Thales

Decision

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 a special purpose entity -- Canadian participants will receive disclosure documents -- the special purpose entity or FCPE is 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, R.S.O. 1990, c. S.5, as am., ss. 25(1), 53(1) and 74(1).

National Instrument 31-103 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.

September 09, 2024

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
THALES
(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 of the Legislation (the Prospectus Relief) so that such requirement does not apply to:

(a) trades of:

(i) units (the Principal Classic Units) of a fonds commun de placement d'entreprise or FCPE, a form of collective shareholding vehicle commonly used in France for the conservation of shares held by employee-investors, named Actionnariat Salarié Thales (the Principal Classic Fund); and

(ii) units (the Temporary Classic Units, and together with the Principal Classic Units, the Units) of future temporary FCPEs established for Subsequent Employee Offerings (as defined below) (the Temporary Classic Funds, and together with the Principal Classic Fund, the Funds),

made pursuant to the Employee Offering (as defined below) to or with Qualifying Employees (as defined below) resident in the Jurisdictions (as defined below) (collectively, the Canadian Employees, and Canadian Employees who subscribe for Units, the Canadian Participants); and

(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 the Principal Classic Fund for the 2024 Employee Offering (as defined below) and, prior to the Merger (as defined below), a Temporary Classic Fund for Subsequent Employee Offerings, and following the Merger, the Principal Classic Fund); and

2. an exemption from the dealer registration requirement (the Registration Relief) so that such requirement does not apply to the Filer, the 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 the Employee Offering 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

(the Prospectus Relief and the Registration Relief, collectively, the Exemption Sought).

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, Prince Edward Island, Nova Scotia, and Newfoundland and Labrador, (together with the Jurisdiction, the Jurisdictions).

Interpretation

Terms defined in National Instrument 14-101 -- Definitions, MI 11-102 and National Instrument 45-106 -- Prospectus Exemptions (NI 45-106) have the same meaning if used in this decision, unless otherwise defined.

"Related entity" has the same meaning given to such term in NI 45-106 under the heading "Division 4 -- Employee Executive Officer, Director and Consultant Exemptions".

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 intention of becoming, a reporting issuer 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 Shares and Units are not currently listed for trading on any Canadian stock exchange and there is no intention to have the Shares or Units so listed.

2. The Filer has established a global employee share offering (the 2024 Employee Offering) and expects to establish subsequent global employee share offerings of the Filer following 2024 for the next four years that are substantially similar (the Subsequent Employee Offerings, and together with the 2024 Employee Offering, the Employee Offering) for Qualifying Employees of the Filer and its participating related entities, including related entities that employ Canadian Employees (the Local Related Entities, and together with the Filer and other related entities of the Filer, the Thales Group). Each Local Related Entity is a direct or indirect controlled subsidiary of the Filer and no Local Related Entity is a reporting issuer nor has any intention of becoming a reporting issuer under the securities legislation of any jurisdiction of Canada. The head office of the Thales Group in Canada is located in Ontario.

3. As of the date hereof, Local Related Entities include Thales DIS CPL Canada Inc., Thales DIS Canada Inc., Thales Digital Solutions Inc., Thales Canada Inc. and Imperba Canada, ULC. For any Subsequent Employee Offering, the list of Local Related Entities may change.

4. As of the date hereof, and after giving effect to the 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 (ASC Rule 72-501).

5. The 2024 Employee Offering involves an offering of Shares to be acquired through the Classic Fund. Each Subsequent Employee Offering will involve an offering of Shares to be subscribed through the Classic Fund (the Classic Plan, which for greater certainty includes the 2024 Employee Offering), subject to the decision of the supervisory board of the Funds and the approval of the Autorité des marchés financiers in France (the French AMF).

6. Only persons who are employees of an entity forming part of the Thales Group during the subscription period for the Employee Offering and who meet other employment criteria (e.g., have been employed by an entity in the Thales Group for three months on the date corresponding to the end of the subscription period (the Qualifying Employees) will be authorized to participate in the relevant Employee Offering.

7. The Principal Classic Fund was established for the purpose of implementing the 2024 Employee Offering. There is no intention for the Principal Classic Fund 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.

8. The Principal Classic Fund was registered with and has been approved by the French AMF.

9. It is expected that each Temporary Classic Fund established for Subsequent Employee Offerings will be an FCPE and will be 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 Units, and the Principal Classic Fund under the 2024 Employee Offering or the Temporary Classic Fund under the Subsequent Employee Offerings, will then subscribe for Shares on behalf of Canadian Participants using the Canadian Participants' contributions.

(b) The subscription price of a Share will be 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 (20% for the 2024 Employee Offering). The subscription price will be made known to Canadian Participants at the time they subscribe.

(c) For each contribution that a Canadian Participant makes, the Local Related Entities that employ Canadian Participants will make a matching contribution in cash and then reinvested in Shares in an amount corresponding to 50% of the amount invested, up to an annual maximum of 500 euros. For each Subsequent Employee Offering, the matching contribution rules may change.

(d) For the 2024 Employee Offering, the Principal Classic Fund, and for Subsequent Employee Offerings, the relevant Temporary Classic Fund, respectively, will apply the cash received from Canadian Participants and the cash received from the employer contributions to subscribe for Shares.

(e) For Subsequent Employee Offerings, 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.

(f) For Subsequent Employee Offerings, following the completion of an Employee Offering, the relevant Temporary Classic Fund will be merged with the Principal Classic Fund (subject to the approval of the supervisory board of the FCPE and the French AMF). The Temporary Classic Units held by Canadian Participants will be replaced with Principal Classic Units on a pro rata basis and the Shares subscribed for will be held in the Principal Classic Fund (such transaction being referred to as the Merger). The Merger is made by the transfer of all assets held in the Temporary Classic Fund into the Principal Classic Fund and the liquidation of the Temporary Classic Funds after such transfer.

(g) All Units acquired in the Employee Offering by Canadian Participants 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.

(h) Any dividends paid on the Shares held in the Classic Fund will be contributed to the Classic Fund and used to purchase additional Shares (or fractions thereof). The net asset value of the Units will be increased to reflect this reinvestment. No new Units (or fractions thereof) will be issued to the Canadian Participants.

(i) At the end of the applicable Lock-Up Period, a Canadian Participant may: (i) request the redemption of his or her 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 his or her 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.

(j) 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.

11. Under French law, an FCPE is a limited liability entity. The portfolio of the Funds will consist almost entirely of Shares, but may, from time to time, include cash in respect of dividends paid on the Shares which will be reinvested in Shares and cash or cash equivalents pending investments in the Shares and for the purposes of Unit redemptions.

12. The Funds are 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. The Management Company is not, and has no intention of becoming, a reporting issuer under the securities legislation of any jurisdiction of Canada.

13. The Management Company's portfolio management activities in connection with the Employee Offering and the Funds 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 pending investments in the Shares and for the purposes of Unit redemptions.

14. The Management Company is also responsible for preparing accounting documents and publishing periodic informational documents as provided by the rules of the Funds. The Management Company's activities do not affect the underlying value of the Shares.

15. None of the entities forming part of the Thales Group, the Funds or the Management Company or any of their directors, officers, employees, agents or representatives will provide investment advice to the Canadian Employees with respect to an investment in Units or Shares.

16. None of the Filer, other entities forming part of the Thales Group, the Funds or the Management Company is in default of securities legislation of any jurisdiction of Canada.

17. Shares issued pursuant to an Employee Offering will be deposited in the Classic Fund through CACEIS Bank France (the Depositary), a large French commercial bank subject to French banking legislation. For any Subsequent Employee Offering, the Depositary may change. In the event of such a change, the successor to the Depositary will remain 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.

18. The Management Company and the Depositary are obliged to act exclusively in the best interests of the Unit holders (including Canadian Participants) and are jointly and severally liable to them under French legislation for any violation of the rules and regulations governing FCPEs, any violation of the rules of the Funds, or for any self-dealing or negligence.

19. Participation in the Employee Offering is voluntary, and the Canadian Employees will not be induced to participate in the Employee Offering by expectation of employment or continued employment.

20. 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 Units will increase or decrease reflecting the increase or decrease of the value of the underlying Shares on Euronext Paris.

21. All management charges relating to the Classic Fund will be paid from the assets of the Classic Fund or by the Filer, as provided in the rules of the Classic Fund.

22. The total amount that may be invested by a Canadian Employee in the 2024 Employee Offering cannot exceed 25% of his or her gross annual compensation. Amounts contributed by a Canadian Employee's employer through the employer matching contribution described above are not factored into the maximum amount that a Canadian Employee may contribute.

23. 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 Offering and a description of the relevant Canadian income tax consequences of subscribing for and holding Units of the Classic Fund and requesting the redemption of such Units at the end of the applicable Lock-Up Period. Canadian Participants will have access to the Filer's French Document d'Enregistrement Universel filed with the French AMF in respect of the Shares and the rules of the Principal Classic Fund and the relevant Temporary Classic Fund. Canadian Employees will also have access to the continuous disclosure materials relating to the Filer that are furnished to holders of Shares generally and that are available on the Filer's website. Canadian Participants will receive an initial statement of their holdings under the Classic Plan, together with an updated statement, at least once per year.

24. As of July 16, 2024, for the 2024 Employee Offering, there are approximately 1,283 Qualifying Employees resident in Canada, with the greatest number resident in Ontario (644), and the remainder in the provinces of British Columbia (155), Alberta (12), Saskatchewan (1), Manitoba (2), Québec (370), New Brunswick (7), Prince Edward Island (1), Nova Scotia (87), Newfoundland and Labrador (4), which represents, in the aggregate, less than 2% of the number of employees in the Thales Group worldwide.

25. Each Employee Share 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 and 24 which may change (save for references to the 2024 Employee Offering which will be varied such that they are read as references to the relevant Subsequent Employee Offering).

26. Units are not transferable by holders of such Units except upon redemption and other than as reflected in the decision document.

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 Exemption Sought is granted provided that:

I. with respect to the 2024 Employee Offering, 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:

(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) 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

(c) the first trade is made:

(i) through an exchange, or a market, outside of Canada, or

(ii) to a person or company outside of Canada; and

II. for any Subsequent Employee Offering under this decision completed within five years from the date of this decision:

(a) the representations other than those in paragraphs 3 and 24 remain true and correct in respect of a Subsequent Employee Offering, and

(b) the conditions set out in paragraph I apply to any Subsequent Employee Offering (varied such that any references therein to the 2024 Employee Offering are read as references to the relevant Subsequent Employee Offering); and

III. in the Province of Ontario and Alberta, the Prospectus Exemption, 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.

"Leslie Milroy"
Manager, Corporate Finance
Ontario Securities Commission

OSC File #: 2024/0417