Compagnie De Saint-Gobain
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 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 employees 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
Securities Act (Ontario), R.S.O. 1990, c. S.5, as am.
National Instrument 31-10 3 Registration Requirements, Exemptions and Ongoing Registrant Obligations.
National Instrument 45-106 Prospectus Exemptions.
National Instrument 45-102 Resale of Securities.
Ontario Securities Commission Rule 72-503 Distributions Outside Canada.
February 4, 2022
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)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) for:
1. an exemption from the prospectus requirement (the Prospectus Relief) so that such requirement does not apply to
(a) trades of:
(i) units (the 2022 Units) of a temporary fonds commun de placement d'entreprise or "FCPE", a form of collective shareholding vehicle commonly used in France for the custody of shares held by employee-investors, named Saint-Gobain Relais 2022 Monde (the 2022 Fund); and
(ii) units (together with the 2022 Units, the Temporary Classic Units, and together with the 2022 Units and the Principal Classic Units (as defined below), the Units) of future temporary FCPEs organized in the same manner as the 2022 Fund (together with the 2022 Fund, the Temporary Classic Funds),
(iii) made under the Saint-Gobain Group Share Purchase Plan (PEG) to or with Qualifying Employees (as defined below) resident in the Jurisdiction and the Other Offering Jurisdictions (as defined below) (collectively, the Canadian Employees, and Canadian Employees who subscribe for Temporary Classic Units, the Canadian Participants);
(b) trades of ordinary shares of the Filer (the Shares) by the Classic Fund to or with Canadian Participants upon the redemption of Units as requested by Canadian Participants (the term "Classic Fund" used herein means, prior to the Merger (as defined below), a Temporary Classic Fund and following the Merger, a compartment (the Principal Classic Compartment) named Saint-Gobain Avenir Monde of an FCPE named Saint-Gobain PEG Monde (the Principal Classic Fund)); and
2. an exemption from the dealer registration requirement (the Registration Relief, and together with the Prospectus Relief, the Offering Relief) so that such requirement does not apply to the Filer and its Local Related Entities (as defined below), the Classic Fund and Amundi Asset Management (the Management Company) in respect of:
(a) trades in Units made pursuant to an Employee Offering (as defined below) to or with Canadian Employees; and
(b) trades in Shares by the Classic Fund to or with Canadian Participants upon the redemption of Units as requested by Canadian Participants.
Under the Process for Exemptive Relief Applications 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 (the Other Offering Jurisdictions).
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
"Related entity" has the same meaning given to such term in section 2.22 of National Instrument 45-106 Prospectus Exemptions (NI 45-106).
Representations
This decision is based on the following facts represented by the Filer:
1. The Filer is a corporation formed under the laws of France. It is not, and has no current intention of becoming, a reporting issuer under the Legislation or the securities legislation of any other 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 of securities legislation of any jurisdiction of Canada.
2. The Filer carries on business in Canada through certain related entities and has established a global employee share offering under the PEG (the 2022 Employee Offering) and expects to establish subsequent global employee share offerings of the Filer following 2022 for the next four years that are substantially similar (Subsequent Employee Offerings, and together with the 2022 Employee Offering, the Employee Offerings) for Qualifying Employees and its participating related entities, including related entities that employ Canadian Employees (Local Related Entities, and together with the Filer and other related entities of the Filer, the Saint-Gobain Group). Each of the Local Related Entities is a direct or indirect controlled subsidiary of the Filer and no Local Related Entity has any current intention of becoming a reporting issuer under the Legislation or the securities legislation of any other jurisdiction of Canada. The principal office of the Saint-Gobain Group in Canada is located in Ontario, and the greatest number of employees of Local Related Entities are employed in Ontario as compared to any other jurisdiction in Canada.
3. As of the date hereof, "Local Related Entities" include CertainTeed Canada, Inc., Vi-lux Building Products Inc., Saint-Gobain Canada Inc. and SAINT-GOBAIN ADFORS Canada, Ltd. For any Subsequent Employee Offering, the list of "Local Related Entities" may change.
4. Each Employee Offering will be made under the terms as set out herein and for greater certainty, all of the representations will be true for each Employee Offering other than paragraphs 3, 11 and 27 which may change (save for references to the 2022 Fund and the 2022 Employee Offering which will be varied such that they are read as references to the relevant Temporary Classic Fund and Subsequent Employee Offering, respectively).
5. Each Employee Offering involves an offering of Shares to be acquired through a Temporary Classic Fund, which will be merged with the Principal Classic Compartment following completion of the Employee Offering (the Classic Plan), subject to the decision of the supervisory boards of the FCPEs and the approval of the French AMF (as defined below).
6. As of the date hereof and after giving effect to any Employee Offering, the Filer is and will be a "foreign issuer" as such term is defined in section 2.15(1) of National Instrument 45-102 Resale of Securities (NI 45-102), section 2.8(1) of Ontario Securities Commission Rule 72-503 Distributions Outside Canada (OSC Rule 72-503), and section 11(1) of Alberta Securities Commission Rule 72-501 Distributions to Purchasers Outside Alberta (Alberta Rule 72-501), and the Filer is not and will not be a reporting issuer in any jurisdiction of Canada.
7. Only persons who are employees of a member of the Saint-Gobain Group during the subscription period for the Employee Offering and who meet other employment criteria (the "Qualifying Employees"), including a minimum employment condition of three months measured at the close of the subscription period, will be eligible to participate in the Employee Offering. Such three month period may either be on a continuous or discontinuous basis. The relevant period for measuring a discontinuous three month period for the 2022 Offering is from January 1, 2021 through the last day of the subscription period, and such employee must be employed as of the last day of the subscription period.
8. The 2022 Fund was established for the purpose of implementing the 2022 Employee Offering. The Principal Classic Compartment was established for the purpose of implementing the Employee Offering generally. There is no current intention for any of the 2022 Fund or the Principal Classic Compartment to become a reporting issuer under the securities legislation of any jurisdiction of Canada. There is no intention for any Temporary Classic Fund that will be established for the purpose of implementing Subsequent Employee Offerings to become a reporting issuer under the securities legislation of any jurisdiction of Canada.
9. The 2022 Fund and the Principal Classic Compartment are registered with the French Autorité des marchés financiers (the French AMF). It is expected that each Temporary Classic Fund established for Subsequent Employee Offerings will be a French FCPE and registered with, and approved by, the French AMF.
10. Under the Classic Plan, each Employee Offering will be made as follows:
(a) Canadian Participants will subscribe for the relevant Temporary Classic Units, and the relevant Temporary Classic Fund will then subscribe for Shares on behalf of Canadian Participants at a subscription price that is the Canadian dollar equivalent of the average opening price of the Shares (expressed in Euros) on Euronext Paris for the 20 trading days preceding the date of the fixing of the subscription price (the Reference Price) by the Chief Executive Officer of the Filer, less a specified discount to the Reference Price.
(b) Canadian Participants will make a contribution to the Classic Plan (the Employee Contribution), and the Local Related Entities that employ the Canadian Participants will also contribute on behalf of such Canadian Participants an amount into the Classic Plan (the Employer Contributions). The Temporary Classic Fund will apply the cash received from the Employee Contributions and the Employer Contributions to subscribe for Shares from the Filer.
(c) Initially, the Shares subscribed for will be held in the relevant Temporary Classic Fund and the Canadian Participants will receive Units of the relevant Temporary Classic Fund.
(d) Following the completion of an Employee Offering, the relevant Temporary Classic Fund will be merged with the Principal Classic Compartment (subject to the approval of the supervisory board of the FCPEs and the French AMF). The Temporary Classic Units held by Canadian Participants will be replaced with units of the Principal Classic Fund (the Principal Classic Units) on a pro rata basis and the Shares will be held in the Principal Classic Compartment (such transaction being referred to as the Merger). The Filer is relying on the exemption from the prospectus requirement pursuant to section 2.11 of NI 45-106 in respect of the issuance of Units of the Principal Classic Fund to Canadian Participants in connection with the Merger.
(e) The Units will be subject to a hold period of approximately five years (the Lock-Up Period), subject to certain exceptions provided for under French law and adopted for an Employee Offering in Canada (such as a release on death or termination of employment).
(f) Any dividends paid on the Shares held in the Classic Fund will be automatically reinvested in the Classic Fund and used to purchase additional Shares. To reflect this reinvestment, new Units (or fractions thereof) will be issued to the Canadian Participants.
(g) At the end of the relevant Lock-Up Period, a Canadian Participant may (i) request the redemption of Units in the Classic Fund in consideration for the underlying Shares or a cash payment equal to the then market value of the Shares, or (ii) continue to hold Units in the Classic Fund and request the redemption of those Units at a later date in consideration for the underlying Shares or a cash payment equal to the then market value of the Shares.
(h) In the event of an early exit resulting from a Canadian Participant exercising one of the exceptions to the Lock-Up Period and meeting the applicable criteria, the Canadian Participant may request the redemption of Units in the Classic Fund in consideration for a cash payment equal to the then market value of the underlying Shares.
(i) As indicated in paragraph 10(b) above, the Local Related Entity employing a Canadian Participant will also contribute on behalf of such Canadian Participant an amount into the Classic Plan based on predetermined matching contribution rules.
11. For the 2022 Employee Offering, for each Employee Contribution, the Local Related Entity employing such Canadian Participant will contribute an additional 15% of such amount into the Classic Plan, up to a maximum amount of $1,500 per Canadian Participant to the Classic Plan, for the benefit of, and at no cost to, the Canadian Participant. For each Subsequent Employee Offering, the matching contribution rules may change.
12. Under French law, an FCPE is a limited liability entity. The portfolio of the Classic Fund will consist almost entirely of Shares and may also include cash in respect of dividends paid on the Shares which will be reinvested in Shares as discussed above and cash or cash equivalents pending investments in the Shares and for the purposes of Unit redemptions.
13. The Classic Fund is managed by the Management Company, which is a portfolio management company governed by the laws of France. The Management Company is registered with the French AMF as an investment manager and complies with the rules of the French AMF. To the best of the Filer's knowledge and after reasonable verification, the Management Company is not, and has no current intention of becoming, a reporting issuer under the Legislation or the securities legislation of any other jurisdiction of Canada.
14. Only Qualifying Employees will be allowed to hold Units of the Classic Fund.
15. The Management Company's portfolio management activities in connection with an Employee Offering and the Classic Fund are limited to purchasing Shares from the Filer, selling such Shares as necessary in order to fund redemption requests and investing available cash in cash equivalents.
16. The Management Company is also responsible for preparing accounting documents and publishing periodic informational documents as provided by the rules of the Classic Fund. The Management Company's activities will not affect the underlying value of the Shares.
17. None of the entities forming part of the Saint-Gobain Group, the Classic Fund or the Management Company or any of their employees, directors, officers, agents or representatives will provide investment advice to the Canadian Employees with respect to an investment in the Shares or the Units.
18. Shares issued pursuant to an Employee Offering will be deposited in the Classic Fund through CACEIS Bank (the Depositary), a large French commercial bank subject to French banking legislation. The Depositary carries out orders to purchase, trade and sell securities in the portfolio and takes all necessary action to allow the Classic Fund to exercise the rights relating to the securities held in its portfolio.
19. The Management Company and the Depositary are obliged to act exclusively in the best interests of the holders of the Units (including Canadian Participants) and are jointly and severally liable to them for any violation of the rules and regulations governing FCPEs, any violation of the rules of the FCPE, or for any self-dealing or negligence.
20. Participation in an Employee Offering is voluntary, and the Canadian Employees will not be induced to participate in an Employee Offering by expectation of employment or continued employment.
21. The total amount invested by a Canadian Employee pursuant to an Employee Offering cannot exceed 25% of his or her gross annual compensation. The Employer Contribution will not be factored into the maximum amount that a Canadian Employee may contribute.
22. The Shares and the Units are not currently listed for trading on any stock exchange in Canada and there is no intention to have the Shares or the Units so listed.
23. None of the entities forming part of Saint-Gobain Group, the Classic Fund or the Management Company is currently in default of securities legislation of any jurisdiction of Canada.
24. The Unit value of the Classic Fund will be calculated and reported to the French AMF on a regular basis, based on the net assets of the Classic Fund divided by the number of Units outstanding. The value of the Units will be based on the value of the underlying Shares.
25. All management charges relating to the Classic Fund will be paid from the assets of the Classic Fund, as provided in the regulations of the Classic Fund.
26. The Canadian Employees will receive, or will be notified of their ability to request, an information package in the French or English language, according to their preference, which will include a summary of the terms of the relevant Employee Offering and a description of Canadian income tax consequences of subscribing for and holding the Units of the Classic Fund and the redemption of such Units at the end of the applicable Lock-Up Period. Canadian Employees will have access to or may request a copy of the Filer's French Document d'Enregistrement Universel filed with the French AMF in respect of the Shares and a copy of the rules of the relevant Temporary Classic Fund and the Principal Classic Compartment. The Canadian Employees will also have access to the continuous disclosure materials relating to the Filer that are furnished to holders of the Shares generally. Canadian Participants will have access to an initial statement of their holdings under the Classic Plan, together with access to a semi-annual statement, in June and December of each year. Such statements will be available online only.
27. As at December 28, 2021, there are approximately 1,273 Canadian Employees resident in Canada, with the greatest number resident in Ontario (717), and the remainder in the Other Offering Jurisdictions 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 decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Offering Relief is granted, provided that:
(a) for the 2022 Employee Offering:
(i) the issuer of the security was a foreign issuer on the distribution date, as such term is defined in section 2.15(1) of NI 45-102, section 2.8(1) of OSC Rule 72-503 and section 11(1) of ASC Rule 72-501; and
(ii) the prospectus requirement 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:
(1) the issuer of the security
(A) was not a reporting issuer in any jurisdiction of Canada at the distribution date, or
(B) is not a reporting issuer in any jurisdiction of Canada at the date of the trade; and
(2) the first trade is made
(3) through an exchange, or a market, outside of Canada, or
(4) to a person or company outside of Canada;
(b) for any Subsequent Employee Offering under this decision completed within five years from the date of this decision:
(i) the representations other than those in paragraphs 3, 11 and 27 remain true and correct in respect of that Subsequent Employee Offering; and
(ii) the conditions set out in paragraph (a) above are satisfied as of the date of any distribution of a security under such Subsequent Employee Offering (varied such that any references therein to the 2022 Fund and the 2022 Employee Offering are read as references to the relevant Temporary Classic Fund and Subsequent Employee Offering, respectively); and
(c) in the Provinces of Ontario and Alberta, the prospectus exemption above, for the first trade in any Units or Shares acquired by Canadian Participants pursuant to this decision, is not available with respect to any transaction or series of transactions that is part of a plan or scheme to avoid the prospectus requirements in connection with a trade to a person or company in Canada.
"Cathy Singer"
Commissioner
Ontario Securities Commission
"Mary Anne De Monte-Whelan"
Commissioner
Ontario Securities Commission