Under the 2005 Act on Trading in Financial Instruments, each public offer effected on the territory of Poland must be intermediated by an investment firm (a local one or a foreign one properly passported into Poland under the MiFID). However, the ATFI exempts from this requirement employee programs qualifying under the local equivalent of Art. 4.1(e) of the Prospectus Directive.
In particular, the relevant exemptions include the following “public offers” (i.e., here, directed to 150 or more employee-investors or to “unspecified employee-addressees”):
(i) a local public offer of securities of an issuer with its head office or registered office in the territory of an EU/EEA member state directed by such issuer or its affiliated entity to current or one-time managers or employees of the issuer or the affiliate; and
(ii) a local public offer of securities of an issuer registered in a state not being an EU/EEA member state whose securities are admitted to trading on a regulated market or in another system of trading in the territory of such state, in relation to which the EU Commission has adopted an equivalence decision, directed by such issuer or its affiliated entity to current or one-time managers or employees of the issuer or the affiliate.
The problem is triggered by the fact that the European Commission has not adopted pertinent equivalence decisions in relation to the systems of trading operated in non-EU member states. Therefore, an issuer from such countries like the U.S. and Switzerland will have to contract an investment firm to launch the local employee share offer (if its securities are not admitted to trading on any of the EU regulated markets).