The NASDAQ OMX Helsinki - IPO Overview

Transcription

1 The NASDAQ OMX Helsinki - IPO Overview 1. Regulatory Background 1.1 Overview of Regulatory Background EC Regulations 809/2004 (on prospectuses) and 2273/2003 (on buy-back programmes) are directly applicable, inter alia, in Finland. In addition, the following national regulations (by which the relevant EC Directives have been implemented) apply to the listing of securities in Finland: the Finnish Securities Markets Act ( /746, as amended) (the "Securities Market Act"); the Decree 452/2005 of the Finnish Ministry of Finance (on EU prospectuses); the Decree 818/2007 of the Finnish Ministry of Finance (on national prospectuses); and the Finnish Limited Liability Companies Act 624/2006. The NASDAQ OMX Helsinki (the "Exchange"), part of the NASDAQ OMX Group, of Finland has also provided rules of the stock exchange (the "Rules of the Exchange") that cover, inter alia, certain specific listing requirements. The following rules, regulations and guidelines are also relevant when listing securities under Finnish law: The standards 5.2a and 2.2. of the Finnish Financial Supervisory Authority (the "FSA") about the securities offering and listing and marketing of financial services and financial instruments; Insider regulation (The Exchange has issued Insider Guidelines for the use of listed companies an unofficial English translation of which is available at: Ongoing disclosure obligations based on chapter 2 section 7 of the Securities Market Act; International Financial Reporting Standards (IFRS); and The Securities Market Association's Corporate Governance code (current version dated 1 October 2010) with which every publicly listed company must entirely comply or disclose and justify any deviations. 1.2 Regulatory Entities Generally, a prospectus needs to be presented to and approved by the FSA. However, under certain conditions a so-called EU prospectus may be approved by the competent authority of another European Economic Area Member State ( EEA Member State ) and notified to the FSA only. 1

2 1.3 Required Approvals Generally, only the approval of the FSA (or, under certain conditions, the competent authority of another EEA Member State) for the prospectus is required. However, a company contemplating a listing also needs to file a listing application with, and receive an approval for the listing from, the Exchange. 2. Listing Criteria Generally, a company contemplating a listing must be duly incorporated or otherwise validly established under the laws of its place of incorporation. The shares of the company must be freely transferable. 2.1 Suitability / Eligibility of Listing Applicant Under the Finnish Companies Act (624/2006, as amended), only a Finnish public limited liability company (but not a private limited liability company) may be listed on a stock exchange. On the other hand, under the Rules of the Exchange, any Finnish or non-finnish entity contemplating a listing on the Exchange must fulfill the requirements of the laws applicable to such entity. The share capital of a Finnish public limited liability company needs must at least 80,000. With respect to other entities, there are no such requirements. In brief, the following general requirements (as well as some other technical requirements) are included in the Rules of the Exchange: the company must be duly incorporated or otherwise validly established; the shares must be freely transferable; the company must well in advance of the listing establish and maintain adequate procedures, controls and systems, including systems and procedures for financial reporting to enable compliance with its obligation to provide the market with timely, reliable, accurate and up-to-date information as required at the Exchange; controls and systems to enable its obligation to provide the market information as required by the Exchange and the relevant rules; a three-year history (published annual accounts); documented profit-earning ability or sufficient working capital resources for at least twelve months' future operations; 25 per cent of all the issued and outstanding shares in the company to be held by the public; the estimated aggregate market value of the listed shares is equal to at least 1,000,000; 2

3 sufficient skills and experience of the company's board of directors and management; and the company shall notify its compliance with the Corporate Governance code (see section 10 below). However, the Exchange may (under certain conditions and at its discretion) grant an exemption from the above requirements. 2.2 Track Record Requirement The company and its group companies must have published annual accounts for at least three (3) financial years before being able to list on the Exchange. However, the Exchange may grant an exemption from such requirement. In order for the Exchange to be able to grant an exemption from the above requirement, there should be sufficient information available for the Exchange and the investors to evaluate the development of the relevant businesses and to form a sound judgment on the company and its shares as an investment. 2.3 Minimum Market Capitalisation The expected aggregate market value of the shares to be listed must be at least 1,000, Sufficiency of Working Capital A company that does not possess documented positive earnings capacity must demonstrate that it has sufficient working capital available for its planned businesses for at least twelve months following the first day of the listing. Means to present sufficient working capital for the next twelve months may include estimates on cash-flow statements, planned and available measures for financing, descriptions of the planned businesses and investments, and well-founded assessments of the future prospects of the company. A statement, made by the board of directors of the listing company, confirming the sufficiency of working capital is required. 2.5 Eligibility for Electronic Settlement The securities must be eligible for electronic settlement. A company that has issued a share which has been admitted to public trading is obliged to incorporate the shares into the book-entry system that Euroclear Finland maintains. 3. Overseas Companies Foreign incorporated companies may list on the Exchange. A foreign company which is already listed on a foreign market can also list on the Exchange. The same listing requirements apply to all companies on the Exchange. 3

4 If the shares of a foreign company have been listed in another EEA Member State, such company will primarily follow the rules of its home exchange also in Finland. Such companies must disclose any differences between the rules of their home exchange and the Rules of the Exchange. For companies listed elsewhere, the preparation, approval by the FSA and publication of a prospectus is generally required (except under certain circumstances where a prospectus approved by the competent authority of another EEA Member State and where a notification to the FSA is adequate). The listing process as a whole usually takes from 3 to 6 months. 4. Shareholding Requirements 4.1 Public Float Under the Rules of the Exchange, a sufficient number of shares of the company need to be distributed to the public. This free float requirement is defined as the portion of the share capital of a company which is freely available for trading in the market. The objective of introducing free float criteria is to avoid a distortion in the price of a security and to improve the overall investability. Such a requirement is, as a general rule, fulfilled if 25 per cent of all the shares within the relevant share class are held by the public. Any person or legal entity holding directly or indirectly less than 10 per cent of all the shares and votes in the company is considered to belong to the public (disregarding, however, the holdings of (i) the members of the board of directors and management of the company, (ii) any legal entity related to the company (e.g., a pension fund) and (iii) any shareholders with a long-term lock-up obligation). 4.2 Restrictions on Major Shareholders There are generally no restrictions on major shareholders holding certain amounts of shares. However, under the Rules of the Exchange, a company contemplating a listing must have a "sufficient number" of shareholders (see section 4.3 below). 4.3 Spread of Shareholders Under the Rules of the Exchange, a company contemplating a listing must have a "sufficient number" of shareholders. Generally, such requirement is fulfilled if the company has at least 500 shareholders each holding shares worth at least 1, Post IPO Lock-up There are no regulations on 'locking up' the shareholders for a post-listing period. However, there is, to some extent, a market practice in Finland of imposing certain contractual commitments to ensure the commercial success of the IPO, especially if the number of shares to be listed and sold is significant or if there is one shareholder holding the majority of shares. 5. Listing Procedure and Timetable 4

5 The flotation process usually begins with a due diligence review and preparation of a draft prospectus, creation of conditions for the trading of relevant shares (elimination of restrictions on free transferability and arrangements on clearing and settlement of shares), and adaptation and review of control systems and corporate governance rules. After such actions, the prospectus is filed with the FSA for review and approval. Moreover, a listing application must be filed with the Exchange. In total, the entire process usually takes from 3 to 6 months at the minimum. 5.1 Marketing the Offer The marketing process is typically driven by the (lead) arranger who prepares the relevant marketing materials and conducts management presentations and road shows etc. The details of the marketing process vary depending on the offering at hand. 5.2 Required Documentation Listing applications to the Exchange must be in writing and include the following documents: a statement by the company's Board of Directors regarding the company's expected performance in the current and immediately following financial year; a list indicating the fifty largest shareholders of the company in terms of share capital and voting power, as well as their relative holdings and votes; a statement by the company confirming its satisfaction of the listing requirements; the company's Trade Register extract or corresponding document and disclosure of any resolutions that have not yet been recorded therein; the company's articles of association as recorded in the Trade Register, and any amendments thereto resolved by a general meeting of shareholders that have not yet been recorded in the trade register, together with any amendments proposed thereto by the company's Board of Directors; an extract from the minutes of the company's Board of Directors regarding the board's resolution to submit a listing application; an opinion issued by the advisor in charge of the company's listing process, or by another party approved by the Exchange, regarding the satisfaction of the prescribed requirements for the listing of the company and its operation as a listed company and the information required to be given about the company on the listing application; a statement by the company's executive officers that they are familiar with the obligations imposed on a publicly traded company under the applicable laws and the Rules of the Exchange, and that the company is capable of acting in accordance with these obligations; 5

6 written consent for the Exchange to prepare a financial analysis on the company and/or its group companies at the expense of the company; an undertaking of the company on entering into an agreement with the Exchange and, if the company is a subsidiary of a parent company, an undertaking of the parent company to follow all the rules and guidelines of the Exchange applicable to listed companies, (as amended); an undertaking by the listed company and by the parent company of the listed company that the listed company will not make any group contribution to its parent company (where applicable); evidence of the payment of the required registration fee; a description of any facts needed in arranging the clearing and settlement of trades; and a prospectus (as defined in Chapters 3, 4 and 5 of the Securities Markets Act), which has been approved by the FSA (or a prospectus approved by the competent authority of another EEA Member State and duly notified to the FSA) and a document certifying such approval (or notification). The above documents must be enclosed with the listing application. The Exchange may, for cause, decide not to require particular piece of information or grant an exemption from particular listing requirement. 5.3 Publication of the Prospectus A prospectus is prepared by the company contemplating a listing. The prospectus needs to apply with the specific requirements outlined by the FSA. Before the prospectus is published, it must be approved. The FSA is the competent authority to approve the prospectus if the company's home state is Finland or if the competent authority of another EEA Member State has requested the FSA to approve the prospectus (which request the FSA has accepted). The application for approval must be in writing and submitted by the company. It must also include all parts of the prospectus. The FSA makes a decision on the approval of a prospectus within ten banking days (or in certain exeptional cases within twenty banking days) of the submission. The content of the prospectus must be the same at the time of both the approval and publishing. 6. Documentary Requirements 6.1 Principal Contents of Main Listing Document In general, the prospectus must contain the following: information regarding the issuer; 6

7 This comprises, among other things, information on the company's assets and liabilities; financial position profits and losses prospects; information on the securities, (for example the securities subject to the offer); the rights attaching to those securities and information on how the transaction will be constructed information on the essential characteristics and risks related to the issuer, the guarantor, the underwriter and the securities; and the parties responsible for drafting the prospectus and information on the board members, main shareholders (etc.) of the company. 6.2 Other Documents Relevant marketing materials are usually prepared as well (in which case they must be delivered to the FSA for review). 6.3 Articles / Constitutional Documents There are no specific requirements that need to be included in the company's articles of association or constitution. However, the company's articles of association may not set any restrictions on the free transferability of the shares. 7. Financial Information 7.1 Audited Financial Statements The financial statements of the listing company and its group companies need to be prepared, approved and audited in accordance with the laws applicable to such entities. 7.2 Applicable Accounting Standards A company whose securities are listed on the Exchange needs to prepare its annual accounts in accordance with International Financial Reporting Standards/ International Accounting Standards. 7.3 Period Covered by the Accounts Generally, the accounts must cover at least the three preceding financial years. In order for the Exchange to be able to grant an exemption from the above requirement, there should be sufficient information available for the Exchange and the investors to 7

8 evaluate the development of the relevant business and to form a sound judgment on the company and its shares as an investment. 7.4 Overseas Companies The requirements regarding financial statements are the same for all companies listing on the Exchange. 7.5 Pro Forma Financial Information Under the applicable EC Regulation 809/2004 (on prospectuses), pro forma financial information needs to be included in a prospectus provided that a material change has occurred or will occur in the business activities of the listing company. According to the applicable standard of the FSA, such information needs to be included in form and substance complying with the guidelines of the Finnish Institute of Authorised Public Accountants on pro forma financial information. 7.6 Interim Financial Information Generally, a company should include the latest quarterly financial information in the flotation documentation either by incorporation or reference. 8. Parties Involved 8.1 Sponsor There is no requirement to appoint a sponsor or broker. 8.2 Other Advisers Lawyers: The lawyers of the listing company usually carry out, inter alia, the legal due diligence of the company and the negotiations with the Exchange, the FSA and other advisors involved. They also draft the listing application, prospectus and other relevant documents (based on the information the company and its advisors have provided) as well as stock exchange releases and other public notifications. Accountants/auditors: The listing company's auditors usually prepare pro forma accounts, participate in due diligence processes, prepare a statement for the prospectus (review of the company's accounts for the preceding three financial years) and give statements relating to the company's financial reporting standards. 9. Listing Costs 9.1 Listing Fees A company will be required to pay a registration fee of 40,000 to the Exchange prior to submitting its listing application. This registration fee is non-refundable. All companies whose shares are listed on the Exchange are required to pay an annual fee (the amount of which depends on the market value of the relevant company). In addition, a fee of 5,000 is payable to the FSA for the review and approval of the prospectus. 8

9 9.2 Sponsor's Fees The cost of a sponsor (financial advisor) typically varies depending on the value of the offering at hand, and, therefore, no exact amount may be given. 9.3 Lawyers' and Accountants' Fees The fees of lawyers and accountants typically vary significantly depending on the size and structure of the arrangement at hand. Typically the lawyer's fees in connection with an IPO arrangements range from 150,000 to 200, Corporate Governance Requirements The company shall disclose its compliance with the corporate governance code in the jurisdiction where it is incorporated. If the company is not subject to a corporate governance code in its home country, the company shall apply the corporate governance code that is applied on the Stock Exchange. Detailed information on such corporate governance requirements is included in the Corporate Governance Recommendation for Listed Companies, (see for more information), 11. Continuing Obligations Under the general rule as stated in the chapter 2 section 7 of the Securities Market Act, a company listed on the Exchange is obligated to disclose without undue delay any information that relates to the company and is likely to have a material effect on the value of the securities issued by the company. In addition, the company needs to disclose financial and interim statements on a yearly and quarterly basis as well as certain other information relating to such statements. Information disclosed by the company must be correct, relevant and clear. The information shall not be misleading. Investors must have equal, equitable and simultaneous access to information 12. First North First North is a market for smaller companies and growth companies. It is Multilateral Trading Facility (MTF) and it does not have the legal status of a regulated market. The regulatory approach is adjusted to the needs of growth companies so they can enter the market and concentrate on building their business, with an easier transition to becoming a public company. All companies that wish to join First North must appoint a certified adviser in association with the application process. The certified adviser s role is to guide the company through the application process. The certified adviser also has the obligation to provide support and ensure that the company continuously meets the requirements associated with having shares admitted to trading on First North. Furthermore, it is the obligation of the certified adviser to constantly monitor the company s compliance with the rules of First North, and report any transgression to the Exchange. The overall admission requirements to First North are the following: 9

10 Conditions for a sufficient supply and demand: - sufficient number of shareholders; - at least 10 per cent of the share capital in public hands; or - acquisition of the services of a liquidity provider; Publication of a company description/prospectus; The company must at all times have an agreement with a certified adviser; The company must accept and sign the general terms and conditions for admission to trading on First North; and The company must possess the organization and staff required in order to comply with the requirements regarding disclosure of information to the market. 13. Our Office We can provide legal advice to foreign clients on all matters relating to IPOs and other equity capital markets transactions. For further information, please contact one of the following partners: Mr. Antti Säiläkivi, Partner, tel , antti.sailakivi@hpplaw.fi Mr. Björn Nykvist, Partner, tel , bjorn.nykvist@hpplaw.fi Hammarström Puhakka Partners, Attorneys Ltd. Bulevardi 1 A, FI Helsinki, Finland Tel: Fax: Website: Februrary