Employee Share Plans in Europe and the USA - Sorainen

Employee Share Plans in Europe and the USAPolandPoland1. Securities law1.1 Offer of securities 1 : In accordance with the Prospectus Directive, the Polishlegislation provides an exemption from the obligation to prepare, to obtainapproval for, and to publish a prospectus in respect of an offer of securities toexisting or former directors or employees by their employer (or an affiliatedundertaking) which has its securities already admitted to trading on an EUregulated market. 2 3 Under this exemption, Polish legislation requires thepreparation of an information memorandum, which must be in Polish. 4 5There is also an exemption for offers where the total consideration under theoffer is less than €2.5 million (calculated over a period of 12 months). In the12345The Prospectus Directive was implemented into Polish law in October 2005.The Polish legislation contains a reference to accounting provisions in relation to the definition of anaffiliate undertaking. The definition contained in the accounting provisions is very broad, but will requirea detailed check each time an affiliate undertaking is proposing to offer securities to employees ordirectors in Poland.The view of the Polish Financial Supervisory Authority ("PFSA"') is that the offer of non-transferableoptions and the exercise of such options should be assessed as part of a single financial operation. Inaccordance with this view, when an offer of non-transferable share options is launched, there is asimultaneous announcement of an offering (the execution of which will be deferred) of the shareswhich the person will be entitled to acquire when the options are exercised. Therefore, the obligationto prepare an information memorandum applies (see footnote 4 below). Otherwise a prospectusshould be submitted for approval by the competent authority.In October 2005 the Minister of Finance published an ordinance specifying the requirements to besatisfied by the information memorandum, which should reflect some of the requirements set out for aprospectus in the Commission Regulation (EC) 809/2004. In particular, an information memorandumshould include the issuer's identification data (and indicate where additional information on the issuerand its corporate documents may be found), key details regarding the legal nature of the offeredsecurities, the date and place of the preparation of the information memorandum and the terms anddate of issue of the offered securities. The information memorandum does not need to be approved bythe PFSA.There is also a corresponding exemption concerning admission to trading on a regulated market,provided that shares of the same type as ones having been recently offered within the framework of anoffer to existing or former directors or employees, are already admitted to trading on the sameregulated market as that intended for the shares offered. If this is not the case and the issuer intendsto introduce its shares to trading on a regulated market, it may rely on another exemption which appliesif the offer consists of shares representing, over a period of 12 consecutive months, less than 10% ofthe issuer's shares of the same type admitted to trading on the same regulated market.UK/1729295/03 145 September 2010