Governing Law — Dutch Regulations
The Company is governed by the laws of the Netherlands, in particular by Book 2 of the Dutch Civil Code and by its Articles of Association (the “Articles of Association”). The shares of the Company have been admitted for trading at the Traded but Not Listed Segment of Euronext Amsterdam.
The Company is subject to various legal provisions of the Dutch Securities Market Supervision Act 1995 (Wet toezicht effectenverkeer 1995) (the “WTE”). These are summarised below.
Pursuant to section 47a of the WTE, certain persons discharging managerial responsibilities within the Company and, where applicable, persons closely associated with them (together “Insiders”, as defined below) must notify the Netherlands Authority for the Financial Markets (Autoriteit Financiële Markten (the “AFM”)) of all transactions conducted on their own account relating to shares of the Company, or to derivatives or other financial instruments linked to them. In principle, failure to comply with the requirements of the WTE is a criminal offence punishable by criminal and administrative penalties in the Netherlands.
In particular, “Insiders” include (i) members of the Board of Directors and the Executive Committee of the Company, (ii) certain senior executives, (iii) persons closely associated with any person mentioned under categories (i) and (ii) (including their spouses, dependent children and other relatives who have shared the same household), and (iv) legal entities, trusts or partnerships whose managerial responsibilities are discharged by any person referred to in point (i), (ii) or (iii) or which are directly or indirectly controlled by such a person, or that have been set up for the benefit of such a person, or whose economic interests are substantially equivalent to those of such person.
Pursuant to Dutch law, EADS has adopted specific internal insider trading rules (the “Insider Trading Rules”), in order to ensure the confidentiality of sensitive company information, the transparency of EADS share trading and the compliance of EADS share trading rules with share trading regulations applicable in the Netherlands, France, Germany and Spain (for examples of Dutch, German, Spanish and French disclosure requirements applicable to members of the Board of Directors and the Executive Committee, see “Disclosure of Holdings-Disclosure Requirements for Members of the Board of Directors and of the Executive Committee”). Pursuant to the Insider Trading Rules, (i) all employees and directors are prohibited from conducting transactions in EADS shares or stock options if they have inside information, and (ii) certain persons are only allowed to trade in EADS shares or stock options within very limited periods and have specific information obligations to the compliance officer of the Company and the competent financial market authorities with respect to certain transactions. The updated version of the Insider Trading Rules effective 1st January 2006 is available on the Company’s website.
Hans Peter Ring, Chief Operating Officer for Finance of EADS, was appointed Compliance Officer by the Board of Directors of EADS. The Compliance Officer is essentially responsible for the implementation of the Insider Trading Rules and for reporting to the AFM.
Pursuant to Article 47 paragraph 7 of the WTE, the Company has to maintain a list with all persons working for it by virtue of a labour relationship or otherwise, who may have access to inside information. Equivalent requirements exist under French, German and Spanish law.
In addition, given the fact that its shares are admitted for trading on a regulated market in France, Germany and Spain, the Company is subject to laws and regulations in these three jurisdictions. A summary of the main regulations applicable to the Company in relation to information to be made public in these three jurisdictions is set out below.
Ongoing Disclosure Obligations
Dutch Regulations
Pursuant to Article 1k of the Securities Markets Supervision Decree (Besluit toezicht effectenverkeer) (the “Decree”), resulting from the implementation of the EC Directive 2003/71 dated 4th November 2003, the Company may prepare a registration document, the purpose of which is to provide legal and financial information on the Company (shareholding, activities, management, recent events, possible evolution and other financial information). In practice, the registration document of the Company may be used as a prospectus provided it is completed by a securities note and a summary approved by the AFM. Such registration document is filed for approval with the AFM and, once approved, is made available to the public.
Additionally, and pursuant to Article 6a of the Decree also resulting from the implementation of the EC Directive 2003/71, the Company is required to provide at least annually a list of certain corporate and financial documents or other information that it has published or made available to the public over the last 12 months and details of where these documents can be obtained (see “Annual Securities Disclosure Report”).
French Regulations
The Autorité des marchés financiers (the “AMF”) issued general regulations effective as from 24th November 2004 (the “AMF General Regulations”).
A foreign issuer must take all necessary measures to enable shareholders to manage their investments, and to exercise their rights. Pursuant to Articles 212−37 and 222−9 of the AMF General Regulations:
(i) the Company is required to inform its shareholders of (a) all forthcoming shareholders’ meetings and of the various ways for them to exercise their voting rights; (b) payments of dividends; and (c) issues of new shares or subscriptions, allocations, renunciations, or conversions of shares;
(ii) the Company is also required to (a) inform the public of any modifications in its shareholder structure compared to the latest published data; (b) publish any relevant information concerning its activities and results for the first half of its financial year within four months of the end of the first half of the financial year, (c) publish its annual accounts, and consolidated accounts and the management report, which report (or the most significant extracts thereof) must be translated into French, within six months of the end of the financial year; and (d) publish as soon as possible all modifications of the rights attached to each category of shares;
(iii) the Company is required to inform the AMF in due time of any contemplated amendments of its Articles of Association; and
iv) furthermore, the Company is required to provide simultaneously in France the same information as that given abroad.
German Regulations
Due to the listing of the Company’s shares in the amtlicher Markt (specifically, in the sub-segment of the amtlicher Markt, Prime Standard) on the Frankfurt Stock Exchange, the Company is subject to the post-listing obligations described below. In addition, the Company is included in the selection index MDAX, the MidCap index of Deutsche Börse AG.
Pursuant to paragraph 65 of the German Stock Exchange Admissions Regulation (Börsenzulassungs-Verordnung), the Company is required to promptly make available its statement of annual accounts and its management report as soon as these have been produced, insofar as these are not published nationally. If the Company produces its own statement of annual accounts in addition to a consolidated one, both types must be made available. According to paragraph 62 of the Exchange Rules (Börsenordnung) of the Frankfurt Stock Exchange, the listing in the Prime Standard of the amtlicher Markt results in the further obligation of the Company to compile and publish consolidated annual accounts in accordance with the International Financial Reporting Standards (“IFRS”) or the U.S.-Generally Accepted Accounting Principles (“U.S. GAAP”) in the German and English languages.
In addition, the Company is required to publish an interim report pursuant to paragraph 40 of the German Stock Exchange Act (Börsengesetz). The interim report must be published within a period of two months after the end of the first six-month period of the Company’s current fiscal year, in at least one German supra-regional mandatory stock exchange newspaper (überregionales Börsenpflichblatt), the Federal Gazette (Bundesanzeiger) or as a printed newsletter that is available to the public free of charge upon request. The report must also be given to the stock exchange admissions authorities of those exchanges where the shares are officially listed.
Pursuant to paragraph 63 of the Exchange Rules of the Frankfurt Stock Exchange, the Company, being part of the amtlicher Markt (Prime Standard), is required to publish quarterly reports in the German and English language according to the same international accounting principles as the annual accounts.
Pursuant to paragraph 63 et seq. of the German Stock Exchange Admissions Regulation, the Company is required to inform the public and the stock exchange admissions authorities of certain developments or changes that affect the Company or its shares.
The Company is also obliged to inform the stock exchange admissions authorities about all material events arising from or affecting its legal situation. For that reason, all announcements concerning events that may be of interest to shareholders, such as the shareholders’ meeting, announcements concerning determinations and payments of dividends, the issuance of new shares and the exercise of conversion, warrant and subscription rights, must be published in an official stock exchange newsletter. The Company is, furthermore, required to publish without delay all changes concerning rights that are connected with securities.
If the Company provides information to the stock exchanges in France and Spain and if such information could be relevant for the assessment of securities of the Company, then the Company has to publish at least equivalent information at the Frankfurt Stock Exchange in at least one German supra-regional mandatory stock exchange newspaper.
In addition, the Company is required as a result of its listing in the amtlicher Markt (Prime Standard), to prepare a continuous update of a corporate action timetable at the beginning of each fiscal year, for at least the respective fiscal year, in the German and English languages. This timetable must include details about the most important events of the Company. The Company is also required to hold a meeting of analysts at least once a year in addition to the press conference regarding the balance sheet.
Save for certain exemptions, the Company has to apply for admission of shares issued at a later date to the amtlicher Markt of the Frankfurt Stock Exchange, see paragraph 69 of the German Stock Exchange Admissions Regulation.
Spanish Regulations
Pursuant to the Ministerial Order of 18th January 1991, the Company is required to file with the Comisión Nacional del Mercado de Valores (the “CNMV”) and with the relevant Spanish stock exchange authorities (who will disclose it to the market), relevant information regarding its financial situation for each half year and which is communicated, for each 30th June and 31st December, no later than the following 1st September and 1st March respectively. If after this communication the annual accounts are produced by the Board of Directors and they do not conform with the half-yearly information for 31st December, the Board of Directors must disclose this inconsistency in the following ten trading days. An exemption from the obligation to publish quarterly information of a financial or economic nature has been obtained from the CNMV.
According to Article 35 of the Spanish Securities Market Act 24/1988, of 28th July 1988, as amended (the “Spanish Securities Act”) and Order EHA/3050/2004 of 15th September, the Company must provide detailed information, including, without limitation, the number and amount of the transactions, in relation to every transaction carried out with any related party in the half-yearly information which the Company is required to file with the Comisión Nacional del Mercado de Valores (the “CNMV”) and the Spanish Stock Exchanges, without prejudice to information to be included in the annual
corporate governance report to be filed with the CNMV on an annual basis (the “Annual Corporate Governance report” pursuant to the Ministry of Economy Order 3722/2003 dated 26th December 2003 (the “Ministerial Order”)).
Pursuant to the Spanish Securities Act, the Company has to provide detailed information about transactions carried out with (i) directors which are outside the ordinary activity of the Company or which are not in market conditions; and (ii) any related party transaction which are material due to their amount or for an adequate understanding of the public economic information.
EADS discloses such information in its Registration Document.
Disclosure of Specific Information
French Regulations
Pursuant to Article 222−3 I of the AMF General Regulations, any inside information must be disclosed to the public. Pursuant to Article 621−1 of the AMF General Regulations, inside information means precise information that has not been publicly disclosed and that concerns, directly or indirectly, one or more issuers or financial instruments, and that, if publicly disclosed, would be susceptible to having a noticeable influence on the price of the financial instruments themselves or on the price of financial instruments linked therewith.
Pursuant to Article 222−11 of the AMF General Regulations, the AMF may request that the Company or any third party disclose any information relevant in respect of the investors’ protection and of the functioning of the market. If such requests are not satisfied, the AMF may itself disclose such information.
Pursuant to Articles 222−3 to 222−7 of the AMF General Regulations, the party responsible for the disclosure of inside information may decide, under its own responsibility, to defer its disclosure if (i) it is able to ensure confidentiality of such information; and (ii) it considers that (a) should the party be the Company, confidentiality is necessary to preserve its legitimate interests, provided that such deferral does not run the risk of misleading the public and that the Company monitors access to such information; or (b) should the party be the Company or a third party, confidentiality is temporarily necessary to achieve completion of a transaction.
German Regulations
Pursuant to paragraph 15 of the German Securities Trading Act (Wertpapierhandelsgesetz), the Company is required to publish, without undue delay, any inside information which directly concerns the Company, in particular but not limited to information within the Company’s sphere of activity, and which has the potential to materially influence the Company’s share price (ad hoc disclosure requirement).
Prior to publication, the Company must disclose such information to the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht) as well as to the board of directors of the organised markets on which the Company’s shares are admitted to trading.
Due to the listing in amtlicher Markt (Prime Standard), the Company is also required to publish this information in the English language (paragraph 66 of the Exchange Rules (Börsenordnung) of the Frankfurt Stock Exchange).
In accordance with the implementation into German law of the EC Directive 2003/6/EC dated 28th January 2003 on insider dealing and market manipulation (Market Abuse Directive), the Company is obliged to decide whether it is exempt from the ad hoc disclosure requirement in cases where its legitimate interests would require a postponement of the disclosure.
The Company and any person acting for or on behalf of the Company are also subject to the ad hoc disclosure requirement if they have communicated inside information to another person or allowed another person access to inside information, unless that other person is subject to a legal duty of confidentiality.
Pursuant to paragraph 15b of the German Securities Trading Act the Company must establish and maintain a list with all persons who have access to inside information.
Spanish Regulations
Pursuant to Article 82 of the Spanish Securities Act, the Company is required to make public, as soon as possible, any fact or decision that may substantially affect the quotation of its shares. Any such relevant event must be notified to the CNMV as quickly and as efficiently as possible, always prior to its communication to third parties or other means of publication and, in any event, as soon as the relevant fact is known, the relevant decision has been made or, the relevant agreement has been executed, as the case may be. Wherever possible, the relevant event should be notified to the CNMV after the close of the markets on the day of notification so as to avoid impacting on the quotation of the Company’s shares in the corresponding trading session. Furthermore, pursuant to Article 117 of the Spanish Securities Act, the Company must post details of any relevant event on its website. Under certain circumstances, the CNMV may authorize the issuer not to make public relevant information, which may affect its legitimate interests.
Pursuant to the Royal Decree 1333/2004, of 11th November 2004 (the “MAD Royal Decree”) the Company must try to ensure that the relevant information is disclosed simultaneously to all type of investors in the European Union Member States where it is listed.
Pursuant to the Spanish Securities Act and the Order 3722/2003 of 26th December 2003 of the Ministry of Economy (the “Ministerial Order”) and Circular 1/2004 of the 17th March 2004 of the CNMV (the “Circular”), the Company is required:
(i) To have rules of the Board of Directors which must be filed with the CNMV and published on the Company’s website;
(ii) To file with the CNMV a description of the relevant Dutch law provisions and provisions in the Articles of Association governing the conduct of shareholders’ meetings and post such description on its website;
(iii) To have a website which must contain as a minimum the information specified in the Ministerial Order and the Circular;
(iv) To file a corporate governance report with the CNMV on an annual basis (the “Annual
Corporate Governance Report”) which must contain the information specified in the Ministerial Order and the Circular; and
(v) In respect of the provisions of the Participation Agreement which relate to the exercise of voting rights at shareholders’ meetings or restrictions or conditions on the free transferability of shares, to (a) file by July 2006 (or earlier in the case of a takeover bid or if a new agreement is entered into) such provisions with the CNMV who will then publish the provisions as a relevant event, (b) post the provisions on the Company’s website, unless the CNMV exempts the Company from doing so, and (c) set out details of the provisions in the Annual Corporate Governance Report.
