Employee Share Plans in Europe and the USA - Sorainen

More documents

Recommendations

Info

Employee Share Plans in Europe and the USAThe NetherlandsThe Netherlands1. Securities law1.1 Offer of securities: 1 The Prospectus Directive is implemented into Dutch lawand therefore in general the principles referred to in paragraph 2 on pages 1-3 ofthis guide will apply. 21.2 Regulatory issues: 3 There are no other significant regulatory issues whichaffect an offer of securities to employees. A company which issues securitiesdirectly to employees in the Netherlands does not need a licence as aninvestment firm or securities intermediary. However, if a company uses anotherentity (e.g. a securities broker) in connection with the issue of the securities, thatother entity would require a licence as an investment firm unless an exemptionapplied. 4Entities which take deposits (repayable monies) from the Dutch public should inprinciple be authorised under the Financial Markets Supervision Act andregistered with the Dutch Central Bank, unless an exemption applies. One of theexemptions applies where deposits are obtained or solicited from within a closedcircle, as defined in Dutch law (besloten kring). The definition of a closed circleincludes, amongst other things, the relationship between an employer and itsemployees or the relationship between group companies. However, theauthorisation requirement for deposit-takers may be relevant in participation12The Netherlands' securities market is regulated by the Financial Markets Supervision Act (Wet op hetfinancieel toezicht) (FMSA). The rules applicable to offers of securities are set out in Chapter 5.1 of theFMSA.From 1 July 2005, when the Prospectus Directive was implemented in Dutch law, any public offer ofsecurities in the meaning of the Prospectus Directive should be done in accordance with suchDirective. As for the specific exemption for employee offerings under section 4 of the ProspectusDirective, the Dutch legislator has indicated that the securities offered to the employees should actuallybe of the same category or class as the securities that are traded on a regulated market within theEEA.34With respect to the Netherlands restrictions concerning insider trading, there is a specific exemption foremployee participation plans. This exemption, which requires certain conditions to be met, may permitan offer of any securities to an employee, or an employee to exercise an option and/or sell the sharesacquired under an employee participation scheme while that employee or the employer is inpossession of inside information.Note that there is an employee participation plan exemption from the requirement to have a licence.Furthermore, if a collective investment vehicle is used, such vehicle may require a licence under theFMSA. Several exemptions from such licence requirement are available, e.g. if the vehicle offers itsunits to less than 100 persons per state or if the vehicle offers its units exclusively to itsdirectors/employees and/or a group company's directors/employees.UK/1729295/03 137 September 2010
Employee Share Plans in Europe and the USAThe Netherlandsplans where employees save monies through an account held with a third partybank.1.3 Disclosure: In principle, ongoing disclosure and filing requirements other thanthose resulting from the Prospectus Directive and the Market Abuse Directive donot apply if and to the extent securities are offered to employees and/or directorsin the Netherlands, in accordance with the Prospectus Directive and the DutchFinancial Markets Supervision Act.2. Exchange controlsDutch foreign exchange control rules do not apply specifically to employee shareplans and are unlikely to apply in practice to dealings in connection with anemployee share plan. 53. Financial assistance3.1 Dutch company: A Dutch company (NV or BV) may not provide financialassistance to enable third parties to purchase or to subscribe for shares in itscapital, subject to the following exemptions.• The restrictions do not apply to an NV if the shares are acquired by, or onbehalf of, employees of the NV or its group companies. If that is the case, theNV may also lend money to enable the employees to acquire the shares. 6• A BV may lend money to enable a third party (including an employee) topurchase or subscribe for shares in its capital, but only to the extent that it hasdistributable reserves and provided that (i) its articles of association allowsuch a loan to be made; and (ii) the company maintains a non-distributablereserve for the amount outstanding on such a loan from time to time. (Note56Foreign exchange rules are generally applicable to persons or entities which have been designated bythe Dutch Central Bank as a so-called "reporting entity" under the External Financial Relations Act(Wet financiële betrekkingen buitenland).Furthermore, there is a general exemption from the financial assistance prohibition if such financialassistance consists of providing a loan and provided certain conditions are met. These conditionsinclude, amongst others, that (i) the provisions of the loan must be based on a resolution of the boardof directors (ii) the company's general meeting of shareholders must approve such board resolution (inthe case of a listed NV with a 95% majority of the votes cast at the meeting, in the case of a non-listedNV with a simple majority except where less than 50% of the issued capital is represented at themeeting in which case a two-third majority applies) (iii) the company must maintain a non-distributablereserve for the amount outstanding on such a loan from time to time and (iv) the loan, the interest rateand any security or collateral must be agreed on reasonable market conditions. A separate exemptionfrom the financial assistance prohibition is available for authorised banks that act in the ordinary courseof business.UK/1729295/03 138 September 2010
Page 1 and 2:
Employee Share Plansin Europe and t
Page 3 and 4:
Employee Share Plans in Europe and
Page 5 and 6:
Page 7 and 8:
Page 9 and 10:
Page 11 and 12:
Page 13 and 14:
Page 15 and 16:
Page 17 and 18:
Page 19:
Page 22 and 23:
Page 24 and 25:
Page 26 and 27:
Page 28 and 29:
Page 30 and 31:
Page 32 and 33:
Page 34 and 35:
Page 36 and 37:
Page 39 and 40:
Page 41 and 42:
Page 43 and 44:
Page 45 and 46:
Page 47 and 48:
Page 49 and 50:
Page 51 and 52:
Page 53 and 54:
Page 55 and 56:
Page 57 and 58:
Page 59 and 60:
Page 61 and 62:
Page 63 and 64:
Page 65 and 66:
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
Page 73 and 74:
Page 75 and 76:
Page 77 and 78:
Page 79 and 80:
Page 81 and 82:
Page 83 and 84:
Page 85 and 86:
Page 87 and 88:
Page 89 and 90:
Page 91 and 92:
Page 93 and 94: Employee Share Plans in Europe and
Page 143: Employee Share Plans in Europe and
Page 195 and 196:
Page 197 and 198:
Page 199 and 200:
Page 201 and 202:
Page 203 and 204:
Page 205 and 206:
Page 207 and 208:
Page 209 and 210:
Page 211 and 212:
Page 213 and 214:
Page 215 and 216:
Page 217 and 218:
Page 219 and 220:
Page 221 and 222:
Page 223 and 224:
Page 225 and 226:
show all

Employee Share Plans in Europe and the USA - Sorainen

Create successful ePaper yourself

Delete template?

Save as template?