Securities Law & Instruments

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Exemption from registration and prospectus requirements -- Trust established by Dutch company to distribute depositary receipts to eligible employees of Canadian affiliates under the company's employee investment plan -- Each depositary receipt corresponds to one share in issuer's capital -- Company and trust are not reporting in Canada, have a de minimis connection to Canada, and the depositary receipts are subject to resale restrictions and restrictions on transfer -- Price of depositary receipts is based on a valuation formula that is described in the employee investment plan -- Eligible employees voluntarily participate in the employee investment plan -- Exemption from the formal issuer bid requirements in Part XX of Securities Act -- Relief for trust to acquire depositary receipts in accordance with the terms of employee investment plan.

Applicable Legislative Provisions

Securities Act, R.S.O. 1990, c. S.5, as am., ss. 25, 53, 74(1), 104(2)(c).

May 20, 2009

IN THE MATTER OF

THE SECURITIES LEGISLATION OF

BRITISH COLUMBIA AND ONTARIO

(the Jurisdictions)

AND

IN THE MATTER OF

THE PROCESS FOR EXEMPTIVE RELIEF

APPLICATIONS IN MULTIPLE JURISDICTIONS

AND

IN THE MATTER OF

DHV HOLDING B.V.

(the Applicant)

 

DECISION

Background

1 The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) has received an application from the Applicant for a decision under the securities legislation of the Jurisdictions (the Legislation) for:

1. an exemption from the dealer registration requirement (the Dealer Registration Requirement) and the prospectus requirement so that such requirements do not apply to:

(a) trades in the depositary receipts (the Depositary Receipts) issued by the Stichting Administratiekantoor DHV (the Trust) to all Canadian Participants (as defined below), or a trustee, custodian, administrator, holding entity or spouse of a Canadian Participant, or the legal successor to a deceased Canadian Participant (each, a Permitted Assign);

(b) trades in the Depositary Receipts by Plan Participants (as defined below) to Canadian Participants (or their Permitted Assigns) or trades by the Canadian Participants (or their Permitted Assigns) to the Trust, in accordance with the terms of the Plan (as defined below);

2. an exemption from the issuer bid requirements of the Legislation with respect to the purchase of the Depositary Receipts by the Trust from the Canadian Participants in accordance with the terms of the Plan;

(collectively, the Exemption Sought) in connection with the implementation of a group employee share plan for employees of the Applicant or its affiliates, as more fully described below, that are resident in Canada.

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):

(a) the British Columbia Securities Commission is the principal regulator for this application,

(b) the Applicant has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in Manitoba, and

(c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.

Interpretation

2 Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined herein.

Representations

3 This decision is based on the following facts represented by the Applicant:

The Applicant

1. the Applicant is the parent corporation to the DHV group of companies that provides consultancy and engineering services in the markets of transportation, water, aviation, building and manufacturing and spatial and environmental planning on a global level and employs over 5,300 employees worldwide;

2. the Applicant is a private, limited liability corporation formed under Dutch law on September 1, 1977; it is not and has no current intention of becoming a reporting issuer in any Canadian jurisdiction; the head office of the Applicant is Amersfoort, the Netherlands;

3. the Applicant carries on business in Canada through Delcan Group Inc. and InterVISTAS Consulting Inc.; InterVISTAS Consulting Inc. (the Canadian Affiliate) is the only majority-owned subsidiary of the Applicant that operates in Canada (the Canadian Affiliate, together with the Applicant and other affiliates of the Applicant, the DHV Group); the Canadian Affiliate is an indirectly controlled subsidiary of the Applicant and is not, and has no current intention of becoming, a reporting issuer in any Canadian jurisdiction; the greatest number of employees of the Canadian Affiliate are employed in Vancouver, British Columbia, and the greatest proportion of the Applicant's Canadian operations in which it owns more than 50% are located in Vancouver;

4. as the majority of the assets, operations and employees of the Applicant in Canada are located in Vancouver, British Columbia, the British Columbia Securities Commission is the Principal Regulator for this Application in accordance with Section 3.6(9) of National Policy 11-203 -- Process for Exemptive Relief Applications in Multiple Jurisdictions;

Share Structure of the Applicant

5. the issued share capital of the Applicant is currently 5,036,282 shares, comprised of 5,036,281 ordinary shares and 1 priority share; the issued and outstanding ordinary shares of the Applicant are divided into two classes of shares; there are 4,580,000 class A ordinary shares and an aggregate of 456,281 class B ordinary shares (the Shares);

6. the issued and outstanding shares of the Applicant are held by three organizations: (i) the DHV Foundation holds 4,580,000 class A ordinary shares (approximately 90.9% of the ordinary shares of the Applicant) and is managed by a five person board of directors; (ii) the DHV Priority Foundation holds the one issued and outstanding priority share of the Applicant and is managed by a five person board of directors; and (iii) the Trust holds 200,700 Shares (approximately 4% of the ordinary shares of the Applicant); the remaining 255,581 Shares (approximately 5.1% of the ordinary shares) are held by the Applicant itself for future issuance to its employees;

7. the capital structure of the Applicant represents a shareholding structure whereby management and labour representatives have joint control over the share capital of the Applicant;

The DHV Group Employee Share Plan

8. the DHV Group implemented an employee share plan (the Plan) in September 2008 to increase commitment among its employees through share ownership and to increase retention of employees;

9. the Plan is administered by the Trust with its head office located in Amersfoort, the Netherlands; the purpose of the Trust is to manage the Shares of the Applicant that are available for use through the Plan and to issue Depositary Receipts of the Shares to participating employees;

10. the Trust is governed by a three person board of directors whose members are appointed yearly by the general meeting of the holders of Depositary Receipts; there is no current intention for the Trust to become a reporting issuer in any Canadian jurisdiction;

11. the goal of the Plan is offer up to 25% of the ordinary shares of the Applicant Shares to participating employees of the DHV Group worldwide;

12. eventually, subject to the timing of the Plan's implementation in various jurisdictions worldwide, all employees of the DHV Group, in which more than 50% of the outstanding shares and/or voting rights are held directly or indirectly by the Applicant, and who meet certain employment criteria (the Qualifying Employees) will be allowed to participate in the Plan;

13. the Applicant wishes to implement the Plan for the participation of its Qualifying Employees resident in Canada, employed by the Canadian Affiliate and who elect to participate in the Plan (the Canadian Participants, and together with other participants in the Plan, the Plan Participants);

14. the Canadian Participants will be invited to participate in the Plan on the terms below; all Plan Participants who participate in the Plan will be subject to the same terms:

(a) the Canadian Participants will receive an offer letter (Offer Letter) from the Applicant that sets out the specific terms and conditions of the purchase of Depositary Receipts, including the set date (the Trading Date) on which a Canadian Participant can purchase or sell Depositary Receipts and the purchase price of same; Canadian Participants who are already holders of Depositary Receipts will not receive an Offer Letter, but can register the number of Depositary Receipts that they want to purchase or sell on a secure website portal;

(b) since the shares of the Applicant are not publicly traded on a stock exchange, the value of the Shares and the purchase price of the Depository Receipts will be based on a valuation formula that is described in the Plan, and is comprised of a combination of the net asset value and the net profit value of the Shares (the Share Value); the valuation formula has been agreed upon with the Dutch tax authorities;

(c) the eventual number of Depositary Receipts that a Canadian Participant can purchase may be lower than the number of Depositary Receipts for which that Canadian Participant has applied; in order to promote broad-based participation, the Applicant has determined that first-time purchasers have priority above other purchasers, unless otherwise determined by the Applicant's executive board; the distribution of Depositary Receipts within those groups will occur on a pro-rated basis;

(d) the Trust will notify the Canadian Participants of the total number of Depositary Receipts purchased by them;

(e) to finalize the purchase of Depositary Receipts, the Canadian Participants must pay the purchase price that was originally disclosed in the Offer Letter; the Depositary Receipts are effectively purchased when the aggregate purchase price has been received in the bank account of the Trust before the Trading Date;

(f) the Trust will issue the Depositary Receipts to the Canadian Participants; each Depositary Receipt corresponds to one Share in the capital of the Applicant;

(g) the Canadian Participants will receive from the Trust any dividends, after the appropriate withholding of Dutch dividend tax, distributed on the Shares by the Applicant to the Trust;

(h) the Trust has legal ownership of the Shares and the voting rights attached to same; however, upon the request of a Canadian Participant, the Trust will give a proxy to that Canadian Participant to vote the Shares represented by the Depositary Receipts;

(i) if a Canadian Participant holds all Depositary Receipts purchased on a specific Trading Date for a period of four years from that Trading Date, and if the employment agreement with that employee has not ended before the end of this four-year period, that Canadian Participant will receive bonus Depositary Receipts equal to 10% of the number of Depositary Receipts purchased on that specific Trading Date (Bonus Depositary Receipts);

(j) the maximum number of Depositary Receipts that any Canadian Participant can own at any time is limited to 50,000, excluding the number of Bonus Depositary Receipts held by a Canadian Participant;

(k) a Canadian Participant may sell his or her Depositary Receipts on a Trading Date, but only to the Trust or a party designated by the Trust; the price that a Canadian Participant will receive for each of the voluntarily offered Depositary Receipts is the Share Value on the Trading Date on which the Depositary Receipts are actually sold;

(l) the legal successors of deceased Canadian Participants and former partners of divorced Canadian Participants, as well as Canadian Participants who: (i) cease employment with a member of the DHV Group for whatever reason, except for retirement; or (ii) have declared bankruptcy must offer their Depositary Receipts for sale;

(m) upon retirement, Canadian Participants must offer all of their Depositary Receipts for sale on or before the Trading Date that is three years after the date of retirement;

(n) in all cases, the sellers of Depositary Receipts will receive the Share Value per Depositary Receipt sold on the Trading Date on which their Depositary Receipts are actually sold; and

(o) the Trust is not obliged to purchase the Depositary Receipts offered for sale by a Canadian Participant; the Trust will, however, facilitate finding a purchaser for the Depositary Receipts on the next Trading Date.

15. the administration of the Plan has been outsourced to a corporation called Global Shares (the Administrator), a third party service provider who specializes in stock plan administration for private companies and public issuers worldwide; the Administrator is a private corporation governed by the laws of Ireland; the responsibilities carried out by the Administrator are limited to the administration of the Plan via the secure portal on the Plan's website on which subsequent purchases and sales by Canadian Participants are received and monitored by the Administrator;

16. the Depositary Receipts may not be (legally or beneficially) sold, transferred, pledged or encumbered, except as provided for in the Plan, the Offer Letter or the Trust conditions;

17. all costs connected with the Plan, including the administration costs and the costs relating to the issue, purchase, matching, and sale of Depositary Receipts will be borne by the Applicant or the Canadian Affiliate; all banking costs relating to the purchase and sale of Depositary Receipts will be borne by the Canadian Participants;

18. the Trust is responsible for preparing accounting documents and maintaining a register of Depositary Receipt holders; the Trust's activities will in no way affect the underlying value of the Shares;

19. participation in the Plan is voluntary, and the Canadian Participants will not be induced to participate in the Plan by expectation of employment or continued employment;

20. none of the Applicant, the Trust, the Administrator, the Canadian Affiliate or any of their employees, agents or representatives will provide investment advice to the Canadian Participants with respect to an investment in the Shares or purchase of the Depositary Receipts;

21. the Canadian Participants will receive an information package in English which will include the terms of the Plan, a description of the Canadian income tax consequences of purchasing and selling the Depositary Receipts, and other information on the Applicant and the DHV Group;

22. in addition to the information package provided to the Canadian Participants, the Canadian Participants will have access to the Plan's website (www.shareourdhvgroup.com) that has the Applicant's most recent annual report, copies of the Plan and the Offer Letter as well as frequently asked questions and contact information to obtain further particulars;

23. the Canadian Affiliate has approximately 57 Canadian Participants; the largest number of Canadian Participants (approximately 53) are located in British Columbia, and the remainder are located in Manitoba and Ontario; in total, the Canadian Participants represent in the aggregate approximately 1.2% of the number of Qualifying Employees worldwide; and

24. the Applicant and the Canadian Affiliate are not in default under the Legislation.

Decision

4 Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.

The decision of the Decision Makers under the Legislation is that the Exemption Sought is granted provided that the trades are made in accordance with the Plan and specifically, that the trades in the Depositary Receipts are by Plan Participants to Canadian Participants (or their Permitted Assigns) or are trades by the Canadian Participants (or their Permitted Assigns) to the Trust, and:

(i) participation in the trade is voluntary;

(ii) the Trust is not a reporting issuer in any jurisdiction in Canada; and

(iii) the Share Value of the Depositary Receipt being traded is established based on a valuation formula that is described in the Plan.

"Martin Eady, CA"
Director, Corporate Finance
British Columbia Securities Commission