Securities Law & Instruments

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Dual application for Exemptive Relief -- 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, R.S.O. 1990, c. S.5, as am., ss. 25, 53, 74.

National Instrument 45-106 Prospectus Exemptions, s. 2.24.

National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations, s. 8.16.

National Instrument 45-102 Resale of Securities, s. 2.14.

TRANSLATION

May 10, 2016

IN THE MATTER OF THE SECURITIES LEGISLATION OF QUÉBEC AND ONTARIO (THE "FILING JURISDICTIONS") AND IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS AND IN THE MATTER OF VINCI S.A. (THE "FILER")

DECISION

Background

The securities regulatory authority or regulator in each of the Filing Jurisdictions (each a "Decision Maker") has received an application from the Filer for a decision under the securities legislation of the Filing Jurisdictions (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 Castor International (the "Principal Classic Fund"), a fonds commun de placement d'entreprise or "FCPE", a form of collective shareholding vehicle commonly used in France for the conservation and custodianship of shares held by employee-investors; and

(ii) units (the "Temporary Classic Units" and, together with the Principal Classic Units, the "Units") of a temporary FCPE named Castor International Relais 2016 (the "Temporary Classic Fund") which will merge with the Principal Classic Fund following the completion of the Employee Share Offering (as defined below), such transaction being referred to as the "Merger", as further described below (the term "Classic Fund" used herein means, prior to the Merger, the Temporary Classic Fund and, following the Merger, the Principal Classic Fund);

made pursuant to the Employee Share Offering to or with Qualifying Employees (as defined below) resident in the Filing Jurisdictions and in British Columbia, Alberta and Saskatchewan (collectively, the "Canadian Employees") who elect to participate in the Employee Share Offering (such Canadian Employees who subscribe for the Units are referred to herein as the "Canadian Participants"); and

(b) trades in 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;

2. an exemption from the dealer registration requirements of the Legislation (the "Registration Relief") so that such requirements do not apply to the VINCI Group (as defined below), the Classic Fund and the Management Company (as defined below) in respect of:

(a) trades in Units made pursuant to the Employee Share 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 "Offering Relief").

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,

(b) the Filer has provided notice that section 4.7(1) of Regulation 11-102 respecting Passport System ("Regulation 11-102") is intended to be relied upon in British Columbia, Alberta and Saskatchewan (the "Other Offering Jurisdictions" and, together with the Filing Jurisdictions, the "Jurisdictions"), and

(c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority in Ontario.

Interpretation

Terms defined in Regulation 14-101 respecting Definitions, Regulation 45-102 respecting Resale of Securities, Regulation 45-106 respecting Prospectus Exemptions and Regulation 11-102 have the same meaning if 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 the securities legislation of the Other Offering Jurisdictions. The head office of the Filer is located in France and the Shares are listed on Euronext.

2. The Filer has established a global employee share offering (the "Employee Share Offering") for Qualifying Employees (as defined below) and its participating affiliates, including affiliates that employ Canadian Employees (collectively, the "Canadian Affiliates" and, together with the Filer and other affiliates of the Filer, the "VINCI Group"), including B.A. Blacktop Ltd, Carmacks Enterprises Ltd, Construction DJL Inc, Agra Foundations Limited, Bermingham Construction Ltd, Freyssinet Canada Ltee, Geopac Inc, Reinforced Earth Company Ltd, Janin Atlas Inc, Asphalte Trudeau Ltee, Pavage Rolland Fortier Inc, Location Rolland Fortier Inc, Groupe Lechasseur, Eurovia Québec Grands projets, Eurovia Québec CSP, Eurovia Québec Construction, Freycan Major Projects Ltd, Lacbec Incorporate, Graviere St Francois (1990) Inc, Eurovia Canada Inc, Martens Asphalt Ltd, Coquitlam Ridge Constructors, Two Crossings Maintenance Services Ltd, Carmacks Industrial Ltd, Carmacks Maintenance Services Ltd, Pico Envirotec Inc and Vinci Infrastructure Canada Ltd. Each of the Canadian 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 the securities legislation of the Other Offering Jurisdictions. The largest number of employees of the VINCI Group in Canada reside in Québec.

3. As of the date hereof and after giving effect to the Employee Share Offering, Canadian residents do not and will not beneficially own more than 10% of the Shares (which term, for the purposes of this paragraph, is deemed to include all Shares held by the Classic Fund on behalf of Canadian Participants) issued and outstanding, and do not and will not represent in number more than 10% of the total number of holders of Shares as shown on the books of the Filer.

4. The Employee Share Offering involves an offering of Shares to be subscribed through the Temporary Classic Fund, which Temporary Classic Fund will be merged with the Principal Classic Fund following completion of the Employee Share Offering (the "Classic Plan").

5. Only persons who are employees of a member of the VINCI Group during the subscription period for the Employee Share Offering and who meet other minimum employment criteria (the "Qualifying Employees") will be allowed to participate in the Employee Share Offering.

6. The Temporary Classic Fund and the Principal Classic Fund were established for the purpose of implementing employee share offerings of the Filer. There is no current intention for any of the Temporary Classic Fund or the Principal Classic Fund to become a reporting issuer under the Legislation or the securities legislation of the Other Offering Jurisdictions.

7. The Temporary Classic Fund and the Principal Classic Fund are French FCPEs. The Temporary Classic Fund and the Principal Classic Fund are registered with, and approved by, the Autorité des marchés financiers in France (the "French AMF").

8. Under the Employee Share Offering:

(a) Canadian Participants will subscribe for Temporary Classic Units and the Temporary Classic Fund will subscribe for Shares, on behalf of the Canadian Participants and using their contribution, at a subscription price that is equal to the arithmetical average of the volume-weighted average Share price (expressed in Euros) on Euronext on the 20 trading days preceding the start of the subscription period (the "Subscription Price").

(b) Initially, the Shares will be held in the Temporary Classic Fund and the Canadian Participants will receive Temporary Classic Units representing the subscription of Shares.

(c) After completion of the Employee Share Offering, the Temporary Classic Fund will be merged with the Principal Classic Fund (subject to the approval of the supervisory board of the FCPEs and the French AMF). Temporary Classic Units held by Canadian Participants will be replaced with Principal Classic Units on a pro rata basis and the Shares subscribed for under the Classic Plan will be held in the Principal Classic Fund (such transaction being referred to as the "Merger").

(d) The Units will be subject to a hold period of approximately three years (the "Lock-Up Period"), subject to certain exceptions prescribed by the rules of the International Group Share Ownership Plan of VINCI Group and adopted under the Employee Share Offering in Canada (such as a release on death, disability or termination of employment).

(e) Any dividends paid on the Shares held in the Classic Fund will be contributed to the Classic Fund and used to purchase additional Shares. To reflect this reinvestment, the regulations of the Classic Fund provide that new Units (or fractions thereof) will be issued to the Canadian Participants.

(f) At the end of the 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 corresponding 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 corresponding to the then market value of the Shares.

(g) In the event of an early unwind resulting from the Canadian Participant exercising one of certain exceptions to the Lock-Up Period and meeting the applicable criteria, a Canadian Participant may request the redemption of Units in the Classic Fund in consideration for a cash payment corresponding to the then market value of the underlying Shares.

(h) In addition, the Employee Share Offering provides that the Filer will grant to Canadian Participants a conditional right to receive additional Shares at the end of the Lock-Up Period, free of charge ("Bonus Shares"). The number of Bonus Shares which a Canadian Participant is eligible to receive will be determined according to the following matching schedule:

Canadian Participant's Subscription

Matching Ratio

 

1-10 Shares

2 Bonus Shares for each Share subscribed

 

Next 30 Shares (i.e., the 11th to 40th Share subscribed for)

1 Bonus Share for each Share subscribed

 

Next 60 Shares (i.e., the 41st to 100th Share subscribed for)

1 Bonus Share for each 2 Shares subscribed

 

Any further Shares starting from the 101st Share subscribed for

No additional Bonus Shares

(i) Under the matching schedule, a Canadian Participant who subscribed for 100 or more Shares would receive a maximum of 80 Bonus Shares. The right to receive Bonus Shares is generally subject to the condition that the Canadian Participant is employed by a member of the VINCI Group at the end of the Lock-Up Period and holds Units until that time. If these conditions are satisfied, Bonus Shares will be delivered directly to the Canadian Participant or to the Classic Fund on behalf of the Canadian Participant (in which case, additional Units reflecting this will be issued to the Canadian Participant), or sold if requested by the Canadian Participant. If the vesting conditions are not met, the Canadian Participant will lose his or her entitlement to Bonus Shares. However, in certain good leaver events, the loss of entitlement to Bonus Shares is compensated by a cash payment.

9. 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.

10. The manager of the Temporary Classic Fund and of the Principal Classic Fund, AMUNDI (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. The Management Company is not, and has no current intention of becoming, a reporting issuer under the Legislation or the securities legislation of the Other Offering Jurisdictions.

11. The Management Company's portfolio management activities in connection with the Employee Share Offering and the Classic Fund are limited to acquiring Shares and selling such Shares as necessary in order to fund redemption requests and investing available cash in cash equivalents.

12. The Management Company is also responsible for preparing accounting documents and publishing periodic informational documents of the Classic Fund. The Management Company is obliged to act exclusively in the best interests of the Canadian Participants and is liable to them, jointly and severally with the Depositary, 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. The Management Company's activities will not affect the underlying value of the Shares.

13. None of the entities forming part of VINCI Group, the Classic Fund or the Management Company or any of their respective directors, officers, employees, agents or representatives will provide investment advice to the Canadian Employees with respect to investments in the Shares or the Units or to the Canadian Participants with respect to the holding or redemption of their Units.

14. Shares issued pursuant to the Employee Share Offering will be deposited in the Classic Fund through CACEIS Bank France (the "Depositary"), a large French commercial bank subject to French banking legislation.

15. Under French law, the Depositary must be selected by the Management Company from 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 assets in the portfolio and takes all necessary action to allow each of the Temporary Classic Fund and the Principal Classic Fund to exercise the rights relating to the assets held in their respective portfolios.

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

17. The total amount that may be invested by a Canadian Employee in the Employee Share Offering cannot exceed 25% of his or her estimated gross annual compensation for 2016. The value of Bonus Shares is not included in this calculation.

18. The Shares are not currently listed for trading on any stock exchange in Canada and the Filer has no intention to have the Shares so listed. As there is no market for the Shares in Canada, and as none is expected to develop, any first trades of Shares by Canadian Participants will be effected through the facilities of, and in accordance with, the rules and regulations of Euronext. The Units will not be listed for trading on any stock exchange.

19. Canadian Employees may request and Canadian Participants 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 Employee Share Offering and a description of Canadian income tax consequences of subscribing to and holding the Units and requesting the redemption of Units at the end of the Lock-Up Period. Canadian Employees will be advised that they may request copies of the Filer's Document de Référence filed with the French AMF in respect of the Shares and the regulations of the Temporary Classic Fund and the Principal Classic Fund through their human resources department, and can also access continuous disclosure materials relating to the Filer through the Filer's public internet site. Canadian Participants will receive an initial statement of their holdings under the Classic Plan together with an updated statement at least once per year.

20. There are approximately 2,330 Qualifying Employees resident in Canada, with the largest number residing in the Province of Québec. Less than 2% of Qualifying Employees reside in Canada.

21. None of the entities forming part of the VINCI Group or the Classic Fund are in default under the Legislation or the securities legislation of the Other Offering Jurisdictions. The Management Company is not in default of the Legislation or the securities legislation of the Other Offering Jurisdictions.

Decision

Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Makers to make the decision.

The decision of the Decision Makers 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:

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;

2. 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

(a) did not own, directly or indirectly, more than 10 % of the outstanding securities of the class or series, and

(b) 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

3. the first trade is made

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

(b) to a person or company outside of Canada.

"Lucie J. Roy"
Senior Director, Corporate Finance