Unipex International S.A.S. and SISMUX 2 S.A.S.
Headnote
National Policy 11-203 Process For Exemptive Relief Applications in Multiple Jurisdictions -- Application for relief from the prospectus 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 a special purpose entity -- Canadian participants already own shares of the parent company of their employer and will transfer these shares to a special purpose entity in exchange for shares of the special purpose entity -- Canadian participants will receive disclosure documents -- 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., s. 74.
National Instrument 45-106 Prospectus and Registration Exemptions, s. 2.24.
December 12, 2012
TRANSLATION
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
QUÉBEC AND ONTARIO
(the "Jurisdictions")
AND
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF
UNIPEX INTERNATIONAL S.A.S. ("Unipex Intl") AND
SISMUX 2 S.A.S. ("SISMUX 2" and, collectively
with Unipex Intl, the "Filers")
DECISION
Background
The securities regulatory authority or regulator in each of the Jurisdictions (each a "Decision Maker") has received an application from the Filers for a decision under the securities legislation of the Jurisdictions (the "Legislation") that the prospectus requirements do not apply to SISMUX 2 and the Employee Shareholders (as defined below) in connection with the SISMUX 2 Transfer (as defined below) (the "Exemption Sought").
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
(a) the Autorité des marchés financiers is the principal regulator for this application; and
(b) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Interpretation
Terms defined in Regulation 14-101 respecting Definitions and Regulation 11-102 respecting Passport System have the same meaning if used in this decision, unless otherwise defined.
Representations
This decision is based on the following facts represented by the Filers:
The Filers
1. Unipex Intl is a simplified joint stock company (société par actions simplifiée) formed under the laws of France. Unipex Intl's head office is located in France. It is not and has no current intention of becoming a reporting issuer under the Legislation. Unipex Intl is not in default under the Legislation. None of Unipex Intl's securities are currently listed on a stock exchange, and Unipex Intl has no current intention of listing any of its securities on a stock exchange.
2. SISMUX 2 is a simplified joint stock company (société par actions simplifiée) under the laws of France. SISMUX 2's head office is located in France. It is not and has no current intention of becoming a reporting issuer under the Legislation. SISMUX 2 is not in default under the Legislation. None of SISMUX 2's securities are currently listed on a stock exchange, and SISMUX 2 has no current intention of listing any of its securities on a stock exchange.
3. Unipex Intl was established by UPX International 2 S.à.r.l. ("Luxco"), a limited liability company (société à responsabilité limitée) formed under the laws of Luxembourg and controlled directly or indirectly by IK Investment Partners ("IK") and/or European investment funds managed by it, for the purposes of completing the Sale Transaction (as defined below). IK is a Pan-European private equity firm founded in 1989.
4. Groupe Unipex S.A.S. ("Unipex Group") is a simplified joint stock company (société par actions simplifiée) formed under the laws of France and wholly-owned indirectly by Unipex Intl. Unipex Group's head office is located in France.
5. Unipex Group specializes in the development, production, marketing and distribution of active ingredients, specialty chemicals and other chemical products in the cosmetics, pharmaceutical, nutrition and industrial sectors. It counts six offices across North America and Europe.
6. Unipex Group carries on business in Canada through Lucas Meyer Cosmetics Canada Inc. (formerly Unipex Innovations Inc.) and Unipex Solutions Canada Inc., two wholly-owned subsidiaries of Unipex Group, and through Debro Pharma Inc., a wholly-owned subsidiary of Unipex Solutions Canada Inc. (collectively, the "Canadian Affiliates").
The 2009 Purchase Plan
7. SISMUX S.A.S. ("SISMUX") is a simplified joint stock company (société par actions simplifiée) formed under the laws of France. It was created for the purposes of receiving subscriptions from participants under the 2009 share purchase plan for employees of Unipex Group (the "2009 Purchase Plan"), including a number of employees of the Canadian Affiliates who resided in Québec, Ontario and Alberta, and using subscription funds to acquire securities of Unipex Group and subsequently holding, managing and disposing of such securities.
8. Under a decision dated December 22, 2009, the Decision Makers granted to Unipex Group an exemption from the prospectus and registration requirements so that they did not apply to the distribution of shares of SISMUX pursuant to the 2009 Purchase Plan to qualifying employees of Canadian Affiliates who resided in Québec, Ontario and Alberta and who elected to participate in the 2009 Purchase Plan, provided that such requirements would apply to first trades in SISMUX shares acquired by Canadian participants, unless such trades were made in accordance with the terms of the 2009 Purchase Plan, and either between qualifying employees, with the then-majority shareholder of Unipex Group, with SISMUX or pursuant to the terms and conditions of an offer made by a third-party to purchase all of Unipex Group's securities, in compliance with Unipex Group's shareholders' agreement.
9. As a result of the Sale Transaction (as defined below) and the subsequent corporate reorganization, SISMUX has become a wholly-owned subsidiary of Unipex Intl.
The Sale Transaction
10. On September 20, 2012, Unipex Intl completed the acquisition of all the securities of Unipex Group and of SISMUX (the "Sale Transaction"). In the context of the Sale Transaction, shareholders of SISMUX could elect to receive in exchange for all or a portion of his/her SISMUX shares a number of newly issued shares of Unipex Intl having an equivalent value (the "Share Consideration Election"). A total of 20 SISMUX shareholders (of which 11 reside in France, seven reside in Québec and two reside in Ontario) made the Share Consideration Election.
11. In connection with the Sale Transaction, Unipex Intl established the 2012 share purchase plan for employees of Unipex Group (the "2012 Purchase Plan") under which employees of Unipex Intl and its affiliates, including the Canadian Affiliates, were offered the opportunity to acquire shares of Unipex Intl.
12. A total of 27 employees (of which 18 reside in France, seven reside in Québec and two reside in Ontario) agreed to subscribe to shares of Unipex Intl under the 2012 Purchase Plan. Nine of these employees were SISMUX shareholders and also made the Share Consideration Election as part of the Sale Transaction.
13. Participation in the 2012 Purchase Plan was on a voluntary basis, and employees were not induced to participate in the 2012 Purchase Plan by expectation of employment or continued employment. Participation by a Canadian employee to the 2012 Purchase Plan was not funded through payroll deductions but was made through a single payment in Euros.
14. Employees who had indicated their interest in participating in the 2012 Purchase Plan were provided with a document entitled "Groupe Unipex / Unipex International -- Programme d'investissement" dated September 2012 containing a summary description of the terms and conditions of an eventual investment in Unipex Intl (the "Disclosure Document"). The Disclosure Document was also provided to SISMUX shareholders who had indicated their interest in making the Share Consideration Election. The English and French versions of the Disclosure Document were filed with the Autorité des marchés financiers pursuant to section 37.2 of the Securities Regulation (Québec) on October 1, 2012.
15. The subscriptions by participants under the 2012 Purchase Plan were completed on October 10, 2012.
16. The distribution of Unipex Intl shares to employees of the Canadian affiliates who have elected to participate in the 2012 Purchase Plan was exempt from the prospectus requirement under the Legislation pursuant to section 2.24 of Regulation 45-106 respecting Prospectus and Registration Exemptions.
17. The shareholders of Unipex Intl and certain other parties have entered into a shareholders' agreement (pacte d'associés) dated September 20, 2012 (the "Shareholders' Agreement") which, among other things, prohibits the 38 employees of Unipex Group who have acquired their shares of Unipex Intl in exchange for their SISMUX shares pursuant to the Sale Transaction and/or in connection with the 2012 Purchase Plan (the "Employee Shareholders") from selling their shares of Unipex Intl for a period of 10 years (subject to certain exceptions), and, at the request of Luxco, requires the Employee Shareholders to sell their shares of Unipex Intl in connection with a change of control of Unipex Intl.
The SISMUX 2 Transfer
18. The Disclosure Document and the Shareholders' Agreement state that, following completion of the Sale Transaction, not more than 30 days following the issuance of Unipex Intl shares to the Employee Shareholders, such Employee Shareholders will be required to transfer their shares of Unipex Intl to SISMUX 2 in exchange for common shares of SISMUX 2 (the "SISMUX 2 Transfer"). In the case of Employee Shareholders who reside in Québec or Ontario, the SISMUX 2 Transfer will be subject to the grant of the Exemption Sought.
19. SISMUX 2 was created solely for the purposes of acquiring the Unipex Intl shares held by the Employee Shareholders pursuant to the SISMUX 2 Transfer and holding, managing and disposing of such Unipex Intl shares. SISMUX 2 is not, and will not be, an affiliate of Unipex Intl. It is not an investment fund under the Legislation. There are no tax advantages derived from the SISMUX 2 Transfer, but it would allow Unipex Intl to limit the number of its shareholders and to group together all of its Employee Shareholders in one corporate entity, thereby replicating the structure that was in place prior to the Sale Transaction following the grant of an exemptive relief by the Decision Makers in 2009.
20. Each common share of SISMUX 2 entitles the holder thereof to earnings, corporate assets and liquidation bonus. It also entitles the holder thereof to one vote on the collective decisions of the shareholders.
21. The provisions of the Shareholders' Agreement will apply mutatis mutandis to the ownership of SISMUX 2 shares by the Employee Shareholders. In addition, the constating documents of SISMUX 2 contain specific provisions governing and restricting the transferability of the shares of SISMUX 2.
22. The President of SISMUX 2 will be Mr. Patrice Barthelmes as long as he remains the President of Unipex Intl. The President of SISMUX 2 will be the sole representative of SISMUX 2, including in connection with any matter related to the Shareholders' Agreement.
23. The Filers will provide copies of the Disclosure Document, the Shareholders' Agreement and the articles of SISMUX 2 and Unipex Intl to employees of Unipex Intl or of one of its affiliates who become shareholders of SISMUX 2 as a result of subsequent trades in the common shares of SISMUX 2 issued pursuant to the SISMUX 2 Transfer.
24. Following the SISMUX 2 Transfer, the Employee Shareholders will receive, in connection with annual general meetings of SISMUX 2, the President's Report on the activities of SISMUX 2 for the previous year, which must include, under applicable French law, information on the companies in which SISMUX 2 holds an interest. As such, the Employee Shareholders will be provided with financial information on Unipex Intl and will be provided upon request with the annual audited financial statements of Unipex Intl for the previous year.
Decision
Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
The decision of the Decision Makers under the Legislation is that the Exemption Sought is granted, provided that the prospectus requirements will apply to the first trade in the common shares of SISMUX 2 subscribed by an Employee Shareholder who resides in Québec or Ontario pursuant to this decision, unless such trade is made:
a) to a shareholder of SISMUX 2 or an employee of Unipex Intl or of one of its affiliates;
b) to Unipex Intl, SISMUX 2 or Luxco; or
c) pursuant to the terms and conditions of an offer made by a third party to purchase all of Unipex Intl's securities in compliance with the Shareholders' Agreement.
Signed in Montréal, December 12, 2012.