The Irish Stock Exchange oversees the admission of securities to trading on its markets.

Transcription

1 Ireland IPO Overview 1 Regulatry Backgrund 1.1 Overview f Regulatry Backgrund Issuers must cmply with the Irish Stck Exchange Listing Rules ( Listing Rules ) t be admitted n and t remain n the Main Securities Market (the main equity capital market). In additin t the Main Securities Market, the Irish Stck Exchange maintains the Enterprise Securities Market ( ESM ), an unregulated market fr small t medium-sized cmpanies. Issuers n the ESM must cmply with the ESM Rules fr Cmpanies. 1.2 Regulatry Entities The Irish Stck Exchange. The Irish Stck Exchange is regulated by the Irish Financial Services Regulatry Authrity ( Financial Regulatr ). 1.3 Required Apprvals The Irish Stck Exchange versees the admissin f securities t trading n its markets. 2 Listing Criteria Sme f the dmestic requirements fr dmestic cmpanies t list n the Exchange include: Size Limits Main Securities Market the expected aggregate market value f all securities t be listed must be at least 1 millin except where securities f the same class are already listed. ESM - a cmpany applying fr admissin t the ESM market must have a minimum market capitalisatin f 5 millin except where securities f the same class are already listed. Trading Recrd Main Securities Market a cmpany must demnstrate that it has been carrying n an independent business as its main activity fr at least three years. ESM n minimum trading recrd is required. Wrking Capital Main Securities Market a cmpany must satisfy the Irish Stck Exchange that it and its subsidiary undertakings (if any) have sufficient wrking capital available fr the grup s requirements fr at least the next 12 mnths frm the date f publicatin f the prspectus. ESM a cmpany applying fr admissin must make a statement in its admissin dcument that, in the directrs pinin, the wrking capital available t it and its grup will be sufficient fr at least 12 mnths after admissin. 2.1 Suitability/Eligibility f Listing Applicant An applicant must be duly incrprated r therwise validly established accrding t the relevant laws f its place f incrpratin r establishment and perating in cnfrmity with its memrandum and articles f assciatin r equivalent cnstitutinal dcument. If an applicant is a cmpany incrprated in Ireland it must nt be a private cmpany. 1

2 2.2 Track Recrd Requirement A cmpany must demnstrate that it has been carrying n an independent business as its main activity fr at least three years where seeking admissin t the Main Securities Market f the Irish Stck Exchange. There is n minimum trading recrd required fr a cmpany seeking admissin t the ESM. An applicant fr the admissin f equity securities f a scientific research based cmpany must demnstrate that it has a three year recrd f peratins in labratry research and develpment which replaces the requirement t have a three year trading recrd. A mineral cmpany (a cmpany, whse principal activity is the extractin f mineral resurces) is exempt frm the three year trading recrd. 2.3 Minimum Market Capitalisatin The expected aggregate market value f all securities t be listed n the Main Securities Market f the Irish Stck Exchange must be at least 1 millin except where securities f the same class are already listed. A cmpany applying fr admissin t the ESM market must have a minimum market capitalisatin f 5 millin except where securities f the same class are already listed. 2.4 Sufficiency f Wrking Capital An applicant fr the admissin f shares t the Main Securities Market f the Irish Stck Exchange must satisfy the Irish Stck Exchange that it and its subsidiary undertakings (if any) have sufficient wrking capital available fr the grup's requirements fr at least the next 12 mnths frm the date f publicatin f the prspectus fr the shares that are being admitted. The Irish Stck Exchange may dispense with this requirement if an applicant already has equity securities listed, and the Irish Stck Exchange is satisfied that the prspectus cntains satisfactry prpsals fr prviding the additinal wrking capital thught by the applicant t be necessary. The Irish Stck Exchange may als dispense with this requirement if it is satisfied that: the applicant's business is entirely r substantially that f banking, insurance r prviding similar financial services; the applicant's slvency and capital adequacy is regulated by the Financial Regulatr r is suitably regulated by anther regulatry bdy; and the applicant is meeting its slvency and capital adequacy requirements and is expected t d s fr the next 12 mnths withut having t raise further capital. A statement cnfirming the sufficiency f wrking capital is required. The directrs f the cmpany make the statement based n the wrking capital reprt which will have been prepared by the accuntants. 2.5 Eligibility fr Electrnic Settlement Securities must be eligible fr electrnic submissin. 3 Overseas Cmpanies 2

3 Overseas cmpanies must cmply with the Irish Listing Rules, which cntain mdified cntinuing disclsure bligatins fr cmpanies incrprated utside Ireland, depending n whether they have a primary r secndary listing in Ireland. The Irish Stck Exchange may refuse an applicatin fr admissin t listing fr securities already listed in anther EEA state, if the applicant has failed t cmply with the bligatins t which it is subject by virtue f that listing; r if it cnsiders that the applicant des nt cmply r has nt cmplied with the requirements f the listing rules r with any special cnditin impsed upn the applicant by the Irish Stck Exchange. There are n ther additinal requirements fr an verseas cmpany t list n the Irish Stck Exchange. If a cmpany is already listed elsewhere, it takes apprximately fifteen weeks frm the time f appinting the relevant advisers t gain admissin t the Main Securities Market f the Irish Stck Exchange. 4 Sharehlding Requirements 4.1 Public Flat 25 per cent f the shares fr which applicatin fr admissin t the Main Securities Market f the Irish Stck Exchange has been made must be in public hands. Shares are nt held in public hands if they are held, directly r indirectly by: a directr f the applicant r f any f its subsidiary undertakings; a persn cnnected with a directr f the applicant r f any f its subsidiary undertakings; the trustees f any emplyees share scheme r pensin fund established fr the benefit f any directrs and emplyees f the applicant and its subsidiary undertakings; any persn wh under any agreement has a right t nminate a persn t the bard f directrs f the applicant; r any persn r persns in the same grup r persns acting in cncert wh have an interest in 5 per cent r mre f the shares f the relevant class. Treasury shares are nt t be taken int cnsideratin when calculating the number f shares f the class. A percentage lwer than 25 per cent may be acceptable t the Irish Stck Exchange if the market will perate prperly with a lwer percentage in view f the large number f shares f the same class and the extent f their distributin t the public. 4.2 Restrictins n Majr Sharehlders A cmpany which has a cntrlling sharehlder must be capable at all times f carrying n its business independently f such cntrlling sharehlder including any assciate theref and all transactins and relatinships between the cmpany and any cntrlling sharehlder (r assciate) must be at arm s length and n a nrmal cmmercial basis. A cntrlling sharehlder is any persn (r persns acting jintly by agreement whether frmal r therwise) wh is: entitled t exercise, r t cntrl the exercise f, 30 per cent r mre f the rights t vte at general meetings f the applicant (but the rights t vte attaching t any treasury shares held by a cmpany are nt t be taken int accunt when calculating a persn s percentage f rights t vte under this paragraph); r 3

4 able t cntrl the appintment f directrs wh are able t exercise a majrity f vtes at bard meetings f the applicant. A cmpany listed n the Irish Stck Exchange must cmply with cntinuing bligatins cntained in the Listing Rules, the Market Abuse (Directive 2003/6/EC) Regulatins 2005 and Transparency (Directive 2004/109/EC) Regulatins 2007 (Transparency Regulatins) which include an bligatin t disclse majr sharehldings. 4.3 Spread f Sharehlders If an applicatin is made fr the admissin f a class f shares t the Main Securities Market f the Irish Stck Exchange, a sufficient number f shares f that class must, n later than the time f admissin, be distributed t the public in ne r mre EEA States. A sufficient number f shares will be taken t have been distributed t the public when 25 per cent f the shares fr which applicatin fr admissin has been made are in public hands. 4.4 Pst IPO Lck-up It is nt unusual fr directrs and their related parties wh are interested in rdinary shares f the Cmpany t be subject t lck-up prvisins. In accrdance with these prvisins they usually undertake nt t sell, transfer r dispse f these shares fr a lck-up perid f 12 mnths frm the date f admissin (except in limited circumstances, including a takever, death and curt rders). In additin, where they decide t sell these shares within 12 mnths f the expiry f the lck-up perid, they are bliged t d s thrugh their brker in rder t preserve an rderly market in the trading f the Cmpany s rdinary shares. Whether a lck-up is required in any particular case depends n the view taken by the relevant crprate brker. 5 Listing Prcedure and Timetable Three t six mnths befre admissin During this perid the fllwing typically takes place: appinting advisers and preparing a detailed timetable; cnducting due diligence and reviewing cnditins fr listing; and preparing the lng frm accuntants' reprt (if required). Tw t three mnths befre admissin During this perid the fllwing typically takes place: circulating a draft f the shrt frm accuntants' reprt (if required); preparing the wrking capital reprt; preparing the draft prspectus and ancillary dcuments, revising same and submitting them t the Irish Stck Exchange fr review; and preparing rad shw presentatins. Tw mnths t tw weeks befre admissin During this perid the fllwing typically takes place: successive drafting meetings and submissin f the revised draft prspectus t the Irish Stck Exchange; 4

5 reviewing the cash flw and prfit frecast; verifying the cntents f the prspectus; publishing cnnected brkers' research; frmally submitting and agreeing all dcuments with the Financial Regulatr; publishing the pathfinder r price range prspectus; and undertaking investr presentatins, rad shws and bkbuilding. Admissin t listing week In listing week the fllwing typically takes place: the last date fr receipt f bids; cmpleting and finalising all dcuments fr apprval by the Financial Regulatr; signing the underwriting agreement; publishing final prspectus with a fixed price; applying fr listing (within 14 days f the prspectus' publicatin); start f dealing; and the stabilisatin perid (fr 30 days after admissin t listing). 5.1 Marketing the Offer The securities are sld n the basis f the prspectus alne, but marketing can include: placing advertisements in jurnals and newspapers; publishing cnnected brkers research befre the blackut perid in advance f publicatin f the prspectus; presentatins t investrs by the issuer s senir management; and direct cntact by the crprate brker with investrs t generate investr interest. 5.2 Required Dcumentatin The fllwing dcuments must be submitted, in final frm, t the Irish Stck Exchange by p.m. tw business days befre the Irish Stck Exchange is t cnsider the applicatin t the Main Securities Market f the Irish Stck Exchange: a cmpleted applicatin fr admissin f securities t the Main Securities Market f the Irish Stck Exchange (Schedule 3A) signed by a duly authrised fficer f the issuer; if anther EEA State is the hme Member State fr the securities, a cpy f the prspectus, a certificate f apprval and (if applicable) a translatin f the summary f the prspectus; any circular that has been published in cnnectin with the applicatin, if applicable; 5

6 any supplementary prspectus that has been apprved by the cmpetent authrity, if applicable; written cnfirmatin f the number f securities t be alltted (pursuant t a bard reslutin alltting the securities); if a prspectus has nt been prduced, a cpy f the RIS annuncement detailing the number and type f securities that are the subject f the applicatin and the circumstances f their issue; and in the case f a new applicant, a cpy f the certificate f incrpratin r equivalent dcument. If a prspectus has nt been prduced, then the applicatin fr admissin f securities t the Main Securities Market f the Irish Stck Exchange (Schedule 3A) must cntain cnfirmatin that a prspectus is nt required and details f the reasn(s) why it is nt required, including a reference t the specific exemptin in the Prspectus Directive 2003/71/EC that the issuer is relying n. The fllwing dcuments signed by a spnsr must be submitted, in final frm, t the Irish Stck Exchange by 9:00 a.m. n the day the Irish Stck Exchange is t cnsider the applicatin: a cmpleted sharehlder statement, in the case f an applicant that is applying fr a listing f a class f equity shares r preference shares fr the first time; r a cmpleted pricing statement, in the case f a placing, pen ffer, vendr cnsideratin placing, ffer fr subscriptin f equity shares r an issue ut f treasury f equity shares f a class already listed. The fllwing dcuments must be submitted in final frm t the Irish Stck Exchange as sn as practicable after the Irish Stck Exchange has cnsidered the applicatin: written cnfirmatin f the number f securities that were alltted (pursuant t a bard reslutin alltting the securities) if the number is lwer than the number that was annunced t the market as being admitted t listing; a cmpleted issuer's declaratin; and in an issue pursuant t a ntice served under sectin 204 f the Cmpanies Act 1963 (right f fferr t buy ut minrity sharehlders), a cpy f the ntice. The infrmatin required fr admissin t ESM is less exacting and must be prvided t the Irish Stck Exchange ten t twenty business days befre the expected date f admissin. 5.3 Publicatin f the Prspectus If under the Prspectus Regulatins (Directive 2003/71/EC) 2005 (Prspectus Regulatins) r under the law f anther EEA State: a prspectus must be apprved and published fr the securities; r the applicant is permitted and elects t draw up a prspectus fr the securities, then t be listed n the Main Securities Market f the Irish Stck Exchange, a prspectus must have been apprved by a cmpetent authrity and published. If anther EEA State is the hme Member State fr the securities, the relevant cmpetent authrity must have supplied the Financial Regulatr with: 6

7 a cpy f the prspectus as apprved; a certificate f apprval; and (if applicable) a translatin f the summary f the prspectus. The Financial Regulatr must apprve the prspectus befre its publicatin, althugh the apprval prcess is delegated t the Irish Stck Exchange. The cmpetent authrity must decide t apprve r disapprve r seek further infrmatin within 10 wrking days f the submissin f a draft prspectus. This time limit is extended t 20 wrking days if the public ffer invlves securities issued by an issuer which des nt have any securities admitted t trading n a regulated market and wh has nt previusly ffered securities t the public. Publicatin f the prspectus can be achieved in a number f ways, fr example: ne r mre newspapers widely circulated in Ireland as the cuntry where the admissin t trading is sught; in a printed frm t be made available, free f charge, t the public at the ffices f the market n which the securities are being admitted t trading; r electrnic frm n the issuer s website and, if applicable, n the website f the financial intermediaries placing r selling the securities, including paying agents. An issuer f equity securities which publishes a prspectus in respect f such securities is bliged t avail f this methd f publicatin when using certain ther means f publicatin. The prspectus must cmply with the prvisins f Regulatin (EC) N. 809/2004 implementing Directive 2003/71/EC as regards prspectuses and disseminatin f advertisements. 6 Dcumentary Requirements 6.1 Cntents f Main Listing Dcument The Prspectus Regulatins set ut the cntent requirements fr prspectuses, which vary accrding t the nature and circumstances f the issuer and the type f securities t be listed. The prspectus must cntain: all infrmatin necessary t enable investrs t make an infrmed assessment f: the issuer's assets and liabilities; the issuer's financial psitin; the issuer's prfits and lsses; the issuer's and any guarantr's prspects; the rights attaching t the securities. the minimum infrmatin required under the Prspectus Regulatins, including infrmatin n: the persns respnsible fr the prspectus; the shares fr which the applicatin is being made; the issuer and its capital; the issuer grup's rganisatinal structure and management; the issuer's assets and liabilities, financial psitin and prfits and lsses; risk factrs; the issuer's peratins and finances; capital resurces; recent develpments, prspects, and the issuer grup's trend infrmatin. 7

8 6.2 Other Dcuments The principal dcuments prduced in an applicatin t seek admissin t trading n the Main Securities Market f the Irish Stck Exchange include: pre-admissin rerganisatin dcumentatin (where relevant); engagement letters with advisers; due diligence reprts; accuntants' reprts; pathfinder prspectus; prspectus (and any supplementary prspectus); underwriting/spnsr's agreement; registrar's agreement; pricing statement; verificatin ntes; share ptin dcumentatin; varius cmfrt letters and legal memranda; bard reslutins and sharehlder reslutins t apprve the dcumentatin; and applicatin fr admissin. 6.3 Articles/Cnstitutinal Dcuments T be listed, securities must be freely transferable and shares must be fully paid and free frm all liens and frm any restrictin n the right f transfer (except any restrictin impsed fr failure t cmply with a ntice under sectin 81 f the Cmpanies Act 1990). The cmpany s articles f assciatin must prvide that the shares are freely transferable and free frm any restrictin n the right f transfer. The articles f assciatin must als prvide fr the transfer f shares in uncertificated frm (via CREST) as well as in certificated frm. 7 Financial Infrmatin 7.1 Audited Financial Statements A new applicant fr the admissin f shares t the Main Securities Market r securities cnvertible int its wn shares must have published r filed audited accunts that: cver at least three years; are the latest accunts fr a perid ended nt mre than six mnths befre the date f the prspectus fr the relevant securities; are cnslidated accunts fr the applicant and all its subsidiary undertakings; 8

9 have been independently audited, in accrdance with the auditing standards applicable in an EEA state r an equivalent standard; and have been reprted n by the auditrs withut mdificatin. A new applicant must: take all reasnable steps t ensure that its auditrs are independent f it; and btain written cnfirmatin frm its auditrs that they cmply with guidelines n independence issued by their natinal accuntancy and auditing bdies. 7.2 Applicable Accunting Standards The accunts must have been independently audited, in accrdance with the auditing standards applicable in an EEA State r an equivalent standard. 7.3 Perid Cvered by the Accunts The accunts must cver at least three years. The accunts must be fr a perid ended nt mre than six mnths befre the date f the prspectus fr the relevant securities. Relaxatins frm this requirement are available fr: an applicant fr the admissin f equity securities f a scientific research based cmpany that can demnstrate that it has a three year recrd f peratins in labratry research and develpment; and a mineral cmpany (a cmpany, whse principal activity is the extractin f mineral resurces) which is exempt frm the three year trading recrd. 7.4 Overseas Cmpanies The same accunting requirements apply t an verseas cmpany. 7.5 Pr Frma Financial Infrmatin Applicants are permitted t include pr frma financial infrmatin and are required t prduce the same where a significant grss change (i.e. a descriptin f hw the transactin might have affected the assets and liabilities and earnings f the issuer, had the transactin been undertaken at the cmmencement f the perid being reprted n r at the date reprted) has taken place. 7.6 Interim Financial Infrmatin If the applicant has published quarterly r half yearly financial infrmatin since the date f its last audited financial statements, these must be included in the prspectus. 8 Parties Invlved 8.1 Spnsr An applicant seeking admissin t the Main Securities Market must appint a spnsr. A spnsr must be a bdy crprate r partnership wh can demnstrate an active invlvement as a crprate finance adviser t listed cmpanies ver at least three years. It must als have executive staff wh will handle these functins internally and can demnstrate persnal experience f crprate finance activity with listed cmpanies ver at least three years. A listed cmpany is defined as a cmpany (ther than an investment fund), any class f whse securities is admitted t 9

10 listing n the Main Securities Market f the Irish Stck Exchange and/r the Official List maintained by the Financial Services Authrity in the United Kingdm. 8.2 Other Advisers The investment bank/spnsr f an initial public ffer acts as the principal pint f cntact between the issuer, its advisers and the Irish Stck Exchange. It advises the issuer and its directrs n the applicatin and interpretatin f the Listing Rules and, where required, cnfirms its (r the issuer's) cmpliance with the Listing Rules t the Irish Stck Exchange. It assesses the issuer's suitability fr listing and advises n the structure and timetable f the ffering. The investment bank/spnsr wes a duty f care t the Irish Stck Exchange. The underwriter r stabilising manager prvides an underwriting facility where funds are raised in an initial public ffer. It carries n stabilisatin activity in the weeks fllwing an initial public ffer. The crprate brker advises n market cnditins and ptential investr demand fr securities. It represents the cmpany t private and institutinal investrs, and markets securities t investrs. The crprate brker advises n the pricing and underwriting f the issue. Slicitrs are engaged t: ensure that all legal requirements (including legal due diligence) are met, bth in preparing the cmpany fr fltatin and in preparing the prspectus; assist in drafting the prspectus and verify its accuracy; versee amendments t the issuer's cnstitutinal dcuments; prepare directrs' service cntracts and share ptin schemes; and negtiate the underwriting dcumentatin (where applicable). The reprting accuntants: prepare a lng frm reprt reprt t the directrs and spnsr n the adequacy f the issuer's financial systems and cntrls; prepare pr frma financial infrmatin and reprts; reprt n any prfit frecast and wrking capital requirements; and prvide varius cmfrt letters t the spnsr and, in certain cases, the underwriter. Public relatins cnsultants advise n public relatins matters, dealing with the media and sharehlders. 9 Listing Csts 9.1 Listing Fees The listing fees fr admissin t the Main Securities Market f the Irish Stck Exchange are determined n a sliding scale referenced t the market capitalisatin f the issuer up t a maximum f 118,800 fr a market capitalisatin exceeding 2,539,476,000. Irish listed cmpanies' annual fees (excluding value added tax (VAT)) are a minimum f 6,350 rising in increments t a 10

11 maximum annual fee f 30,000. Issuers incrprated ther than in Ireland will be charged ne-half f the scale. In relatin t the ESM, an annual fee f 4,000 is payable by all listed cmpanies. 9.2 Spnsr s Fees The apprximate cst f the spnsr fr an applicatin t admit securities t the Main Securities Market f the Irish Stck Exchange is in the regin f 60, ,000. The fees will als vary depending n whether a placing is being carried ut simultaneusly with the listing. 9.3 Lawyers and Accuntants Fees The apprximate cst f lawyers and accuntants fr an applicatin t admit securities t the Main Securities Market f the Irish Stck Exchange is in the regin f 40,000-80, Crprate Gvernance Requirements Public cmpanies' duties generally derive frm three main surces: the cmpany's memrandum and articles; the Cmpanies Acts, 1963 t 2009; and ther legislatin and guidelines. Public cmpanies listed n the Irish Stck Exchange must cmply with the Listing Rules. Within the framewrk f the Listing Rules are: the Mdel Cde, which impses restrictins n dealings in securities beynd thse impsed by law; and the Cmbined Cde which cmprises the Principles f Gd Gvernance and Cde f Best Practice ( Cmbined Cde ). The Cmbined Cde is nt legally binding but listed cmpanies shuld disclse whether r nt they have cmplied with it n a cmply r explain basis. 11 Cntinuing Obligatins A cmpany listed n the Main Securities Market f the Irish Stck Exchange must cmply with cntinuing bligatins cntained in the Listing Rules, Market Abuse (Directive 2003/6/EC) Regulatins 2005 ( MAD Regulatins ), the Transparency (Directive 2004/109/EC) Regulatins 2007 ( Transparency Regulatins ) and the Sharehlders Rights (Directive 2007/36/EC) Regulatins 2009 ( Sharehlder Regulatins ). The Listing Rules impse detailed cntinuing bligatins t ensure timely disclsure f all relevant infrmatin and equal treatment f sharehlders. These bligatins include: General disclsure requirements under the MAD Regulatins and related disclsure rules. Ntificatin t and/r apprval frm sharehlders fr transactins f a certain size. Disclsure f any purchase f the issuer's wn securities. Cmpliance by cmpany directrs, persns discharging managerial respnsibilities and emplyees with access t inside infrmatin cncerning the issuer in respect f their dealings in cmpany's shares (Mdel Cde as appended t the Listing Rules). 11

12 Ntificatin f directrs' details, their dealings in the cmpany's shares and any changes in the bard. Disclsure f majr sharehldings. Disclsure f financial infrmatin. Cmpliance with the prvisins f the Sharehlder Regulatins including the prvisins relating t vting rights. 12 Our Office We have advised a number f freign clients cnsidering listing n the Irish Stck Exchange. Fr further infrmatin please cntact ne f the fllwing lawyers: Orlaith O Brien Tel: rlaith.brien@mcevypartners.ie Edel Cnway Tel: edel.cnway@mcevypartners.ie McEvy Partners Cnnaught Huse Burlingtn Rad Dublin 4 Ireland Tel: Fax: rlaith.brien@mcevypartners.ie, edel.cnway@mcevypartners.ie Website: 12