ASIC Corporations (OVHcloud Employee Share Scheme Disclosure) Instrument 2023/826

Overview

The ASIC Corporations (OVHcloud Employee Share Scheme Disclosure) Instrument 2023/826 was enacted to address the need for specific disclosure requirements related to employee share schemes for OVHcloud and its subsidiaries, as well as the entities managing and administering the related collective employee investment vehicles. This notifiable instrument was made under subsection 1100ZK(2) of the Corporations Act 2001 by Amanda Zeller, a delegate of the Australian Securities and Investments Commission. The instrument aims to ensure that the employee share scheme interests, particularly those held within the framework of the OVH Group International Savings Plan or similar plans, are properly disclosed in accordance with the Corporations Act 2001. The instrument modifies the definition of ESS interest to include units in a French collective employee investment vehicle, provided that the vehicle holds fully paid shares in OVHcloud that can be traded on a financial market. This instrument will be repealed six years after its commencement.

Scope and Application

The ASIC Corporations (OVHcloud Employee Share Scheme Disclosure) Instrument 2023/826 applies to OVH Group SA, its subsidiaries, and certain related entities involved in the administration and management of the OVHcloud Employee Share Scheme, which is a collective employee investment vehicle known as a ‘fonds commun de placement d’entreprise’ approved by the Autorité des Marchés Financiers in France. This instrument modifies the definition of an Employee Share Scheme (ESS) interest under the Corporations Act 2001 to include units in a FCPE, provided that the FCPE holds substantially all of its assets as fully paid shares in a body corporate listed on a financial market covered by section 1100K of the Act, and the shares are tradeable on that market. The instrument is made under the authority of subsection 1100ZK(2) of the Corporations Act 2001 and commences on the day after it is registered on the Federal Register of Legislation. It is in effect until 6 November 2033, at which point it will be repealed.

Key Provisions

The ASIC Corporations (OVHcloud Employee Share Scheme Disclosure) Instrument 2023/826 primarily modifies the definition of an Employee Share Scheme (ESS) interest under the Corporations Act 2001 (section 5). This modification is intended to include units in a French collective employee investment vehicle known as a 'fonds commun de placement d’entreprise' (FCPE) when certain conditions are met. Specifically, the instrument modifies the Act to include a unit in an FCPE where substantially all of the assets of the FCPE are fully paid shares in a body corporate, and those shares are in a class that can be traded on a financial market covered by section 1100K (section 5(ab)(i) and (ii)). The instrument applies to OVH Group SA, its subsidiaries, and certain related entities, such as CACEIS BANK, AMUNDI ASSET MANAGEMENT, and AMUNDI ESR, which are the custodian, manager, and administrator of the FCPE OVHcloud Shares, respectively. The instrument imposes obligations on the entities covered by the modified definition of ESS interest, including OVH Group SA and its subsidiaries, to ensure that the FCPE OVHcloud Shares comply with the relevant disclosure requirements under the Corporations Act. This includes ensuring that the terms and conditions of the FCPE, the shares it holds, and the units offered to employees are fully disclosed as part of the ESS disclosures. Additionally, the custodian, manager, and administrator of the FCPE OVHcloud Shares must ensure that the units are managed in accordance with the requirements set out in the Corporations Act and any related regulations. Failure to comply with the obligations and requirements set out in this instrument may result in civil or criminal consequences. Under the Corporations Act, entities that fail to make the required ESS disclosures may be subject to penalties, including fines of up to $210,000 for a corporation and up to $42,000 for an individual. Additionally, directors or officers of the entities may also be held personally liable for non-compliance, facing similar penalties. These provisions underscore the importance of ensuring that all required disclosures are made accurately and in a timely manner to avoid potential legal and financial repercussions. The instrument will remain in effect until 6 November 2033, after which it will be repealed.