description of the development of business of the issuer after conclusion of the financial year to which the most recently disclosed annual accounts relate as well as information concerning the prospects of the issuer for at least the current financial year.

Section 12 Securities to which an exchange or subscription right is attached; options

(1) In respect of an offer of securities other than shares granting their holders an exchange or subscription right for securities, the prospectus shall contain the following additional information:

1. the nature of the securities offered for exchange or subscription and the rights attaching thereto;

2. the conditions and the procedure for the exchange or subscription as well as the cases in which the conditions for the procedure may be changed.

(2) Where the issuer is not at the same time the issuer of the securities offered for exchange or subscription, the information required under sections 5 to 11 above shall also be provided in respect of the issuer of the securities offered for exchange or subscription. This information can be omitted if the securities are admitted to Official Quotation on a German exchange. Where the offeror is not at the same time the issuer of the securities offered for exchange or subscription, this information can be omitted if the offeror is not regularly in possession of the information.

(3) In respect of an offer of securities to which a payment right is attached that is determined by the value of another security or right or any other reference figure, the prospectus shall include additional information on how this amount is determined.

Section 13 Guaranteed securities

In respect of an offer of securities other than shares for the interest payment or redemption of which a legal person or company has assumed a guarantee, the information required under sections 5 to 11 above shall also be provided regarding the person or company having assumed such guarantee.

Section 14 Reduced prospectus requirements

(1) In respect of an offer of shares which are allocated to the shareholders of the issuer due to their subscription rights, the information stipulated in sections 7 to 10 can be omitted if the shareholders have been sufficiently informed otherwise.

(2) If the issuer was established less than eighteen months ago and has not yet disclosed any annual accounts, the prospectus shall, in derogation of the requirements pursuant to sections 8, 9, 10 paragraph (2) and section 11, contain the following information:

1. the opening balance sheet;

2. interim accounts whose record date shall not be earlier than two months ago;

3. the expected assets and liabilities, financial position and earnings situation for at least the current and the next financial year;

4. target figures of the issuer (investments, production, turnover, profit and losses) for at least the next three financial years.

(3) If a full prospectus, listing particulars (section 36 paragraph (3) no. 2 Exchange Act) or a business report (section 73 paragraph (1) no. 2 Exchange Act) signed by the same offeror were published in Germany within less than the last twelve months, the prospectus shall only contain the changes that have occurred since the publication of the full prospectus or business report which are likely to be relevant for the assessment of the issuer or the securities offered. The prospectus shall only be published together with the full prospectus or the business reports or with a reference to where it is available for inspection.

(4) Certain information in prospectus can be omitted if

1. such information is only of minor significance and is not likely to have an influence on the assessment of the assets and liabilities, financial position and profit and losses as well as the prospects of the issuer; or

2. the dissemination of such information would cause the issuer considerable damage, provided abstention from the publication does not mislead the public as to the facts and circumstances which are material for the assessment of the securities.


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