Headnote National Policy 11-203 Process For Exemptive Relief Applications in Multiple Jurisdictions– Application for relief from the prospectus and registration requirements for certain trades made in connection with an employee share offering by a French issuer – The issuer cannot rely on the employee exemption in section 2.24 of National Instrument 45-106 Prospectus and Registration Exemptions as the securities are not being offered to Canadian employees directly by the issuer but rather through special purpose entities – Canadian participants will receive disclosure documents – The special purpose entities are subject to the supervision of the local securities regulator – Canadian participants will not be induced to participate in the offering by expectation of employment or continued employment – There is no market for the securities of the issuer in Canada – The number of Canadian participants and their share ownership are de minimis – Relief granted, subject to conditions. Applicable Legislative Provisions Sections 25, 53 and 74 of the Securities Act (Ontario) National Instrument 45-106 Prospectus and Registration Exemptions National Instrument 31-103 Registration Requirements and Exemptions
DATE: March 25, 2011
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the “Jurisdiction”)
AND
IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF COMPAGNIE DE SAINT-GOBAIN (the “Filer”)
Background
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction (the “Legislation”) for:
- an exemption from the prospectus requirements of the Legislation (the “Prospectus Relief”) so that such requirements do not apply to
(a) trades in
(i) units (the “Principal Classic Compartment Units”) of a compartment named Saint-Gobain Avenir Monde (the “Principal Classic Compartment”) of an FCPE named Saint-Gobain PEG Monde which is a fonds commun de placement d’entreprise or “FCPE,” a form of collective shareholding vehicle of a type commonly used in France for the conservation of shares held by employee-investors; and
(ii) units (together with the Principal Classic Compartment Units, each and collectively, “Units”) a temporary FCPE named Saint-Gobain Relais Adhésion 2010 Monde (the “Temporary Classic FCPE”) which will merge with the Principal Classic Compartment following the Employee Share Offering (as defined below) as further described in paragraph 10 of the Representations (the term “Classic Compartment” used herein means, prior to the Merger, the Temporary Classic FCPE, and following the Merger, the Principal Classic Compartment);
made pursuant to the Employee Share Offering to or with Qualifying Employees (as defined below) resident in the Jurisdiction and in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick and Nova Scotia (collectively, the “Canadian Employees,” and the Canadian Employees who subscribe for Units, the “Canadian Participants”);
(b) trades of ordinary shares of the Filer (the “Shares”) by the Classic Compartment to or with Canadian Participants upon the redemption of Units thereof as requested by Canadian Participants;
- an exemption from the dealer registration requirements of the Legislation (the “Registration Relief”) so that such requirements do not apply to the Saint-Gobain Group (as defined below and which, for clarity, includes the Filer and the Canadian Affiliates), the Temporary Classic FCPE, the Principal Classic Compartment and Amundi (the “Management Company”) in respect of
(a) trades in Units made pursuant to the Employee Share Offering to or with Canadian Employees; and
(b) trades in Shares of the Filer by the Classic Compartment to or with Canadian Participants upon the redemption of Units as requested by Canadian Participants.
(the Prospectus Relief and the Registration Relief, collectively, the “Offering Relief”).
Under the Process for Exemptive Relief Application in Multiple Jurisdictions (for a passport application),
(a) the Ontario Securities Commission is the principal regulator for this application, and
(b) the Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (“MI 11-102”) is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick and Nova Scotia.
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning as used in this decision, unless otherwise defined.
Representations
This decision is based on the following facts represented by the Filer:
The Filer is a corporation formed under the laws of France. It is not, and has no current intention of becoming, a reporting issuer (or equivalent) under the Legislation or under the securities legislation of any jurisdiction of Canada. The head office of the Filer is located in France and the Shares are listed on Euronext Paris. The Filer is not in default under the Legislation or under the securities legislation of any jurisdiction of Canada.
The Filer has established a global employee share offering for employees of the Saint-Gobain Group (the “Employee Share Offering”). The Filer carries on business in Canada through certain affiliated companies, including CertainTeed Gypsum Canada, Inc., CertainTeed Gypsum North American Services, Inc., Decoustics Limited, Saint-Gobain Abrasives Canada Inc., Saint-Gobain Ceramic Materials Canada Inc. Saint-Gobain Technical Fabrics Canada, Ltd. and CertainTeed Insulation Canada, Inc., Vytec Corporation, Ottawa Fibre L.P., Redcliffe Fibre L.P., Tillsonburg Fibre L.P. and VIB L.P. (collectively, the “Canadian Affiliates” and, together with the Filer and other affiliates of the Filer, the “Saint-Gobain Group”). Each of the Canadian Affiliates is a direct or indirect-controlled subsidiary of the Filer and is not, and has no current intention of becoming, a reporting issuer (or equivalent) under the Legislation or under the securities legislation of any jurisdiction of Canada. The head office of the Saint-Gobain Group in Canada is located in Mississauga, Ontario, and the greatest number of employees of Canadian Affiliates is employed in Ontario.
As of the date hereof and after giving effect to the Employee Share Offering, Canadian residents do not and will not beneficially own (which term, for the purposes of this paragraph, is deemed to include all Shares held by the Classic Compartment on behalf of Canadian Participants) more than 10% of the Shares and do not and will not represent in number more than 10% of the total number of holders of the Shares as shown on the books of the Filer.
The Employee Share Offering is comprised of one subscription option, being an offering of Shares to be subscribed through the Temporary Classic FCPE, which Temporary Classic FCPE will be merged with the Principal Classic Compartment after completion of the Employee Share Offering, subject to the approval of the FCPE’s supervisory board and the French AMF (defined below) (the “Classic Plan”).
Only persons who are employees of a member of the Saint-Gobain Group during the subscription period for the Employee Share Offering and who meet other employment criteria1 (the “Qualifying Employees”) will be allowed to participate in the Employee Share Offering.
The Principal Classic Compartment and the Temporary Classic FCPE have been established for the purpose of implementing the Employee Share Offering. There is no current intention for any of the Principal Classic Compartment or the Temporary Classic FCPE to become reporting issuers (or equivalent) under the Legislation or securities legislation of any jurisdiction of Canada.
As set forth above, the Temporary Classic FCPE is, and the Principal Classic Compartment is a compartment of, an FCPE (a fonds commun de placement d’entreprise) which is a shareholding vehicle of a type commonly used in France for the conservation or custodianship of shares held by employee investors. The Principal Classic Compartment and the Temporary Classic FCPE have been registered with the French Autorité des marchés financiers (the “French AMF”). Only Qualifying Employees will be allowed to hold Units issued pursuant to the Employee Share Offering.
All Units acquired in the Employee Share Offering by Canadian Participants will be subject to a hold period of approximately five years (the “Lock-Up Period”), subject to certain exceptions prescribed by French law (such as a release on death or termination of employment).
Under the Classic Plan:
(a) The subscription price will be the Canadian dollar equivalent of the average of the opening price of the Shares (expressed in Euros) on the 20 trading days preceding the date of fixing of the subscription price by the Chief Executive Officer of the Filer, less a 20% discount.
(b) For each Canadian Participant that makes a contribution to the Classic Plan (such contribution, the “Employee Contribution”), the Canadian Affiliate employing such Canadian Participant will make a contribution to the Classic Plan, for the benefit of, and at no costs to, the Canadian Participant, of an amount equal to 10% of such Employee Contribution up to a maximum amount of $1,000 per Canadian Participant (the “Employer Contribution”).
(c) The Temporary Classic FCPE will apply the cash received from the Employee Contributions and the cash received from the Employer Contributions to subscribe for Shares of the Filer.
Initially, the Shares subscribed for will be held in the Temporary Classic FCPE and the Canadian Participant will receive Units in the Temporary Classic FCPE. Following the completion of the Employee Share Offering, the Temporary Classic FCPE will be merged with the Principal Classic Compartment (subject to the approval of the FCPE’s supervisory board and the French AMF). Units of the Temporary Classic Compartment held by Canadian Participants will be replaced with Units of the Principal Classic Compartment on a pro rata basis, and the Shares subscribed for under the Employee Share Offering will be held in the Principal Classic Compartment (the “Merger”).
Under the Classic Plan, at the end of the Lock-Up Period, a Canadian Participant may
(a) request the redemption of Units in the Classic Compartment in consideration for the underlying Shares or a cash payment equal to the then market value of the Shares; or
(b) request the redemption of Units in the Classic Compartment in consideration for a cash payment equal to the then market value of the Shares.
In the event of an early unwind resulting from the Canadian Participant exercising one of the exceptions to the Lock-Up Period prescribed by French law and meeting the applicable criteria, a Canadian Participant may request the redemption of Units in the Classic Compartment in consideration for a cash payment equal to the then market value of the Shares held by the Classic Compartment.
Dividends paid on the Shares held in the Classic Compartment will be contributed to the Classic Compartment and used to purchase additional Shares. To reflect this reinvestment, new Units (or fractions thereof) of the Classic Compartment will be issued. The declaration of dividends on the Shares is determined by the board of directors of the Filer.
The Temporary Classic FCPE is, and the Principal Classic Compartment is a compartment of, an FCPE, which is a limited liability entity under French law. The portfolio of each of the Principal Classic Compartment and the Temporary Classic FCPE will consist almost entirely of Shares of the Filer, but may, from time to time, include cash in respect of dividends paid on the Shares which will be reinvested in Shares. From time to time, each portfolio may also include cash or cash equivalents that the Principal Classic Compartment and the Temporary Classic FCPE may hold pending investments in Shares and for the purposes of Unit redemptions.
The Management Company is a portfolio management company governed by the laws of France. The Management Company is registered with the French AMF to manage French investment funds and complies with the rules of the French AMF. To the best of the Filer’s knowledge, the Management Company is not, and has no current intention of becoming, a reporting issuer (or equivalent) under the Legislation or the securities legislation of any jurisdiction of Canada.
The Management Company’s portfolio management activities in connection with the Employee Share Offering and the Principal Classic Compartment and the Temporary Classic FCPE are limited to subscribing for Shares from the Filer and selling such Shares as necessary in order to fund redemption requests.
The Management Company is also responsible for preparing accounting documents and publishing periodic informational documents as provided by the rules of each of the Principal Classic Compartment and the Temporary Classic FCPE. The Management Company’s activities do not affect the underlying value of the Shares, and the Management Company will not be involved in providing advice to any Canadian Employees with respect to an investment in the Units. To the best of the Filer’s knowledge, the Management Company is not in default of the Legislation or the securities legislation of any jurisdiction of Canada.
Shares issued in the Employee Share Offering will be deposited in the Principal Classic Compartment and/or the Temporary Classic FCPE, as applicable, through CACEIS Bank (the “Depositary”), a large French commercial bank subject to French banking legislation.
Under French law, the Depositary must be selected by the Management Company from among a limited number of companies identified on a list maintained by the French Minister of the Economy, Finance and Industry and its appointment must be approved by the French AMF. The Depositary carries out orders to purchase, trade and sell securities in the portfolio and takes all necessary action to allow each of the Principal Classic Compartment and the Temporary Classic FCPE to exercise the rights relating to the securities held in its respective portfolio.
The value of Units will be calculated and reported to the French AMF on a regular basis, based on the net assets of the Classic Compartment divided by the number of Units outstanding. The value of Units will be based on the value of the underlying Shares.
All management changes relating to the Classic Compartment will be paid from the assets of the Classic Compartment or by the Filer, as provided in the regulations of the Classic Compartment.
Participation in the Employee Share Offering is voluntary, and Canadian resident Qualifying Employees will not be induced to participate in the Employee Share Offering by expectation of employment or continued employment.
The total amount invested by a Canadian Employee in the Employee Share Offering cannot exceed 25% of his or her gross annual compensation for the 2010 calendar year or 25% of his or her estimated annual compensation for the 2011 calendar year, whichever is greater. The Employer Contribution will not be factored into the maximum amount that a Canadian Employee may contribute.
None of the Filer, the Management Company, the Canadian Affiliates or any of their employees, agents or representatives will provide investment advice to Canadian Employees with respect to an investment in the Shares or the Units.
The Shares are not currently listed for trading on any stock exchange in Canada and the Filer has no intention to have the Shares so listed. As there is no market for the Shares in Canada, and none is expected to develop, any first trades of Shares by Canadian Participants will be effected through the facilities of, and in accordance with the rules and regulations of, a foreign stock exchange outside of Canada.
The Canadian Employees will receive an information package in the English or French language, according to their preference, which will include a summary of the terms of the Employee Share Offering, a tax notice containing a description of Canadian income tax consequences of subscribing to and holding Units and requesting the redemption of Units for cash or Shares at the end of the Lock-Up Period.
Upon request, Canadian Employees may receive copies of the Filer’s French Document de Référence filed with the French AMF in respect of the Filer and a copy of the rules of the Temporary Classic FCPE and the Principal Classic Compartment (which are analogous to company by-laws). The Canadian Employees will also have access to copies of the continuous disclosure materials relating to the Filer that are furnished to holders of the Shares.
Canadian Participants will receive an initial statement indicating the number and value of the Units they hold under the Classic Plan, together with an updated statement at least once per year.
There are approximately 1276 Canadian Employees resident in the provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, New Brunswick and Nova Scotia (with the greatest number, approximately 782, resident in Ontario), who represent, in the aggregate, less than 1% of the number of employees in the Saint-Gobain Group worldwide.
Decision
The principal regulator is satisfied that the test contained in the Legislation that provides the principal regulator with the jurisdiction to make the decision has been met.
The decision of the principal regulator under the Legislation is that the Offering Relief is granted provided that the prospectus requirements of the Legislation will apply to the first trade in any Units or Shares acquired by Canadian Participants pursuant to this decision unless the following conditions are met:
(a) the issuer of the security
(i) was not a reporting issuer in any jurisdiction of Canada at the distribution date, or
(ii) is not a reporting issuer in any jurisdiction of Canada at the date of the trade;
(b) at the distribution date, after giving effect to the issue of the security and any other securities of the same class or series that were issued at the same time as or as part of the same distribution as the security, residents of Canada
(i) did not own, directly or indirectly, more than 10% of the outstanding securities of the class or series, and
(ii) did not represent in number more than 10% of the total number of owners, directly or indirectly, of securities of the class or series; and
(c) the first trade is made
(i) through the facilities of an exchange, or a market, outside of Canada, or
(ii) to a person or company outside of Canada.
“Christopher Portner” “Paulette L. Kennedy”
Commissioner Commissioner
Ontario Securities Commission Ontario Securities Commission