Exemption Orders (Discretionary)
GLACIER VENTURES INTERNATIONAL CORP.
2001 BCSECCOM 845
Headnote
Mutual Reliance Review System for Exemptive Relief Applications – Relief from the requirement to offer identical consideration to all shareholders in a take-over bid – shareholders of offeree issuer resident in the United States of America to be offered only the cash alternative.
Applicable British Columbia Provisions
Securities Act, R.S.B.C. 1996, c. 418, ss. 107(1), 114(2)(c)
IN THE MATTER OF THE SECURITIES LEGISLATION OF BRITISH COLUMBIA, ALBERTA, ONTARIO AND QUÉBEC
AND
IN THE MATTER OF THE MUTUAL RELIANCE REVIEW SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF GLACIER VENTURES INTERNATIONAL CORP.
MRRS DECISION DOCUMENT
[para 1]
WHEREAS the local securities regulatory authority or regulator (the "Decision Maker") in each of British Columbia, Alberta, Ontario and Québec (the "Jurisdictions") has received an application from Glacier Ventures International Corp. (the "Filer") for a decision under the securities legislation of the Jurisdictions (the "Legislation") that the requirement contained in the Legislation to offer holders of the same class of securities identical consideration (the "Identical Consideration Requirement"), shall not apply in connection with the Filer's offer (the "Take-over Bid") to purchase 3,641,166, or 45%, of the issued and outstanding common shares (the "Hawker Shares") of Hawker Siddeley Canada Inc. (the "Target"), insofar as it relates to the consideration offered to the Target’s shareholders resident in the United States of America (the "U.S. Shareholders");
[para 2]
AND WHEREAS under the Mutual Reliance Review System for Exemptive Relief Applications (the "System"), the British Columbia Securities Commission is the principal regulator for this application;
[para 3]
AND WHEREAS the Filer has represented to the Decision Makers that:
1. the Filer is a company amalgamated under the Canada Business Corporations Act (the "CBCA") with its head office in Vancouver, British Columbia;
2. the Filer is a reporting issuer under the securities legislation in each of British Columbia, Alberta and Ontario and is not in default of any requirement of such legislation;
3. the Filer’s shares (the "Glacier Shares") are listed on The Toronto Stock Exchange (the "TSE");
4. the Target is a corporation incorporated by letters patent under the laws of Canada and continued under the CBCA;
5. the Target is a reporting issuer or the equivalent under the securities legislation in each province of Canada;
6. the Hawker Shares are listed on the TSE;
7. under the terms of the Take-over Bid, commenced by the Filer on July 12, 2001, the Filer offered to acquire 3,641,166 Hawker Shares for either 0.57 Glacier Shares for every one Hawker Share (the "Share Alternative") or $0.69 cash for every one Hawker Share (the "Cash Alternative"); a Target shareholder may also elect to receive a combination of Glacier Shares and cash (the "Combination Alternative") for their Hawker Shares;
8. as the Glacier Shares issuable under the Take-over Bid to U.S. Shareholders have not been and will not be registered or otherwise qualified for distribution under the Securities Act of 1933 of the United States of America (the "1933 Act"), the delivery of Glacier Shares to U.S. Shareholders without further action by the Filer may constitute a violation of the laws of the United States of America;
9. the exemption from registration in Rule 802 of the 1933 Act requires that U.S. holders be offered terms at least as favourable as those offered to other holders, but if the laws of the state where an individual U.S. holder resides requires offered shares to be registered or qualified, Rule 802 permits an issuer to offer only the same cash alternative to all U.S. holders;
10. the registration or qualification exemptions under the securities legislation of the various states of the United States of America either do not exempt the delivery of Glacier Shares to the U.S. Shareholders or else require the Glacier Shares to be restricted, therefore, U.S. Shareholders cannot receive Glacier Shares on terms as favourable as those offered to Canadian shareholders;
11. to the knowledge of the Filer, based on the list of shareholders of the Target, there are 73 registered U.S. Shareholders collectively holding approximately 0.74% of the Hawker Shares;
12. the maximum number of Glacier Shares that could have been issued to U.S. Shareholders under the Take-over Bid is 34,172 shares;
13. in light of the fact that Glacier Shares will not be registered or otherwise qualified for distribution in the United States of America, the Filer will offer only the Cash Alternative to the U.S. Shareholders who tender their Hawker Shares under the terms of the Take-over Bid; and
14. the Take-over Bid is being made in compliance with the Legislation of the Jurisdictions, except to the extent that exemptive relief is granted in respect of the Identical Consideration Requirement;
[para 4]
AND WHEREAS under the System, this MRRS Decision Document evidences the decision of each Decision Maker (collectively, the "Decision");
[para 5]
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;
[para 6]
THE DECISION of the Decision Makers under the Legislation is that, in connection with the Take-over Bid, the Filer is exempt from the Identical Consideration Requirement insofar as the U.S. Shareholders who tender their Hawker Shares under the terms of the Take-over Bid will be offered only the Cash Alternative.
[para 7]
DATED August 13, 2001.
Derek E. Patterson
Acting Director