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Schneider Electric S.E.
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Application for relief from the prospectus and dealer registration requirements for certain trades made in connection with an employee share offering by a French issuer -- The offering involves the use of collective employee shareholding vehicles, each a fonds communs de placement d'entreprise (FCPE) -- The Filer cannot rely on the employee prospectus exemption in section 2.24 of National Instrument 45-106 Prospectus and Registration Exemptions and the Manager cannot rely on the plan administrator exemption in section 8.16 of National Instrument 31-103 Registration Requirements and Exemptions as the shares are not being offered to Canadian employees directly by the issuer but through the FCPEs -- Canadian employees will receive disclosure documents -- The FCPEs are subject to the supervision of the French Autorité des marchés financiers -- Relief granted, subject to conditions.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 25, 53, 74.
National Instrument 31-103 Registration Requirements and Exemptions, s. 8.16.
National Instrument 45-102 Resale of Securities, s. 2.14.
National Instrument 45-106 Prospectus and Registration Exemptions, s. 2.24.
March 6, 2015
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 SCHNEIDER ELECTRIC S.E. (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 (the "Legislation") for:
1. 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 Units") of an FCPE (as defined below) named Schneider Actionnariat Mondial (the "Principal Classic FCPE"), which is 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; and
(ii) units (together with the Principal Classic Units, the "Units") of a temporary FCPE named Schneider Relais International 2015 (the "Temporary Classic FCPE"), which will merge with the Principal Classic FCPE following the WESOP (as defined below) as further described in paragraph 13 of the Representations,
made pursuant to the WESOP 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, Nova Scotia and Newfoundland and Labrador (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 Principal Classic FCPE and/or the Temporary Classic FCPE to or with Canadian Participants upon the redemption of Units thereof as requested by Canadian Participants;
2. an exemption from the dealer registration requirements of the Legislation (the "Registration Relief") so that such requirements do not apply to the Schneider Electric Group (as defined below and which, for clarity, includes the Filer and the Local Affiliates (as defined below)), the Temporary Classic FCPE, the Principal Classic FCPE and NATIXIS Asset Management (the "Management Company") in respect of:
(a) trades in Units made pursuant to the WESOP to or with Canadian Employees; and
(b) trades in Shares by the Temporary Classic FCPE and/or the Principal Classic FCPE 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 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, Nova Scotia and Newfoundland and Labrador.
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:
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 under 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 NYSE Euronext Paris. The Filer is not in default under the Legislation or under the securities legislation of any other jurisdiction of Canada.
2. The Filer carries on business in Canada through certain affiliated companies that employ Canadian Employees, including Control Microsystems Inc., Invensys Canada Inc., Invensys Systems Canada Inc., Juno Lighting, Limited, Power Measurement Ltd., Schneider Electric Canada Inc., Schneider Electric IT Corporation, Telvent Canada Ltd., Telvent DTN, LLC, and Viconics Technologies Inc. (collectively, the "Local Affiliates," together with the Filer and other affiliates of the Filer, the "Schneider Electric Group"). None of the Local Affiliates is in default under the Legislation or the securities legislation of any other jurisdiction of Canada.
3. Each of the Local Affiliates is a direct or indirect-controlled subsidiary of the Filer and is not, and has no current intention of becoming, a reporting issuer under the Legislation or under the securities legislation of any other jurisdiction of Canada. The Canadian headquarters of the Schneider Electric Group are in Ontario, there are more assets of the Schneider Electric Group in Ontario than in any other jurisdiction of Canada and there are more clients of the Schneider Electric Group in Ontario than in any other jurisdiction of Canada.
4. As of the date hereof and after giving effect to the WESOP, 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 Principal Classic FCPE and the Temporary Classic FCPE 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.
5. The Filer has established a global employee share offering for employees of the Schneider Electric Group (the "World Employee Share Ownership Plan" or "WESOP"). The WESOP involves an offering of Shares to be subscribed through the Principal Classic FCPE via the Temporary Classic FCPE (as further described in paragraph 13) (the "Classic Plan").
6. Only persons who are employees of a member of the Schneider Electric Group until the end of the subscription period for the WESOP and who meet other employment criteria (the "Qualifying Employees") will be allowed to participate in the WESOP.
7. The Temporary Classic FCPE has been established for the purpose of implementing the WESOP. The Principal Classic FCPE has been established for the purpose of implementing employee share offerings of the Filer, generally. There is no current intention for either the Principal Classic FCPE or the Temporary Classic FCPE to become a reporting issuer under the Legislation or the securities legislation of any other jurisdiction of Canada.
8. Each of the Temporary Classic FCPE and the Principal Classic FCPE is an FCPE 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 FCPE 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 WESOP.
9. All Units acquired pursuant to the WESOP 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, provided for in the Schneider Electric International Employee Shareholding Plan and adopted under the Classic Plan in Canada (such as a release on death or termination of employment, or the exception that the Canadian Participant's employer ceases to be an affiliate of the Filer).
10. Under the Classic Plan, Canadian Participants will subscribe for Units in the Temporary Classic FCPE, and the Temporary Classic FCPE will then subscribe for Shares on behalf of Canadian Participants using the Canadian Participants' contributions and the employer contributions from Local Affiliates that employ the Canadian Participants, as described in paragraph 11. The subscription price will be the Canadian dollar equivalent equal to the average of the opening price of the Shares (expressed in Euros) on NYSE Euronext Paris on the 20 trading days preceding the date of fixing of the subscription price by the Management Board of the Filer, less a 20% discount.
11. As indicated above, the Local Affiliate employing a Canadian Participant will also contribute on behalf of such Canadian Participant an amount into the Classic Plan. For each contribution that a Canadian Participant makes into the Classic Plan up to and including the Canadian dollar equivalent of 1,000 Euros, the Local Affiliate employing such Canadian Participant will contribute an additional 100% of such amount into the Classic Plan on behalf of such Canadian Participant. For the portion of each contribution that a Canadian Participant makes that is equal to or greater than the Canadian dollar equivalent of 1,001 Euros and up to and including the Canadian dollar equivalent of 1,800 Euros, the Local Affiliate employing such Canadian Participant will contribute an additional 50% of such amount into the Classic Plan on behalf of such Canadian Participant.
12. For clarity, the maximum contribution by a Local Affiliate in respect of a Canadian Participant is the Canadian dollar equivalent of 1,400 Euros (i.e., 100% of the Canadian dollar equivalent of first 1,000 Euros contribution and 50% of the Canadian dollar equivalent of the next 800 Euros contribution).
13. 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 WESOP, the Temporary Classic FCPE will be merged with the Principal Classic FCPE (subject to the approval of the supervisory board of the FCPEs and the French AMF). Units of the Temporary Classic FCPE held by Canadian Participants will be replaced with Units of the Principal Classic FCPE on a pro rata basis and the Shares subscribed for under the WESOP will be held in the Principal Classic FCPE (the "Merger").
14. The term "Classic FCPE" used herein means, prior to the Merger, the Temporary Classic FCPE, and following the Merger, the Principal Classic FCPE.
15. 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 FCPE in consideration for a cash payment equal to the then market value of the Shares, or
(b) continue to hold Units in the Classic FCPE and request the redemption of those Units at a later date in consideration for a cash payment equal to the then market value of the Shares.
Subject to certain changes in the regulations of the Classic FCPE which may be made, a Canadian Participant may be permitted to request the redemption of his or her Units in the Classic FCPE in consideration for the underlying Shares (instead of a cash payment) at or after the end of the Lock-Up Period.
16. In the event of an early unwind resulting from the Canadian Participant exercising one of the exceptions to the Lock-Up Period and meeting the applicable criteria, a Canadian Participant may request the redemption of Units in the Classic FCPE in consideration for a cash payment equal to the then market value of the underlying Shares.
17. Dividends paid on the Shares held in the Classic FCPE will be contributed to the Classic FCPE and used to purchase additional Shares. To reflect this reinvestment, no new Units will be issued. Instead, the reinvestment will increase the asset base of the Classic FCPE as well as the value of the Units held by Canadian Participants.
18. The subscription price will not be known to Canadian Employees until after the end of the subscription period. However, this information will be provided to Canadian Employees prior to the start of the revocation period, during which Canadian Participants may choose to revoke all (but not part) of their subscription under the Classic Plan and thereby not participate in the WESOP.
19. Each of the Temporary Classic FCPE and the Principal Classic FCPE is an FCPE, which is a limited liability entity under French law. The portfolio of each of the Principal Classic FCPE and the Temporary Classic FCPE 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 Shares and for the purposes of Unit redemptions.
20. 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 investments 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 under the Legislation or the securities legislation of any other jurisdiction of Canada.
21. The Management Company's portfolio management activities in connection with the WESOP and the Principal Classic FCPE and the Temporary Classic FCPE are limited to subscribing for Shares from the Filer, selling such Shares as necessary in order to fund redemption requests and investing available cash in cash equivalents.
22. 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 FCPE 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 other jurisdiction of Canada.
23. Shares issued pursuant to the WESOP will be deposited in the Classic FCPE through CACEIS Bank (the "Depositary"), a large French commercial bank subject to French banking legislation.
24. 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 and Finance 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 FCPE and the Temporary Classic FCPE to exercise the rights relating to the securities held in its respective portfolio.
25. The Unit value of the Classic FCPE will be calculated and reported to the French AMF on a regular basis, based on the net assets of the Classic FCPE divided by the number of Units outstanding. The value of Classic FCPE Units will be based on the value of the underlying Shares, but the number of Units of the Classic FCPE will not correspond to the number of the underlying Shares (e.g., dividends will be reinvested in additional Shares and increase the value of each Unit).
26. All management charges relating to the Classic FCPE will be paid from the assets of the Classic FCPE or by the Filer, as provided in the regulations of the Classic FCPE.
27. Participation in the WESOP is voluntary, and the Canadian Employees will not be induced to participate in the WESOP by expectation of employment or continued employment.
28. The total amount that may be invested by a Canadian Employee pursuant to the WESOP cannot exceed 25% of his or her gross annual compensation for the 2014 calendar year. Notwithstanding the foregoing, the employer of a Canadian Employee shall have the discretion to permit a Canadian Employee to use his or her estimated gross annual compensation for the 2015 calendar year instead of actual 2014 gross annual compensation for the above-mentioned limits.
29. None of the Filer, the Management Company, the Local Affiliates or any of their directors, officers, employees, agents or representatives will provide investment advice to the Canadian Employees with respect to an investment in the Shares or the Units.
30. The Canadian Employees will receive an information package in the French or English language, according to their preference, which will include a summary of the terms of the WESOP and a description of Canadian income tax consequences of subscribing for and holding Units of the Classic FCPE and requesting the redemption of such Units at the end of the applicable Lock-Up Period. These documents will be available in both English and French.
31. Canadian Participants will have access to the Filer's French Document de Référence filed with the French AMF in respect of the Shares and a copy of the rules of the Temporary Classic FCPE and the Principal Classic FCPE. 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.
32. Canadian Participants will receive an initial statement of their holdings under the Classic Plan, together with an updated statement at least once per year.
33. There are approximately 2,972 Canadian Employees resident in the provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, New Brunswick, Nova Scotia and Newfoundland and Labrador (with the greatest number, approximately 749, 730, 730 and 694, resident in Quebec, British Columbia, Alberta and Ontario, respectively), who represent, in the aggregate, less than 3% of the number of employees in the Schneider Electric Group worldwide.
34. The Shares and 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.
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 an exchange, or a market, outside of Canada, or
(ii) to a person or company outside of Canada.
"Edward P. Kerwin"
Commissioner
Ontario Securities Commission
"Deborah Leckman"
Commissioner
Ontario Securities Commission