International ECM Listings Rules, Requirements & Obligations in Austria

The Official Market (Amtlicher Handel) is currently the only regulated market in Austria.

The Official Market is operated by Wiener Börse AG (Vienna Stock Exchange, VSE) and regulated and supervised by the Austrian Financial Market Authority (Finanzmarktaufsicht, FMA). The Austrian Stock Exchange Act (Börsegesetz 2018, BörseG 2018) applies.

The Official Market comprises the Standard Market and the Prime Market segments. Issuers of ordinary shares or certificates that represent shares that wish to attract investors by committing themselves to observing higher standards of transparency, quality and disclosure than those imposed by the   BörseG 2018 and other rules can apply to admit their shares to the Prime Market segment. In this case, the issuer must undertake to comply with the additional rules of that segment.

Issuers of shares and other equities (e.g. participation certificates, profit-sharing rights) not admitted to the Prime Market segment can be admitted to the Standard Market segment consisting of two parts, a division of continuous trading (Standard Market Continuous) and a single intra-day auction (Standard Market Auction).

Joint Stock Corporations (Aktiengesellschaft, AG) or European Companies (SE) with ordinary shares (Prime Market or Standard Market) or non-voting preferred shares (Standard Market).

Foreign companies can be admitted provided their registration and the by-laws or articles of association comply with their national law.

Prospectuses.

A prospectus prepared and approved in accordance with the Prospectus Regulation is required when an issuer:

• first applies for a class of securities to be admitted to listing on the Official Market of the VSE, currently the only regulated market in Austria;
• issues new shares in any rolling 12 month period which would represent 20% or more of its shares of the same class already admitted to trading on the Official Market of the VSE.

A minimum share capital of  €1,000,000 is required.

For admission to the Official Market at least 25% of total nominal value (in the case of par value shares) or 25% of the number of shares (in the case of non-par value shares) must be distributed to the public (free float). The requirement may also be fulfilled if it can be demonstrated that an adequate free float is ensured which is assumed if 10% of the shares are held by at least 50 different shareholders.

For admission to the Official Market, whether to the Prime Market segment or to the Standard Market segment, the issuer must have existed for at least three years.

To be admitted to the Official Market, an issuer must have published annual financial statements for the three preceding complete financial years. In case of a group of companies, financial information must be prepared according to IFRS or internationally recognised accounting standards, in case of single companies/entities, the financial statements may also be prepared according to national standards.

The issuer’s securities must be traded in a fair, orderly and efficient manner and must be freely tradable without restrictions.

Generally, all shares of the same class must be listed. But it is possible not to list part of a class if (a) it is subject to particular legislative requirements, (b) doing so would not prejudice investors, and (c) the arrangement is clearly described in the prospectus.

The prospectus must outline any controlling interests of shareholders in the company as well as the major shareholders and the shareholder structure. If the company is not independent from controlling shareholders, this fact must be disclosed in the prospectus.

These are not required by applicable law or listing rules; but in practice underwriters to the issue generally require contractual lock-ins (more commonly known in Austria as “lock-ups”) – usually for 6 months for existing financial investors and up to 18 months for existing major shareholders and management.

In order to be listed on the Official Market, there is no requirement for the issuer to appoint a sponsor or financial adviser.

The VSE introduced a “Specialist” system which is designed in part as a supplement to the market-maker system by introducing an additional broker function with the aim of increasing liquidity in the market.

For a listing of shares on the Prime Market segment the issuer is required to appoint at least one Specialist. A Specialist’s role is to place firm, competitive buy and sell quotes into the system along with the market-makers and, with the help of additional measures, to enhance market liquidity.

For a listing of shares on the Standard Market segment the issuer is required to have at least one market-maker. For a listing of shares on the Standard Market Auction part there is no requirement for a market-maker.

All information, including marketing communications, addressed to investors or potential investors must be fair, clear and not misleading. Marketing communications must be clearly identifiable as such.

Advertisements must state that a prospectus has been, or will be, published and indicate where investors are or will be able to obtain it. The information contained in an advertisement must be accurate and must not be misleading and must be consistent with the information contained in the prospectus.

All information disclosed in an oral or written form concerning the offer of securities to the public or the admission to trading on a regulated market, even when it is not for advertising purposes, must be consistent with the information contained in the prospectus. In the event that material information is disclosed by an issuer or an offeror and addressed to one or more selected investors in oral or written form, such information must, either be disclosed to all other investors to whom the offer is addressed or be included in the prospectus or in a supplement to the prospectus.

Depending on the size and the complexity of the issuer and the public offering, the listing process normally lasts for about five to seven months, beginning with the decision to offer shares to the public. Due diligence on the issuer and the preparation of the prospectus usually require three to four months and the listing procedure about two months

The sale of a substantial portion of shares might have a significant effect on the prices and thus trigger an obligation to disclose inside information. There may also be contractual arrangements, such as pre-emptive rights of certain other shareholders which need to be observed.

In addition, if the secondary offering constitutes a public oiffer, a prospectus prepared in accordance with the European Prospectus Regulation must be published.

Where shares of an issuer are bought or sold, those persons buying or selling have to inform the issuer, the VSE and the FMA within 2 trading days if, due to the transaction, the voting rights held by that person reach, exceed or fall below 4%, 5%, 10%, 15%, 20%, 25%, 30%, 35%, 40%, 45%, 50%, 75% or 90% of the total number of voting rights.

Third country issuers must demonstrate under certain circumstances that the listing on the Official Market is not for the purpose of circumventing investor protection regulations in the issuers home jurisdiction.

For admission to the Prime Market segment:

• issuers with their registered office outside of Austria must disclose the material provisions of company law that apply to them on their websites;
• an issuer subject to the company law of another EU or EEA Member State must (i) submit a declaration of commitment to comply with a Code of Corporate Governance recognised in the relevant economic area, (ii) disclose the extent to which it complies with such Code and explain any non-compliance and (iii) have a link on its website to the relevant Code;
• an issuer not subject to the company law of an EU or EEA Member State must submit a declaration of commitment to comply with the Austrian Code of Corporate Governance and must disclose on its website the extent to which it complies and explain any non-compliance.

(a) English or German;

(b) If already made in English or German (which are also the two options available for the registration document / securities note), no translation of the prospectus summary is required for passporting.

Financial Market Authority (Finanzmarktaufsicht) (FMA): http://www.fma.gv.at

Vienna Stock Exchange (Wiener Börse): http://www.wienerborse.at

Regulated market

Under Austrian law various matters are subject to shareholder approval, including a change to the articles of association, the appointment of members of the supervisory board (Aufsichtsrat), the allocation of profits, and the appointment of the annual auditor.

Additionally, Austrian mandatory law stipulates that the following measures, inter alia, require the approval of a majority of at least 75% (which may not be reduced by the articles of association) of the share capital present at the shareholders’ meeting:

• a change of the company’s business purpose;
• an increase in share capital;
• the disapplication of shareholders’ pre-emption rights in relation to issues of new shares;
• the approval of authorised or conditional capital;
• a decrease of the share capital;
• the issue of convertible bonds, participating bonds, and participation rights;
• the dissolution of the company, or continuation of the company if it has already been dissolved;
• the transformation of the company into a limited liability company (Gesellschaft mit beschränkter Haftung);
• the approval of a merger or demerger;
• the transfer of all the assets of the company; and
• the approval of profit pools or agreements on the operation of the business.

Approval of a majority of 90% of the entire share capital is required for an upstream merger pursuant to the Austrian Transformation Act (Umwandlungsgesetz), with certain exceptions, for a spin-off disproportionate to shareholdings pursuant to the Austrian Spin-Off Act (Spaltungsgesetz) or for a squeeze-out pursuant to the Austrian Act on the Squeeze-out of Minority Shareholders (Gesellschafter-Ausschlussgesetz).

For companies admitted to the Prime Market segment the following applies:

• an Austrian issuer must include its statement of commitment to the Austrian Code of Corporate Governance (Österreichischer Corporate Governance Kodex) in its corporate governance report and publish the submission on its website. Annually, a statement must be included in the financial statements explaining whether the Code was complied with or deviated from. The explanation must also be published on the issuer’s website;
• companies that are subject to the company law of another EU Member State or EEA Member State and listed on the Prime Market are obliged to comply with a Code of Corporate Governance recognised in their relevant economic area and must include a declaration of commitment including a reference to the Code complied with in the Annual Financial Report or in a Corporate Governance Statement and publish it on the company’s website. Once a year, a declaration of compliance with the Code, including explanations of any deviations from the Code, must be included in the Annual Financial Report or Corporate Governance Statement and published on the company website.

Companies admitted to the Standard Market segment need to include an explanation if they do not comply with a Corporate Governance Code.

The Joint Stock Corporation Act contains provisions that protect the rights of individual shareholders. All shareholders must, under equal circumstances, be treated equally, unless the affected shareholders have consented to unequal treatment. Furthermore, measures affecting shareholders’ rights, such as capital increases and the exclusion of pre-emption rights, generally require prior approval by a shareholders’ resolution.

A shareholder or a group of shareholders with an aggregate shareholding of at least 10% of the share capital is/are, inter alia, entitled to:

• put a resolution to the shareholders’ meeting that a special auditor should be appointed to investigate any aspect of the company’s establishment or management that took place in the previous two years and, if such a resolution is not passed, to apply to court for appointment of such a special auditor;
• veto the appointment of a special auditor and request the court to appoint another special auditor;
• request the court to revoke the appointment of members of the supervisory board for cause;
• request the adjournment of the shareholders’ meeting if the annual financial statements are found to be incorrect by the shareholders who request the adjournment; and
• request the assertion of damage claims on behalf of the company against members of the management board, members of the supervisory board or certain third parties, if the claim is not obviously unfounded.

A shareholder or a group of shareholders with an aggregate shareholding of at least 5% of the share capital is/are, inter alia, entitled to:

• request the convening of a shareholders’ meeting, or ask the court to convene a shareholders’ meeting, if the management board or the supervisory board does not comply with the request;
• apply for an audit of the annual financial statements during liquidation; and
• contest the validity of a resolution of the shareholders’ meeting if such resolution provides for amortisation, accumulated depreciation, reserves and accruals exceeding the limits set by law or the company’s articles of association.

A shareholder or a group of shareholders with an aggregate shareholding of at least 1% of the share capital of a listed Joint Stock Corporation is/are entitled to submit proposals on the resolutions to be adopted in a shareholders’ meeting and request that the proposals, including the reasoning behind them, are made available on the company’s website.

All issuers are subject to MAR and must disclose inside information as soon as possible. Issuers can delay disclosure to protect their legitimate interests (e.g. if it would jeopardise ongoing negotiations), provided the public is not misled and the information is kept confidential.

In accordance with the Austrian Stock Exchange Act, an issuer whose home member state is Austria must:

• publish its audited annual report and financial statements within 4 months of the end of the financial year and keep them available to the public for a period of ten years;
• publish its half-yearly results at the latest 2 months after the end of the first half of the financial year prepared in accordance with IAS 34, if listed in the Prime Market, otherwise within 3 months of the end of the first half of the financial year and keep such results available to the public for at least ten years.

These reports must be conveyed to the Austrian Financial Market Authority (FMA), the Oesterreichische Kontrollbank AG (OeKB), Austria’s central financial and information service provider, and VSE.

Official Market issuers must prepare consolidated financial statements under IFRS. Furthermore, in the Prime Market segment a financial calendar must be published 2 months before the start of each financial year.

All issuers are subject to MAR, which restricts directors and certain senior employees (Persons discharging managerial responsibilities (PDMRs)) from dealing in the company’s shares during “close periods” prior to the announcement of half-yearly and annual results and at any time when there exists any unpublished price-sensitive information relating to the company (whether or not the PDMR who is proposing to deal knows of the information himself). Any dealings by such persons must be notified to the company, which must in turn announce the details to the market. Companies typically adopt a share dealing code which requires PDMRs and sometimes other employees to seek clearance from the company before dealing in the company's shares.

Any prospectus must be approved by the FMA.

26+/30% Rule (Disclosure when exceeding the protected blocking minority)

Any person that directly or indirectly acquires shares representing more than 26%, but not exceeding 30% of the permanent voting rights in a company must notify the Austrian Takeover Commission (Übernahmekommission) immediately and within 20 trading days at the latest.

30%+ Rule (Obligation to make a takeover bid)

Any person that directly or indirectly acquires shares representing more than 30% of the permanent voting rights in a company must (i) notify the Austrian Takeover Commission immediately and (ii) make a mandatory bid within 20 trading days of obtaining a controlling interest at the latest.

Acting in concert

Voting rights held or attributable to parties acting in concert have to be aggregated with voting rights held or attributable to the person acquiring shares (bidder) and vice versa, under each of the 26+/30% Rule and the 30%+ Rule.

According to the BörseG 2018, the issuer is permitted to file an application for delisting if the shareholders' meeting, with a majority vote that includes at least three quarters of the votes cast, passes the corresponding resolution or if shareholders holding at least three quarters of the share capital with voting rights request such delisting (the fulfilment of this requirement must be confirmed by a notary public).

A voluntary delisting will only be admissible if the legitimate interests of the minority shareholders will be safeguarded. This will be the case if at the date of the delisting application the issuer / shareholder(s) is/are to demonstrate that either a compensation offer pursuant to the Austrian Takeover Act has been launched within the 6 months prior to the application or that the securities continue to be admitted to trading on a regulated market on another stock exchange in the EEA with delisting safeguards equivalent to those provided by the BörseG 2018.

Non-domestic issuers whose home member state is Austria (this may include third country issuers when choosing Austria as their home member state in accordance with the Transparency Directive) are subject to the same obligations as issuers incorporated in Austria.

The Vienna MTF is operated by Wiener Börse AG (Vienna Stock Exchange, VSE) as a Multilateral Trading Facility (MTF) as laid down in Art 4 (1) no 22 of MiFID II. The Vienna MTF is not a regulated market within the meaning of EU law. The Vienna MTF is operated by VSE  and supervised by the Austrian Financial Market Authority (Finanzmarktaufsicht, FMA). The Austrian Stock Exchange Act (Börsegesetz, BörseG) and the Austrian Securities Supervision Act (Wertpapieraufsichtsgesetz 2018 – WAG 2018) apply.

The Vienna MTF is made up of the Direct Market segment, the Direct Market Plus segment and the Global Market segment. Whereas issuers admitted to the Direct Market Plus segment are subject to more stringent rules than issuers admitted to the Direct Market segment, the Global Market segment is intended to attract international shares. Shares or certificates included in the Vienna MTF and listed on another stock exchange may be included in the Global Market segment if either the applicant or a nominated member of the VSE undertakes to act as market-maker.

Issuers of ordinary shares, or certificates that represent shares, can apply for inclusion in the Direct Market Plus segment. Issuers of stocks and other equities (e.g. participation certificates, profit-sharing rights, UCITS shares) not included in the Direct Market Plus segment can be included in the Direct Market segment.

Joint Stock Corporations (Aktiengesellschaft, AG) with ordinary shares, registered or non-voting preferred shares.

Foreign companies can be admitted provided their registration and the by-laws or articles of association comply with their national law.

An information memorandum (which is not a prospectus within the meaning of the Prospectus Regulation) needs to be prepared for submission to the VSE in case of a proposed Vienna MTF listing, unless an approved prospectus within the meaning of the Prospectus Regulation is available (which could then be used for the Vienna MTF listing).

In case of a public offer of securities in Austria (which may occur in connection with a listing on the Vienna MTF or otherwise) it would be mandatory to prepare a prospectus in accordance with and subject to the Prospectus Regulation.

A minimum share capital of €70,000 is required (pursuant to the Austrian Stock Corporation Act).

Generally, a sufficient number of different shareholders is required. In the case of a listing on the Direct Market Plus segment, there need to be at least 20 shareholders.

For admission to the Direct Market Plus segment, the issuer must have existed for at least one year.

An issuer must draw up and publish financial statements either in accordance with IFRS or national accounting principles.

There must be transparent rules and procedures securing fair and orderly trading as well as criteria for the efficient execution of orders.

The information memorandum/prospectus must outline any shareholder interest exceeding 5% of the share capital. If the company is not independent from controlling shareholders, this fact must be disclosed.

These are not required by applicable law or listing rules; but in practice underwriters to the issue generally require contractual lock-ins (more commonly known in Austria as “lock-ups”) – usually for six months for existing financial investors and for up to 18 months for existing major shareholders and management.

In order to be included in the Direct Market Plus segment, the issuer needs assistance from a Capital Market Coach (CMC). The CMC provides consultation and support to the issuer during the application for admission to trading and for one year after admission to the Direct Market Plus segment, in particular, as regards compliance with the admission criteria and ongoing obligations set out in the Direct Market Plus rules.

The core tasks of the CMC comprise:

• ascertaining the basic readiness of an issuer for the capital market and the fitness for inclusion in the Direct Market Plus segment;
• providing consultation to the company in the pre-IPO process;
• support during the admission to trading procedures;
• consultation and support in meeting the required ongoing obligations;
• coaching of the Investor Relations Officer within the scope of his or her capital market activities.

Support by a CMC is not required by issuers listed on an EU-regulated market or traded on a market with rules comparable to the Direct Market Plus rules.

In both the Direct Market and Direct Market Plus segments, a continuous market-maker is mandatory; in auction sales a liquidity provider is recommended.

All information, including marketing communications, addressed to investors or potential investors must be fair, clear and not misleading. Marketing communications must be clearly identifiable as such.

Advertisements must state that a prospectus has been, or will be, published and indicate where investors are, or will be, able to obtain it. The information contained in an advertisement must be accurate and must not be misleading and must be consistent with the information contained in the prospectus.

All information disclosed in an oral or written form concerning the offer of securities to the public or the admission to trading on a regulated market, even when it is not for advertising purposes, must be consistent with the information contained in the prospectus. In the event that material information is disclosed by an issuer or an offeror and addressed to one or more selected investors in oral or written form, such information must, either be disclosed to all other investors to whom the offer is addressed or be included in the prospectus or in a supplement to the prospectus.

Admission to the Direct Market or the Direct Market Plus segments normally takes two weeks from the application to VSE. Preparation of an information memorandum or a prospectus may take one to three months.

MAR rules can have an effect on certain operations as may be customary in a secondary offerings context: For example, the sale of a substantial portion of shares might have a significant effect on the prices and thus trigger an obligation to disclose inside information. There may also be contractual arrangements, such as pre-emption rights of certain other shareholders which need to be observed.

No specific rules apply to foreign issuers.

Information Memorandum:

1. German or English;
2. passporting is not available for an Information Memorandum.

Prospectus (if required):

1. German or English;
2. the summary does not need to be translated into German if the prospectus (including the summary) is in English.

Financial Market Authority (Finanzmarktaufsicht - FMA): http://www.fma.gv.at

Vienna Stock Exchange (Wiener Börse): http://www.wienerborse.at

Vienna MTF

Under Austrian law various matters are subject to shareholder approval, including a change to the articles of association, the appointment of the members of the supervisory board (Aufsichtsrat), the allocation of profits, and the appointment of the annual auditor.

Additionally, Austrian mandatory law stipulates that the following measures, inter alia, require the approval of a majority of at least 75% (which may not be reduced by provisions in the articles of association) of the share capital present at the shareholders’ meeting:

• a change of the company’s business purpose;
• an increase in share capital;
• the disapplication of shareholders’ pre-emption rights in relation to issues of new shares;
• the approval of authorised or conditional capital;
• a decrease of the share capital;
• an issue of convertible bonds, participating bonds, and participation rights;
• the dissolution of the company, or the continuation of the company if the company has already been dissolved;
• the transformation of the company into a limited liability company (Gesellschaft mit beschränkter Haftung);
• the approval of a merger or demerger;
• the transfer of all the assets of the company; and
• the approval of profit pools or agreements on the operation of the business.

Approval of a majority of 90% of the entire share capital is required for an upstream merger pursuant to the Austrian Transformation Act (Umwandlungsgesetz), with certain exceptions, for a spin-off disproportionate to shareholdings pursuant to the Austrian Spin-Off Act (Spaltungsgesetz) or for a squeeze-out pursuant to the Austrian Act on the Squeeze-out of Minority Shareholders (Gesellschafter-Ausschlussgesetz.

There is no requirement for an issuer listed on the Vienna MTF to submit to a Corporate Governance Code.

The Joint Stock Corporation Act contains provisions that protect the rights of individual shareholders. In particular, all shareholders must, under equal circumstances, be treated equally, unless the affected shareholders have consented to unequal treatment. Furthermore, measures affecting shareholders’ rights, such as capital increases and the exclusion of pre-emption rights, generally require prior approval by a shareholders’ resolution.

A shareholder or a group of shareholders with an aggregate shareholding of at least 10% of the share capital is/are, inter alia, entitled to:

• put a resolution to the shareholders’ meeting that a special auditor should be appointed to investigate any aspect of the company’s establishment or management that took place in the previous two years and, if such a resolution is not passed, to apply to the court for appointment of such a special auditor;
• veto the appointment of a special auditor and request the court to appoint another special auditor;
• request the court to revoke the appointment of members of the supervisory board for cause;
• request the adjournment of the shareholders’ meeting if the annual financial statements are found to be incorrect by the shareholders who request the adjournment; and
• request the assertion of damage claims on behalf of the company against members of the management board, members of the supervisory board or certain third parties, if the claim is not obviously unfounded.

A shareholder or a group of shareholders with an aggregate shareholding of at least 5% of the share capital is/are, inter alia, entitled to:

• request the convening of a shareholders’ meeting, or ask the court to convene a shareholders’ meeting, if the management board or the supervisory board does not comply with the request;
• apply for an audit of the annual financial statements during liquidation; and
• contest the validity of a resolution of the shareholders’ meeting, if such resolution provides for amortisation, accumulated depreciation, reserves and accruals exceeding the limits set by law or the company’s articles of association.

A shareholder or a group of shareholders with an aggregate shareholding of at least 1% of the share capital of a listed Joint Stock Corporation is/are entitled to submit proposals on the resolutions to be adopted in a shareholders’ meeting and request that the proposals, including the reasoning behind them, are made available on the company’s website.

All issuers are subject to MAR and must disclose inside information as soon as possible. Issuers can delay disclosure to protect their legitimate interests (e.g. if it would jeopardise ongoing negotiations), provided the public is not misled and the information is kept confidential.

In the Direct Market Plus segment there is a requirement to publish audited annual financial statements, including the management report, at the latest 5 months after the end of the reporting period and an interim/half-year report at the latest 3 months after the end of the reporting period. Furthermore, a financial calendar must be published 2 months before the start of the relevant financial year.

All issuers are subject to MAR, which restricts directors and certain senior employees (Persons discharging managerial responsibilities (PDMRs)) from dealing in the company’s shares during “close periods” prior to the announcement of half-yearly and annual results and at any time when there exists any unpublished price-sensitive information relating to the company (whether or not the director who is proposing to deal knows of the information himself). Any dealings by such persons must be notified to the company, which must in turn announce the details to the market. Companies typically adopt a share dealing code which requires PDMRs and sometimes other employees to seek clearance from the company before dealing in the company's shares.

Any prospectus within the meaning of the Prospectus Regulation must be approved by the FMA.

Not applicable.

De-Listing may occur upon application from the issuer and approval by the Vienna Stock Exchange operating the Vienna MTF.  No specific requirements apply.

No specific rules apply to foreign issuers.