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AXA S.A. - MRRS Decision
Headnote
Mutual Reliance Review System for ExemptiveRelief Applications - relief granted to certain vice presidentsof a reporting issuer from the insider reporting requirementssubject to certain conditions.
Statutes Cited
Securities Act, R.S.O. 1990, c. S.5, as am.,ss. 1(1), 107, 108, 121(2)(a)(ii).
Regulations Cited
Regulation made under the Securities Act, R.R.O.1990, Reg. 1015, as am., Part VIII.
Rules Cited
National Instrument 55-101 - Exemption FromCertain Insider Reporting Requirements.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
BRITISH COLUMBIA, ALBERTA,MANITOBA, ONTARIO,
QUÉBEC, NEW BRUNSWICK,NEWFOUNDLAND AND LABRADOR
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
AXA S.A.
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker")in each of British Columbia, Alberta, Manitoba, Ontario, Québec,New Brunswick and Newfoundland and Labrador (collectively, the"Jurisdictions") has received an applicationfrom AXA S.A. (the "Filer") for a decisionunder the securities legislation (the "Legislation")of the Jurisdictions that:
(i) the prospectus requirements containedin the Legislation shall not apply to certain trades in units("Units") of the AXA Actionnariat II Fund(the "Classic Fund") and the AXA Plan 2003Global Fund (the "Leveraged Fund" and, togetherwith the Classic Fund, the "Funds") madepursuant to the Employee Share Offering (as defined below)to or with Qualifying Employees (as defined below) residentin the Jurisdictions who elect to participate in the EmployeeShare Offering (the "Canadian Participants");
(ii) the registration requirements containedin the Legislation shall not apply to trades in Units of theClassic Fund to or with Canadian Participants, nor to tradesin Units of the Leveraged Fund to or with Canadian Participantsnot resident in Ontario or Manitoba;
(iii) the registration and prospectus requirementsshall not apply to the trades of ordinary shares of the Filer(the "Shares") by the Funds to Canadian Participantsupon the redemption of Units by Canadian Participants, norto the issuance of Units of the Classic Fund to holders ofLeveraged Fund Units upon the transfer of the assets of theLeveraged Fund to the Classic Fund at the end of the Lock-UpPeriod (as defined below);
(iv) the registration and prospectus requirementsshall not apply to the first trade in any Shares acquiredby Canadian Participants under the Employee Share Offeringwhere such trade is made through the facilities of a stockexchange outside of Canada; and
(v) the manager of the Funds, AXA GestionIntéressement (the "Manager") is exemptfrom the adviser registration requirements contained in theLegislation to the extent that its activities in relationto the Employee Share Offering require compliance with suchrequirements.
AND WHEREAS under the Mutual RelianceReview System for Exemptive Relief Applications (the "System"),the Commission des valeurs mobilières du Québecis the principal regulator for this application;
AND WHEREAS, unless otherwise defined,the terms herein have the meaning set out in National Instrument14-101 Definitions or in Québec Commission Notice 14-101;
AND WHEREAS the Filer has representedto the Decision Makers that:
1. The Filer is a corporation formed underthe laws of France. It is not and has no intention of becominga reporting issuer (or equivalent) under the Legislation.The Shares are listed on Euronext Paris and on the New YorkStock Exchange (in the form of American Depositary Shares).
2. The Filer carries on business in Canadathrough the following affiliated companies: AXA AssurancesInc., AXA Canada Inc., AXA Insurance (Canada), AXA PacificInsurance Company, Insurance Corporation of Newfoundland Limited,AXA Assistance Canada Inc., AXA RE, and AXA Corporate SolutionsAssurance (the "Canadian Affiliates", togetherwith the Filer and other affiliates of the Filer, the "AXAGroup"). Each of the Canadian Affiliates is a director indirect controlled subsidiary of the Filer and is not,and has no intention of becoming, a reporting issuer (or equivalent)under the Legislation.
3. The Filer has established a worldwide stockpurchase plan for employees of the AXA Group (the "EmployeeShare Offering") which is comprised of two subscriptionoptions: (i) an offering of Shares to be subscribed throughthe Classic Fund (the "Classic Plan"); and(ii) an offering of Shares to be subscribed through the LeveragedFund (the "Leveraged Plan").
4. Only persons who are employees of a memberof the AXA Group at the time of the Employee Share Offering(the "Employees"), or persons who have retiredfrom an affiliate of the AXA Group and who continue to holdunits in French investment funds (fonds communs de placementd'entreprise or "FCPEs") in connection withprevious employee share offerings by the Filer (the "RetiredEmployees" and, together with the Employees, the"Qualifying Employees") will be invited toparticipate in the Employee Share Offering.
5. The Funds were established for the purposesof implementing the Employee Share Offering.
6. The Funds are not and have no intentionof becoming reporting issuers under the Legislation.
7. The Funds are collective shareholding vehiclesof a type commonly used in France for the conservation orcustodianship of shares held by employee investors. Only QualifyingEmployees will be allowed to hold Units of the Funds in anamount proportionate to their respective investments in theFunds.
8. Under French law, all Units acquired inthe Employee Share Offering will be subject to a hold periodof approximately five years (the "Lock-Up Period"),subject to certain exceptions prescribed by French law (suchas a release on death or termination of employment). At theend of the Lock-Up Period, a Canadian Participant may:
(i) redeem Units: (a) in the Classic Fundin consideration for the underlying Shares or a cash paymentequal to the then market value of the Shares, or (b) inthe Leveraged Fund according to the Redemption Formula (describedbelow), to be settled by delivery of the number of Sharesequal to such amount or the cash equivalent, or
(ii) continue to hold Units in the ClassicFund and redeem those Units at a later date (as explainedbelow, at the end of the Lock-Up Period, holders of Unitsin the Leveraged Fund who do not redeem their Units willreceive Units in the Classic Fund).
9. In the event of an early unwind resultingfrom the Canadian Participant satisfying one of the exceptionsto the Lock-Up Period prescribed by French law, a CanadianParticipant may redeem Units: (a) from the Classic Fund inconsideration for the underlying Shares or a cash paymentequal to the then market value of the Shares, or (b) fromthe Leveraged Fund using the Redemption Formula (describedbelow), but using the market value of the Shares at the timeof unwind to measure the increase, if any, from the ReferencePrice (described below).
10. Under the Classic Plan, Canadian Participantswill subscribe for Units in the Classic Fund, which will subscribefor Shares on behalf of the Canadian Participants, at a subscriptionprice that is equal to the average of the opening price ofthe Shares on the 20 trading days ending on the date of approvalof the Employee Share Offering by the board of directors ofthe Filer (the "Reference Price"), less a20% discount. Dividends paid on the Shares held in the ClassicFund will be capitalized and Canadian Participants may becredited with additional Units.
11. Under the Leveraged Plan, Canadian Participantswill subscribe for Units in the Leveraged Fund, and the LeveragedFund will then subscribe for Shares using the Employee Contribution(as described below) and certain financing made availableby a French financial institution governed by French law (the"Bank").
12. As with the Classic Plan, Canadian Participantsin the Leveraged Plan enjoy the benefit of a 20% discountin the Reference Price. Under the Leveraged Plan, the CanadianParticipants effectively receive a share appreciation entitlementin the increase in value, if any, of the Shares financed bythe Bank Contribution (as described below).
13. Participation in the Leveraged Plan representsan opportunity for Qualifying Employees potentially to obtainsignificantly higher gains than would be available throughparticipation in the Classic Plan, by virtue of the QualifyingEmployee's indirect participation in a financing arrangementinvolving a swap agreement (the "Swap Agreement")between the Leveraged Fund and the Bank. In economic terms,the Swap Agreement effectively involves the following exchangeof payments: for each Share which may be subscribed for bythe Qualifying Employee's contribution (the "EmployeeContribution") under the Leveraged Plan at the ReferencePrice less the 20% discount, the Bank will lend to the LeveragedFund (on behalf of the Canadian Participant) an amount sufficientto enable the Leveraged Fund (on behalf of the Canadian Participant)to subscribe for an additional nine Shares (the "BankContribution") at the Reference Price less the 20%discount.
14. Under the terms of the Swap Agreement,at the end of the Lock-Up Period (the "SettlementDate"), the Leveraged Fund will owe to the Bank anamount equal to the market value of the Shares held in thatFund, less
(i) 100% of the Employee Contributions;and
(ii) an amount equal to approximately 62.5%of the increase, if any, in the market price of the Sharesfrom the Reference Price (the "Appreciation Amount").
15. If, at the Settlement Date, the marketvalue of the Shares held in the Leveraged Fund is less than100% of the Employee Contributions, the Bank will, pursuantto a guarantee agreement, make a cash contribution to theLeveraged Fund to make up any shortfall.
16. At the end of the Lock-Up Period, theSwap Agreement will terminate after the making of final swappayments and a Canadian Participant may redeem his or herLeveraged Fund Units in consideration for a payment of anamount equal to the value of the Canadian Participant's EmployeeContribution and the Canadian Participant's portion of theAppreciation Amount, if any, to be settled by delivery ofsuch number of Shares equal to such amount or the cash equivalentof such amount (the "Redemption Formula").Following these redemptions, all assets (including Shares)remaining in the Leveraged Fund will be transferred to theClassic Fund. New Units of the Classic Fund will be issuedto the applicable Canadian Participants in recognition ofthe assets transferred to the Classic Fund. The Canadian Participantsmay redeem the new Units whenever they wish.
17. Under no circumstances will a CanadianParticipant in the Leveraged Fund be entitled to receive lessthan 100% of his or her Employee Contribution at the end ofthe Lock-Up Period, nor be liable for any other amounts.
18. Under French law, the Funds, as FCPEs,are limited liability entities. The risk statement providedto Canadian Participants will confirm that, under no circumstances,will a Canadian Participant in the Leveraged Plan be liableto any of the Leveraged Fund, the Bank or the Filer for anyamounts in excess of his or her Employee Contribution underthe Leveraged Plan.
19. During the term of the Swap Agreement,dividends paid on the Shares held in the Leveraged Fund willbe remitted to the Leveraged Fund, and the Leveraged Fundwill remit an equivalent amount to the Bank as partial considerationfor the obligations assumed by the Bank under the Swap Agreement.
20. For Canadian federal income tax purposes,the Canadian Participants in the Leveraged Fund will be deemedto receive all dividends paid on the Shares financed by eitherthe Employee Contribution or the Bank Contribution, at thetime such dividends are paid to the Leveraged Fund, notwithstandingthe actual non-receipt of the dividends by the Canadian Participantsby virtue of the terms of the Swap Agreement. Consequently,Canadian Participants will be required to fund the tax liabilitiesassociated with the dividends from their own resources.
21. The declaration of dividends on the Sharesremains at the sole discretion of the board of directors ofthe Filer. The Filer has not made any commitment to the Bankas to any minimum payment in respect of dividends.
22. To respond to the fact that, at the timeof the initial investment decision relating to participationin the Leveraged Plan, Canadian Participants will be unableto quantify their potential income tax liability resultingfrom such participation, the Filer will indemnify each CanadianParticipant in the Leveraged Plan for all tax costs to theCanadian Participants associated with the payment of dividendsin excess of a specified amount of euros per Share duringthe Lock-Up Period such that, in all cases, a Canadian Participantwill, at the time of the original investment decision, beable to quantify, with certainty, his or her maximum tax liabilityin connection with dividends received by the Leveraged Fundon his or her behalf under the Leveraged Plan.
23. At the time the Canadian Participant'sobligations under the Swap Agreement are settled, the CanadianParticipant will realize a capital gain (or capital loss)by virtue of having participated in the Swap Agreement tothe extent that amounts received by the Leveraged Fund, onbehalf of the Canadian Participant, from the Bank exceed (orare less than) amounts paid by the Leveraged Fund, on behalfof the Canadian Participant to the Bank. To the extent thatdividends on Shares that are deemed to have been receivedby a Canadian Participant are paid by the Fund on behalf ofthe Canadian Participant to the Bank, such payments will reducethe amount of any capital gain (or increase the amount ofany capital loss) to the Canadian Participant under the SwapAgreement. Capital losses (gains) realized by a Canadian Participantunder the Swap Agreement may be offset against (reduced by)any capital gains (losses) realized by the Canadian Participanton a disposition of the Shares, in accordance with the rulesand conditions under the Income Tax Act (Canada) orcomparable provincial legislation (as applicable).
24. The Manager, AXA Gestion Intéressement,is a portfolio management company governed by the laws ofFrance. The Manager is registered with the French Commissiondes Opérations de Bourse (the "COB")to manage French investment funds and complies with the rulesof the COB. The Manager is not and has no intention of becominga reporting issuer under the Legislation.
25. The Manager's portfolio management activitiesin connection with the Employee Share Offering and the Fundsare limited to subscribing for Shares from the Filer, sellingsuch Shares as necessary in order to fund redemption requests,and such activities as may be necessary to give effect tothe Swap Agreement.
26. The Manager is also responsible for preparingaccounting documents and publishing periodic informationaldocuments as provided by the rules of each Fund. The Manager'sactivities in no way affect the underlying value of the Shares.
27. Shares issued in the Employee Share Offeringwill be deposited in the relevant Fund through BNP ParibasSecurities Services (the "Depositary"), alarge French commercial bank subject to French banking legislation.
28. Under French law, the Depositary mustbe selected by the Manager from among a limited number ofcompanies identified on a list by the French Minister of theEconomy, and its appointment must be approved by the COB.The Depositary carries out orders to purchase, trade and sellsecurities in the portfolio and takes all necessary actionto allow each Fund to exercise the rights relating to thesecurities held in its portfolio.
29. Canadian Participants will not be inducedto participate in the Employee Share Offering by expectationof employment or continued employment.
30. The total amount invested by a CanadianParticipant in the Employee Share Offering, including anyBank Contribution, cannot exceed 25% of his or her estimatedgross annual compensation for 2003, or for his or her lastyear of employment, as the case may be, although a lower limitmay be established by the Canadian Affiliates.
31. None of the Filer, the Manager, the CanadianAffiliates or any of their employees, agents or representativeswill provide investment advice to the Qualifying Employeeswith respect to an investment in the Units.
32. The Filer will retain a securities dealerregistered as a broker/investment dealer under the Legislationof Ontario and Manitoba (the "Registrant")to provide advisory services to Canadian Participants residentin Ontario or Manitoba who express interest in the LeveragedPlan and to make a determination, in accordance with industrypractices, as to whether an investment in the Leveraged Planis suitable for each such Canadian Participant based on hisor her particular financial circumstances. The Registrantwill establish accounts for, and will receive the initialaccount statements from the Leveraged Fund on behalf of, suchCanadian Participants. The Units of the Leveraged Fund willbe issued by the Leveraged Fund to Canadian Participants residentin Ontario or Manitoba solely through the Registrant.
33. Units of the Leveraged Fund will be evidencedby account statements issued by the Leveraged Fund.
34. The Canadian Participants will receivean information package in the French or English language,as applicable, which will include a summary of the terms ofthe Employee Share Offering, a tax notice relating to therelevant Fund containing a description of Canadian incometax consequences of subscribing to and holding the Units inthe Funds and redeeming Units for cash or Shares at the endof the Lock-Up Period. The information package for CanadianParticipants in the Leveraged Plan will also include a riskstatement which will describe certain risks associated withan investment in Units pursuant to the Leveraged Plan, anda tax calculation document which will illustrate the generalCanadian federal income tax consequences of participatingin the Leveraged Plan.
35. Upon request, Canadian Participants mayreceive copies of the Filer's annual report on Form 20-F filedwith the United States Securities and Exchange Commission(the "SEC") and/or the French Documentde Référence filed with the COB in respectof the Shares and a copy of the relevant Fund's rules (whichare analogous to company by-laws). The Canadian Participantswill also receive copies of the continuous disclosure materialsrelating to the Filer furnished to AXA shareholders generally.
36. It is not expected that there will beany market for the Units or Shares in Canada.
37. There are approximately 1,884 Employeesresident in Canada, in the provinces of Québec (1,211),Ontario (377), British Columbia (138), Alberta (95), Newfoundlandand Labrador (50), New Brunswick (9) and Manitoba (4), whorepresent in the aggregate approximately 2% of the numberof Employees worldwide.
38. There are approximately 24 eligible RetiredEmployees resident in Canada, in the provinces of Québec(15), Ontario (7), and British Columbia (2), for a total of1,908 Qualifying Employees resident in Canada.
39. As of the date hereof and after givingeffect to the Employee Share Offering, Canadian residentsdo not and will not beneficially own (which term, for thepurposes of this paragraph, is deemed to include all Sharesheld by the Funds on behalf of Canadian Participants) morethan 10% of the Shares and do not and will not represent innumber more than 10% of the total number of holders of theShares as shown on the books of the Filer.
AND WHEREAS under the System, this MRRSDecision Document evidences the decision of each Decision Maker(collectively, the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Maker with the jurisdiction to make theDecision has been met;
THE DECISION of the Decision Makers underthe Legislation is that:
(a) the prospectus requirements shall notapply to trades in Units of the Funds made pursuant to theEmployee Share Offering to or with the Canadian Participants,provided that the first trade in Units acquired by CanadianParticipants pursuant to this Decision, in a Jurisdiction,shall be deemed a distribution or a primary distribution tothe public under the Legislation of such Jurisdiction;
(b) the registration requirements shall notapply to:
(i) trades in Units of the Classic Fundmade pursuant to the Employee Share Offering to or withCanadian Participants; and
(ii) trades in Units of the Leveraged Fundmade pursuant to the Employee Share Offering to or withCanadian Participants not resident in Ontario and Manitoba;
(c) the registration and prospectus requirementsshall not apply to:
(i) trades of Shares by the Funds to CanadianParticipants upon the redemption of Units by Canadian Participantspursuant to the Employee Share Offering; and
(ii) the issuance of Units of the ClassicFund to holders of Leveraged Fund Units upon the transferof the assets of the Leveraged Fund to the Classic Fund;
provided that, the first trade in any suchShares or Units acquired by a Canadian Participant pursuantto this Decision, in a Jurisdiction, shall be deemed a distributionor a primary distribution to the public under the Legislationof such Jurisdiction;
(d) the registration and prospectus requirementsshall not apply to the first trade in any Shares acquiredby a Canadian Participant under the Employee Share Offeringprovided that such trade is:
(i) made through a person or company who/whichis appropriately licensed to carry on business as a broker/dealer(or the equivalent) under the applicable securities legislationin the foreign jurisdiction where the trade is executed;and
(ii) executed through the facilities ofa stock exchange outside of Canada; and
(e) the Manager shall be exempt from the adviserregistration requirements, where applicable, in order to carryout the activities described in paragraphs 25 and 26 hereof.
November 3, 2003.
"Josée Deslauriers"