Governing Laws
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 Financial Supervision Act (Wet op het financieel toezicht) (the “WFT”). These are summarised below.
Pursuant to section 5:60 of the WFT, 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 WFT 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 a 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 2007 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 section 5:59 paragraph 7 of the WFT, 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 certain 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.
Periodic Disclosure Obligations
Pursuant to the Directive 2004/109/EC on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market (the “Transparency Directive”), EADS is required to disclose certain periodic and ongoing information (the “Regulated Information”). The expiry date for the implementation of the Transparency Directive by the Member States of the European Community was 20th January 2007.
Pursuant to the Transparency Directive, EADS must disseminate Regulated Information throughout the European Community in a manner ensuring fast access to such information on a non-discriminatory basis. For this purpose, EADS may use a professional service provider (wire). In addition, Regulated Information must be filed at the same time with the relevant competent market authority. EADS shall then ensure that Regulated Information remains publicly available for at least five years.
Finally, Regulated Information must be made available for central storage by a mechanism that is to be officially designated by the issuer’s home member state.
Dutch Regulations
For the purpose of the Transparency Directive, supervision of EADS is effected by the member state in which it maintains its registered office, which is the Netherlands. In addition, the competent market authority that shall assume final responsibility for supervising compliance by EADS shall be the competent market authority designated in the Netherlands, the AFM.
As of the date of this document, the Netherlands has implemented provisions in respect of the requirements on notification of the acquisition of disposal on major holdings and major proportions of voting rights held by shareholders (See “Disclosure of Holdings”), but not in relation to other disclosure requirements.
Once the Transparency Directive is fully implemented in the Netherlands, EADS will be subject to a number of periodic disclosure requirements, such as:
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publishing a financial report, together with an audit report drawn up by an external accountant, ultimately four months after the end of each financial year;
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publishing a semi-annual financial report covering the first six months of the financial year ultimately two months after the end of the first six months of the financial year; and
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publishing quarterly financial information.
In addition to the requirements of the Transparency Directive, pursuant to section 5:15 of the WFT, 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 supplemented with 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 section 5:24 of the WFT 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
Since the Transparency Directive has been implemented in France on 20th January 2007, EADS is no longer obliged to comply with certain disclosure obligations pursuant to the general regulations of the Autorité des marchés financiers (the “AMF”).
In line with the requirement set forth in the Transparency Directive to disseminate Regulated Information throughout the European Community, EADS is required to provide simultaneously in France the same information as that provided abroad.
German Regulations
Since the Transparency Directive has been implemented in Germany on 20th January 2007, EADS is no longer obliged to comply with certain German law disclosure obligations according to the German Stock Exchange Act (Börsengesetz) and the German Stock Exchange Admissions Regulation (Börsenzulassungs-Verordnung).
Due to the listing of the Company's shares in the amtlicher Markt (specifically, in the sub-segment of the amtlicher Markt, the 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.
According to sections 62 and 63 of the Exchange Rules (Börsenordnung) of the Frankfurt Stock Exchange, the listing in the Prime Standard of the amtlicher Markt results in the obligation of the Company to publish consolidated annual accounts as well as quarterly reports.
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. 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 section 69 of the German Stock Exchange Admissions Regulation.
Spanish Regulations
As of the date of this document, the Transparency Directive has not been implemented in Spain yet. Therefore, pending the implementation of the Transparency Directive in Spain, EADS remains subject to the following regulations as set out below.
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 was 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 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.
Ongoing Disclosure Obligations
Pursuant to the Transparency Directive, Regulated Information includes in particular inside information as defined pursuant to article 6 of Directive EC/2003/6 on insider dealing and market manipulation (the “Market Abuse Directive”). Such information must be disseminated throughout the European Community (see introduction to section “Periodic Disclosure Obligations”)
Inside information shall mean information of a precise nature which has not been made public, relating, directly or indirectly, to one or more issuers of financial instruments or to one or more financial instruments and which, if it were made public, would be likely to have a significant effect on the prices of those financial instruments or on the price of related derivative financial instruments.
Inside information must be disclosed to the markets as soon as possible. However, an issuer may under his own responsibility delay the public disclosure of inside information such as not to prejudice his legitimate interests provided that such omission would not be likely to mislead the public and provided that the issuer is able to ensure the confidentiality of that information.
Dutch Regulations
Upon implementation of the Transparency Directive into Dutch law, EADS will disclose and disseminate throughout the European Community any inside information pursuant to the requirements that shall be set out under such law, which has not been yet defined in the Netherlands.
French Regulations
Upon implementation of the Transparency Directive into the general regulations of the AMF (the “AMF General Regulations”) on 20th January 2007, the French requirements to publish inside information in France according to Article 223-1 and following of the AMF General Regulations no longer apply to EADS.
However, any inside information as defined above will be disclosed in France beyond the means of dissemination throughout the European Community, as it will be organised under Dutch law implementing the Transparency Directive so as to provide simultaneously in France equivalent information as that provided abroad.
German Regulations
Upon implementation of the Transparency Directive into German law on 20th January 2007, the German requirements to publish inside information according to Section 15 of the Securities Trading Act (Wertpapierhandelsgesetz) no longer apply to EADS.
However, any inside information as defined above will be disclosed in Germany beyond the means of dissemination throughout the European Community, as it will be organised under Dutch law implementing the Transparency Directive so as to provide simultaneously in Germany equivalent information as that provided abroad.
Spanish Regulations
The following provisions apply to the Company but may be affected once the Transparency Directive is fully implemented in Spain.
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 1333/2005 of 11th November 2005 (the “MAD Royal Decree”) the Company must try to ensure that the relevant information is disclosed simultaneously to all type of investors in the member states of the European Union where it is listed.
Pursuant to the Spanish Securities Act and the “Ministerial Order” and Circular 1/2004 of 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 any shareholders’ agreement which relate to the exercise of voting rights at shareholders’ meetings or restrictions or conditions on the free transferability of shares or convertible bonds, to (a) provided the Company is a party to the shareholders’ agreement, file 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.
