Exemption Orders (Discretionary)
PACTIV CORPORATION
2001 BCSECCOM 311
IN THE MATTER OF THE SECURITIES ACT
R.S.B.C. 1996, c. 418
AND
IN THE MATTER OF PACTIV CORPORATION
Exemption Order Under Sections 48, 76 and 114(2)(c)
[para 1]
WHEREAS Pactiv Corporation (the “Filer”) has applied to the Executive Director for an order:
(a) under sections 48 and 76 of the Securities Act, R.S.B.C. 1996, c. 418 that certain intended trades in options over shares of common stock of the Filer (the “Shares”) under the Filer’s Stock Ownership Plan (the “SOP”) are exempt from the requirements of sections 34(1)(a) and 61 of the Act;
(b) under section 48 of the Act that certain intended trades in Shares under the SOP are exempt from the requirements of section 34(1)(a) of the Act; and
(c) under section 114(2)(c) of the Act that the Filer is exempt from sections 105 to 108 and 110 of the Act with respect to certain repurchases of Shares under the SOP;
[para 2]
AND WHEREAS the Filer has represented to the Executive Director that:
1. the Filer is a corporation incorporated under the laws of the State of Delaware in the United States of America and is subject to the requirements of the Securities Exchange Act of 1934 in the United States;
2. the Filer is not, and has no present intention of becoming, a reporting issuer under the Act;
3. the Shares are listed and posted for trading on the New York Stock Exchange (the “NYSE”);
4. the SOP was established for the benefit of employees of the Filer and its affiliates, including employees resident in British Columbia (the “B.C. Employees”);
5. under the SOP, eligible employees, including B.C. Employees, may be granted options on Shares, stock appreciation rights, restricted stock, stock equivalent units, dividend equivalents, reload options and performance units (collectively, the “Awards”);
6. as of October 23, 2000, there was one B.C. Employee eligible to receive Awards under the SOP;
7. under the SOP, an agent who is not a registrant under the Act but is a registrant in the United States (the “Agent”), will maintain an account on behalf of each B.C. Employee and, in certain cases, on behalf of former B.C. Employees or their legal representatives (the “Former Employees”) that participate in the SOP;
8. participation in the SOP is voluntary and the B.C. Employees and Former Employees will not be induced to participate in, or otherwise be required to purchase Shares under, the SOP by expectation of employment or continued employment;
9. neither the Filer nor the Agent will offer any advice to the B.C. Employees or Former Employees regarding the decision to acquire or hold Awards or Shares, or to sell Shares;
10. the B.C. Employees and Former Employees who acquire Shares under the SOP will be provided with a copy of the SOP and all disclosure materials relating to the Filer that are provided to holders of Shares resident in the United States, as well as a copy of this order;
11. under the SOP, an optionee has the right to exercise an option granted under the SOP by delivering Shares previously owned by the optionee to the Filer in payment of the exercise price of the option (a “Stock Swap Exercise”);
12. under the SOP, an optionee who exercises an option through a Stock Swap Exercise may receive reload options covering the number of Shares delivered to the Filer to pay the exercise price of the option;
13. the distribution of Awards and Shares to B.C. Employees is exempt from the requirements of sections 34(1)(a) and 61 of the Act under BC Instrument 45-507 (the “Instrument”) and sections 45(2)(10), 45(2)(12)(iii), 74(2)(9) and 74(2)(11)(iii) of the Act;
14. the Filer may not rely on the Instrument or sections 45(2)(10) and 74(2)(9) of the Act in connection with the grant of reload options to Former Employees in connection with a Stock Swap Exercise;
15. Former Employees may not rely on the Instrument in connection with trades in Shares acquired upon the exercise of reload options that were granted to a Former Employee in connection with a Stock Swap Exercise;
16. the acquisition of Shares by the Filer from an optionee on exercise of an option through a Stock Swap Exercise constitutes an issuer bid that is not exempt from the requirements contained in Part 13 of the Act as the calculation of the market price of the Shares under the SOP does not conform with the requirements of the Securities Regulations, B.C. Reg. 194/97;
[para 3]
AND WHEREAS the Executive Director considers that to do so would not be prejudicial to the public interest;
[para 4]
IT IS ORDERED:
1. under sections 48 and 76 of the Act that intended trades in reload options to Former Employees under the SOP are exempt from the requirements of section 34(1)(a) and 61 of the Act;
2. under section 48 of the Act that trades in Shares acquired upon the exercise of reload options by Former Employees through the Agent are exempt from section 34(1)(a) of the Act;
3. under section 114(2)(c) of the Act that the Filer is exempt from sections 105 to 108 and 110 of the Act with respect to the acquisition of Shares by the Filer from an optionee pursuant to a Stock Swap Exercise.
[para 5]
DATED March 12 , 2001.
Brenda Leong
Director