Exemption Orders (Discretionary)
UNITED GOAL DEVELOPMENT LIMITED
2001 BCSECCOM 161
Headnote
Mutual Reliance Review System for Exemptive Relief Applications – Relief granted from the take over bid requirements regarding a bid, which is to be made in compliance with the laws of Hong Kong, for all of the issued and outstanding ordinary shares of a corporation with its principal office in Hong Kong. The bid is not an exempt bid under section 98(1)(e) of the Act as the laws of Hong Kong are not recognized for the purposes of that exemption.
Applicable British Columbia Provisions
Securities Act, R.S.B.C. 1996, c. 418, ss. 105 - 110 and 114(2)(c)
IN THE MATTER OF THE SECURITIES LEGISLATION OF ALBERTA, BRITISH COLUMBIA, ONTARIO AND QUEBEC
AND
IN THE MATTER OF THE MUTUAL RELIANCE REVIEW SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF UNITED GOAL DEVELOPMENT LIMITED
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the “Decision Maker”) in each of the provinces of Alberta, British Columbia, Ontario and Quebec (the “Jurisdictions”) has received an application from United Goal Development Limited (“UGD”) for a decision under the securities legislation of the Jurisdictions (the “Legislation”) that the formal take-over bid requirements in the Legislation, including the provisions relating to delivery of an offer and take-over bid circular and any notices of change or variation thereto, delivery of a directors’ circular and any notices of change or variation thereto, minimum deposit periods and withdrawal rights, take-up of and payment for securities tendered to a take-over bid, disclosure, financing, restrictions upon purchases of securities, identical consideration and collateral benefits (collectively, the “Take-over Bid Requirements”) do not apply to the proposed take-over bid offer (the “Offer”) by UGD of all outstanding ordinary/common shares (the “Asean Ordinary Shares”) of Asean Resources Holdings Limited (“Asean”) not already owned by UGD;
AND WHEREAS under the Mutual Reliance Review System for Exemptive Relief Applications (the “System”) the Ontario Securities Commission (the “OSC”) is selected as the principal regulator for this application;
AND WHEREAS UGD has represented to the Decision Makers that:
1. UGD is an international business company incorporated under the laws of the British Virgin Islands. UGD’s registered office is located in the British Virgin Islands.
2. UGD’s issued share capital as at December 30, 2000 consisted of two ordinary shares.
3. UGD is not a reporting issuer in Ontario, nor is it a reporting issuer or the equivalent in any other jurisdiction in Canada.
4. Asean is a corporation incorporated under the laws of Bermuda. Asean’s principal office is located in Hong Kong.
5. Asean’s issued share capital as at December 30, 2000 consisted of 1,286,482,836 Asean Ordinary Shares. The Asean Ordinary Shares are listed on the main board of The Stock Exchange of Hong Kong Limited.
6. Asean is not a reporting issuer in Ontario, nor is it a reporting issuer or the equivalent in any other jurisdiction in Canada.
7. The Offer was announced on November 25, 2000 and will be made to the holders of all the outstanding Asean Ordinary Shares not already owned by UGD (the “Asean Shareholders”). The Offer is an all cash offer whereby UGD is offering to purchase each Asean Ordinary Share at $0.70 (Hong Kong dollars).
8. The Offer is being made in accordance with the laws of Hong Kong and The Codes on Takeovers and Mergers and Share Repurchases (the “Hong Kong Code”), and not pursuant to any exemptions from such requirements. The Hong Kong Code is regulated by the Hong Kong Securities and Futures Commission (the “HKSFC”).
9. Pursuant to the Hong Kong Code, UGD has submitted to the HKSFC for its review and approval an offer document containing the terms and conditions of the Offer and prescribed disclosure (the “Offer Document”). The Offer Document will not be mailed by UGD to Asean Shareholders until it is approved by the HKSFC. Pursuant to the Hong Kong Code, the Offer will have to remain open for a minimum of 21 days after the mailing of the Offer Document to Asean Shareholders.
10. There are a total of 18 Asean Shareholders with registered addresses in the Jurisdictions (the “Canadian Shareholders”). The Canadian Shareholders hold in the aggregate less than 2% of the issued and outstanding Asean Ordinary Shares as set out below:
| Province |
Shareholders |
Ordinary Shares Held |
|
| Ontario |
|
|
|
| British Columbia |
|
|
|
| Alberta |
|
|
|
| Quebec |
|
|
|
| Total |
|
|
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11. UGD cannot rely on the de minimus exemption from the Take-over Bid Requirements because the Decision Makers have not recognized Hong Kong for this purpose in the Legislation.
12. The Offer will be made on the same terms and conditions to the Canadian Shareholders as it has been made to all Asean Shareholders, including offering identical consideration.
13. The Offer Document and all other material relating to the Offer, including any amendments, that will be sent by UGD to Asean Shareholders residing outside Canada shall concurrently be sent to the Canadian Shareholders and filed with the Decision Makers.
AND WHEREAS under the System, this MRRS Decision Document evidences the decision of each of the Decision Makers (the “Decision”);
AND WHEREAS each of the Decision Makers is satisfied that the test contained in the Legislation that provides the Decision Maker with the jurisdiction to make the Decision has been met;
THE DECISION of the Decision Makers under the Legislation is that UGD is exempt from the Take-over Bid Requirements in making the Offer to the Canadian Shareholders provided that:
(a) the Offer and all amendments to the Offer are made in compliance with the laws of Hong Kong, including the Hong Kong Code; and
(b) the Offer Document and all other material relating to the Offer, including any amendments, that are sent by or on behalf of UGD to Asean Shareholders residing outside Canada are concurrently sent to the Canadian Shareholders and copies of such material are filed as nearly as practicable contemporaneously with the Decision Maker in each Jurisdiction.
DATED January 22, 2001.
J. A. Geller R. Stephen Paddon