Securities Act (French Issuers Employee Share Purchase Schemes) Exemption Notice 2010

Reprint
as at 28 September 2012

Coat of Arms of New Zealand

Securities Act (French Issuers Employee Share Purchase Schemes) Exemption Notice 2010

(SR 2010/70)


Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.

This notice is administered by the Financial Markets Authority.


Pursuant to the Securities Act 1978, the Securities Commission gives the following notice (to which is appended a statement of reasons of the Securities Commission).

Notice

1 Title
  • This notice is the Securities Act (French Issuers Employee Share Purchase Schemes) Exemption Notice 2010.

2 Commencement
  • This notice comes into force on the day after the date of its notification in the Gazette.

3 Expiry
  • This notice expires on the close of 30 September 2017.

    Clause 3: amended, on 28 September 2012, by clause 3 of the Securities Act (Extension of Term, Amendment, and Transitional Provision) Exemption Notice 2012 (SR 2012/294).

4 Interpretation
  • (1) In this notice, unless the context otherwise requires,—

    Act means the Securities Act 1978

    eligible person means, in relation to a French issuer,—

    • (a) an employee of the French issuer or of any of its subsidiaries:

    • (b) a director of the French issuer or of any of its subsidiaries

    employee share purchase scheme means—

    • (a) a scheme established by a French issuer, or by any of its subsidiaries, under which eligible persons may acquire shares, or rights or options to acquire shares, issued by the French issuer; or

    • (b) a mutual fund established by, or on behalf of, a French issuer or any of its subsidiaries, in which eligible persons may acquire units; or

    • (c) a scheme established as a regional variation of a scheme referred to in paragraph (a) or a mutual fund established as a regional variation of a mutual fund referred to in paragraph (b) if regional variations are permitted by the scheme or the mutual fund's rules

    French issuer means a company that—

    • (a) is incorporated under the laws of France; and

    • (b) has its shares quoted on NYSE Euronext Paris

    mutual fund means a mutual fund—

    • (a) established under the laws of France and the requirements of the Autorité des Marchés Financiers; and

    • (b) that is approved by the Autorité des Marchés Financiers

    overseas bank means a bank licensed or otherwise authorised by the central banking authority of an overseas jurisdiction to carry on banking business in that jurisdiction

    published financial statements means financial statements that are published, issued, or prepared in accordance with the laws of France

    registered bank has the same meaning as in section 2(1) of the Reserve Bank of New Zealand Act 1989

    Regulations means the Securities Regulations 2009

    savings scheme security means a debt or participatory security

    specified security means a security issued under an employee share purchase scheme

    specified subsidiary means, in relation to a French issuer, a company incorporated in New Zealand or France that—

    • (a) is a wholly owned subsidiary of the French issuer; and

    • (b) offers or issues savings scheme securities in connection with participation in the French issuer's employee share purchase scheme

    unit

    • (a) means an interest or right to participate in any capital, assets, earnings, or other property of a mutual fund or a part of a mutual fund; and

    • (b) includes any renewal or variation of the terms or conditions of any of those interests or rights.

    (2) Any term or expression that is defined in the Act or the Regulations and used, but not defined, in this notice has the same meaning as in the Act or the Regulations.

    Clause 4(1) 1983 Regulations: revoked, on 28 September 2012, by clause 3 of the Securities Act (Extension of Term, Amendment, and Transitional Provision) Exemption Notice 2012 (SR 2012/294).

    Clause 4(1) 2009 Regulations: revoked, on 28 September 2012, by clause 3 of the Securities Act (Extension of Term, Amendment, and Transitional Provision) Exemption Notice 2012 (SR 2012/294).

    Clause 4(1) Regulations: inserted, on 28 September 2012, by clause 3 of the Securities Act (Extension of Term, Amendment, and Transitional Provision) Exemption Notice 2012 (SR 2012/294).

    Clause 4(2): amended, on 28 September 2012, by clause 3 of the Securities Act (Extension of Term, Amendment, and Transitional Provision) Exemption Notice 2012 (SR 2012/294).

5 Exemptions for specified securities
  • (1) This clause applies to—

    • (a) a French issuer; and

    • (b) a manager acting on behalf of a mutual fund; and

    • (c) a holder of specified securities previously allotted by a French issuer with a view to their being offered for sale to eligible persons; and

    • (d) a person acting on behalf of a person referred to in paragraph (a), (b), or (c).

    (2) Every person to whom this clause applies is exempted from sections 33(3), 37, 37A, 38A, and 51 to 54B of the Act, and from the Regulations (except regulation 23) in respect of specified securities offered to eligible persons under the French issuer's employee share purchase scheme.

    Clause 5(2): amended, on 28 September 2012, by clause 3 of the Securities Act (Extension of Term, Amendment, and Transitional Provision) Exemption Notice 2012 (SR 2012/294).

6 Exemptions for savings scheme securities
  • (1) This clause applies to—

    • (a) a registered bank; and

    • (b) an overseas bank; and

    • (c) a French issuer; and

    • (d) a specified subsidiary; and

    • (e) a person acting on behalf of a person referred to in paragraph (a), (b), (c), or (d).

    (2) Every person to whom this clause applies is exempted from sections 33(2) and (3), 37, 37A, 38A, and 51 to 54B of the Act, and from the Regulations (except regulation 23) in respect of savings scheme securities offered to eligible persons in connection with participation in the French issuer's employee share purchase scheme.

    Clause 6(2): amended, on 28 September 2012, by clause 3 of the Securities Act (Extension of Term, Amendment, and Transitional Provision) Exemption Notice 2012 (SR 2012/294).

7 Condition that requires specified securities and savings scheme securities to be allotted only to eligible persons
  • The exemptions in clauses 5 and 6 are subject to the condition that the specified securities or savings scheme securities (as the case may be) must be allotted only to the following persons:

    • (a) persons who are eligible persons at the time of allotment of the specified securities or savings scheme securities:

    • (b) in the case of specified securities that are allotted on the exercise of rights or options to acquire specified securities, persons who are eligible persons at the time of allotment of those rights or options.

8 Conditions that require other disclosure to be made
  • (1) The exemptions in clauses 5 and 6 from sections 37, 37A, 38A, 54A, and 54B of the Act are subject to the condition that the person to whom the offer is made must receive, before subscribing for the specified securities or the savings scheme securities (as the case may be),—

    • (a) an English version or English translation of the following information (which may be in 1 or more documents):

      • (i) the most recent annual report of the French issuer; and

      • (ii) the most recent annual report of the mutual fund (if the employee share purchase scheme involves a mutual fund and an annual report has been prepared for the mutual fund); and

      • (iii) the most recent published financial statements of the French issuer; and

      • (iv) the most recent published financial statements of the mutual fund (if the employee share purchase scheme involves a mutual fund and financial statements have been prepared for the mutual fund); and

      • (v) the current rules of the employee share purchase scheme or a summary of those rules; and

      • (vi) the terms of the offer in New Zealand; or

    • (b) a notice stating—

      • (i) that the information described in paragraph (a) is available on an Internet or intranet site operated by, or on behalf of, the French issuer; and

      • (ii) the address of that Internet or intranet site; and

      • (iii) that the information described in paragraph (a) will be sent, without fee, to the person to whom the offer is made on request, and how and to whom that request may be made.

    (2) The exemptions in clauses 5 and 6 from sections 37, 37A, 38A, 54A, and 54B of the Act are subject to the further condition that the information described in subclause (1)(a) must be received by the Registrar of Companies before the date of allotment of the specified securities or savings scheme securities (as the case may be).

9 Condition that requires specified securities to be offered in France
  • (1) The exemptions in clause 5 are subject to the condition that, at the time of the offer, specified securities must also be offered, or must previously have been offered, under the employee share purchase scheme or a parallel scheme, in France.

    (2) In this clause, parallel scheme means a scheme—

    • (a) under which eligible persons may acquire specified securities; and

    • (b) that is established under the laws of France; and

    • (c) the terms of which are substantially the same as those of the employee share purchase scheme except to the extent that variations are necessary or desirable to comply with, or to take into account, the laws of the jurisdictions in which specified securities are offered (whether under the parallel scheme or the employee share purchase scheme).

10 Condition that requires savings scheme securities funds be held in separate bank account
  • The exemptions in clause 6 from section 33(2) of the Act are subject to the condition that the subscriptions received for the savings scheme securities must be held in a bank account that holds only those subscriptions until the specified securities are allotted or the subscriptions disposed of in accordance with the employee share purchase scheme, whichever is the earlier.

Dated at Wellington this 24th day of March 2010.

The Common Seal of the Securities Commission was affixed in the presence of:

[Seal]

J Diplock,
Chairperson.


Statement of reasons

Note: The following statement of reasons should be read in conjunction with the statement(s) of reasons appended to the:

This notice, which comes into force on the day after the date of its notification in the Gazette and expires on 30 September 2012, replaces the Securities Act (French Issuers Employee Share Purchase Schemes) Exemption Notice 2005 (the previous notice), which is revoked.

This notice continues the exemptions in respect of employee share purchase schemes established by French issuers (as defined in the notice) granted by the previous notice. The exemptions are from the statutory supervisor and deed of participation requirements, the prospectus and investment statement requirements, and certain other requirements of the Securities Act 1978, the Securities Regulations 1983, and the Securities Regulations 2009. Certain changes are made to align the terms of this notice with those of the Securities Act (Overseas Employee Share Purchase Schemes) Exemption Notice 2002 (the 2002 Exemption Notice). For example, it is no longer a condition of the exemptions that the French issuer reports annually to the Securities Commission (the Commission).

This notice also exempts (subject to conditions) registered banks and overseas banks in respect of debt or participatory securities offered in connection with participation in employee share purchase schemes. The exemptions are from the same requirements as the main exemption and also from the trustee and trust deed requirements of the Securities Act 1978, and are based on exemptions contained in the 2002 Exemption Notice.

The Commission considers that it is appropriate to grant the exemptions because—

  • the situation of employee share purchase schemes established by French issuers is similar to that covered by the 2002 Exemption Notice. The 2002 Exemption Notice recognises that issuers incorporated under the laws of certain jurisdictions, and whose shares are listed on an exchange in certain jurisdictions, are already subject to an appropriate level of regulation in respect of offers of shares to employees. In addition, the cost of producing a prospectus and investment statement to comply with New Zealand law may preclude offers being made to New Zealand employees by French issuers:

  • some French issuers are unable to comply with the 2002 Exemption Notice. This is because the offers involve a particular vehicle for offering securities to employees, known as a Fonds Commun de Placement d'Enterprise, that is not covered by the 2002 Exemption Notice. However, the Commission is satisfied that the policy of the 2002 Exemption Notice should apply in this case:

  • the terms and conditions of this notice are consistent with those of the 2002 Exemption Notice.

Note: The preceding statement of reasons should be read in conjunction with the statement(s) of reasons appended to the:


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 26 March 2010.


Contents

  • 1General

  • 2Status of reprints

  • 3How reprints are prepared

  • 4Changes made under section 17C of the Acts and Regulations Publication Act 1989

  • 5List of amendments incorporated in this reprint (most recent first)


Notes
1 General
  • This is a reprint of the Securities Act (French Issuers Employee Share Purchase Schemes) Exemption Notice 2010. The reprint incorporates all the amendments to the notice as at 28 September 2012, as specified in the list of amendments at the end of these notes.

    Relevant provisions of any amending enactments that contain transitional, savings, or application provisions that cannot be compiled in the reprint are also included, after the principal enactment, in chronological order. For more information, see http://www.pco.parliament.govt.nz/reprints/ .

2 Status of reprints
  • Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.

    This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.

3 How reprints are prepared
  • A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/editorial-conventions/ or Part 8 of the Tables of New Zealand Acts and Ordinances and Statutory Regulations and Deemed Regulations in Force.

4 Changes made under section 17C of the Acts and Regulations Publication Act 1989
  • Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes that would alter the effect of the legislation are not permitted.

    A new format of legislation was introduced on 1 January 2000. Changes to legislative drafting style have also been made since 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint.

    In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:

    • omission of unnecessary referential words (such as of this section and of this Act)

    • typeface and type size (Times Roman, generally in 11.5 point)

    • layout of provisions, including:

      • indentation

      • position of section headings (eg, the number and heading now appear above the section)

    • format of definitions (eg, the defined term now appears in bold type, without quotation marks)

    • format of dates (eg, a date formerly expressed as the 1st day of January 1999 is now expressed as 1 January 1999)

    • position of the date of assent (it now appears on the front page of each Act)

    • punctuation (eg, colons are not used after definitions)

    • Parts numbered with roman numerals are replaced with arabic numerals, and all cross-references are changed accordingly

    • case and appearance of letters and words, including:

      • format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)

      • small capital letters in section and subsection references are now capital letters

    • schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly

    • running heads (the information that appears at the top of each page)

    • format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronological).

5 List of amendments incorporated in this reprint (most recent first)
  • Securities Act (Extension of Term, Amendment, and Transitional Provision) Exemption Notice 2012 (SR 2012/294): clause 3