Mutual Reliance Review System for Applications- German take-over bid made in Ontario - securities of offereeissuer held in bearer form, so that offeror unable to determinethe number of Ontario holders or percentage of securities heldby Ontario holders - number of Ontario holders and percentageof securities held believed to be de minimis -- offermade in compliance with laws of Germany - bid exempted fromrequirements of Part XX, subject to certain conditions. Prospectusand registration relief granted.
Applicable Ontario Statutes
Securities Act, R.S.O. 1990, c. S.5, as amended,ss. 25, 53, 74, 93(1)(e), 95-100 and 104(2)(c).
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
ONTARIO, BRITISH COLUMBIA,ALBERTA, SASKATCHEWAN,
MANITOBA, QUÉBEC, NOVASCOTIA, NEW BRUNSWICK,
PRINCE EDWARD ISLAND AND NEWFOUNDLANDAND LABRADOR
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
BUZZI UNICEM S.p.A.
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker") in eachof the provinces of Ontario, British Columbia, Alberta, Saskatchewan,Manitoba, Québec, Nova Scotia, Newfoundland and Labrador,New Brunswick and Prince Edward Island (the "Jurisdictions")has received an application from Buzzi Unicem S.p.A. (the "Applicant")for a decision under the securities legislation of the Jurisdictions(the "Legislation") that the following requirementsin the Legislation do not apply to trades made in connectionwith the proposed offer (the "Offer") by the Applicantfor the outstanding preferred shares ("Preferred Shares")of Dyckerhoff AG (the "Target"): (i) the formal take-overbid requirements, including the provisions relating to deliveryof an offer and take-over bid circular and any notices of changeor variation thereto, delivery of a directors' circular andany notices of change or variation thereto, minimum depositperiods and withdrawal rights, take-up of and payment for securitiestendered to a take-over bid, disclosure, financing, restrictionsupon purchases of securities, identical consideration and collateralbenefits (collectively, the "Take-over Bid Requirements"),(ii) the dealer registration requirements (the "RegistrationRequirements"), and (iii) the prospectus requirements (the"Prospectus Requirements");
AND WHEREAS under the Mutual RelianceReview System for Exemptive Relief Applications (the "MRRS"),the Ontario Securities Commission (the "Commission")is selected as the principal regulator for this application;
AND WHEREAS, unless otherwise defined,the terms have the meaning set out in National Instrument 14-101or in Québec Commission Notice 14-101;
AND WHEREAS the Applicant has representedto the Decision Makers that:
1. The Applicant is a corporation incorporatedunder the laws of Italy. The Applicant's shares are listedfor trading on the Milan Stock Exchange. The Applicant isa recognized leader in the production and distribution ofcement, ready-mixed concrete and aggregate products.
2. The Applicant's registered office is locatedat Via Luigi Buzzi, 6, 15033 Casale Monferrato, Italy.
3. The Applicant is not a reporting issueror the equivalent in any of the Jurisdictions. The Applicant'ssecurities are not listed or quoted for trading on any Canadianstock exchange or market.
4. The Target is a corporation incorporatedunder the laws of the Federal Republic of Germany, with itsshares listed on the Frankfurt (Main) Stock Exchange, theDüsseldorf Stock Exchange and the Luxembourg Stock Exchange.The Target is a leading cement company selling its productsin eight countries.
5. The Target's registered office is locatedin Wiesbaden, Germany.
6. The Target's issued and outstanding sharecapital consists of 20,667,554 ordinary shares ("OrdinaryShares") and 20,597,999 Preferred Shares. The PreferredShares constitute "equity shares" for the purposesof the definition of "take-over bid" in the applicablesecurities legislation in Ontario, British Columbia, Alberta,Saskatchewan, Manitoba, Québec, Nova Scotia and Newfoundlandand Labrador as they carry a residual right to participatein the earnings of the Target and, upon liquidation or windingup of the Target, in its assets.
7. The Target is not a reporting issuer orequivalent in any of the Jurisdictions. The Target's securitiesare not listed or quoted for trading on any Canadian stockexchange or market.
8. The Applicant currently holds 49.29% ofthe outstanding Ordinary Shares and has rights to purchase41.13% of the outstanding Ordinary Shares. The Applicant alsoholds 4.98% of the Preferred Shares and has a right to purchase1.77% of the outstanding Preferred Shares.
9. On June 5, 2003, the Applicant announcedits intention to launch a stock swap tender offer wherebyholders of Preferred Shares of the Target would be invitedto tender their Preferred Shares of the Target in exchangefor savings shares ("Savings Shares") of the Applicantat a ratio of 2.4 Saving Shares of the Applicant for everyPreferred Share of the Target tendered.
10. The Offer is being made, and the offerdocument (the "Offer Document") reflecting the termsof the Offer is being prepared, in accordance with the lawsof the Federal Republic of Germany and, in particular, incompliance with the German Securities Acquisition and TakeoverAct.
11. The Offer Document, which includes asan annex a prospectus prepared in accordance with German lawregarding the Savings Shares of the Applicant, will be submittedto the applicable securities regulatory authority in Germanyby July 31, 2003 for review. It is expected that the OfferDocument, including the prospectus, will be made availableto the holders of the Target's Preferred Shares after approvalby the German regulator, on or about August 20, 2003. In accordancewith German law, the Offer Document, including the prospectus,will be available on the internet under http://buzziunicem-dyckerhoff.comand a public announcement in a national German newspaper willspecify where and how the shareholders may obtain a copy ofthe Offer Document free of charge.
12. As permitted by German law, the Targethas issued bearer securities and does not maintain a shareregister. Accordingly, any information about the Target'sshareholdings in Canada can only be determined on a limitedenquiry basis by the Target. Based on such enquiry by theTarget, the Applicant believes that as of July 2, 2003 therewere six holders of Preferred Shares resident in Canada, holding3,109 Preferred Shares of the Target representing approximately0.02% of the 20,597,999 Preferred Shares outstanding. TheApplicant believes that one of the shareholders resides inOntario. The Applicant has been unable to determine the Provincein which the remaining five shareholders reside.
13. Any material relating to the Offer thatis to be sent by the Applicant to holders of the Target'sPreferred Shares in Germany will also be sent to holders ofsuch shares residing in the Jurisdictions, along with an Englishtranslation for convenience purposes, and will be concurrentlyfiled with the Decision Makers. A public announcement in anational Canadian newspaper, made at the same time as thepublic announcement in a national German newspaper, will specifywhere and how the shareholders may obtain a copy of the OfferDocument or an English convenience translation free of charge.
14. The de minimis take-over bid exemptionsfound in certain of the Jurisdictions are not available tothe Target since the bid is not being made in compliance withthe laws of a jurisdiction that is recognized by the applicableDecision Makers for the purposes of the de minimistake-over bid exemptions. Also, because the Target does notmaintain a share register, the Applicant is unable to determineconclusively the number of holders of the Target's PreferredShares resident in each of the Jurisdictions, or the numberof Preferred Shares held by any such persons.
15. All of the holders of the Target's PreferredShares to whom the Offer is made will be treated equally.
16. An exemption from the Registration Requirementsis not available in certain of the Jurisdictions for tradesmade in connection with the Offer.
17. An exemption from the Prospectus Requirementsis not available in certain of the Jurisdictions for tradesmade in connection with the Offer.
18. If the requested relief is not granted,holders of the Target's Preferred Shares resident in the Jurisdictionswill not have the opportunity to participate in the Offer.
AND WHEREAS under the MRRS, this DecisionDocument evidences the decision of each of the Decision Makers(the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Maker with the jurisdiction to make theDecision has been met;
THE DECISION of the Decision Makers underthe Legislation is that:
(a) the Applicant is exempt from the Take-overBid Requirements in making the Offer to the shareholders ofthe Target who are resident in the Jurisdictions providedthat:
(i) the Offer and all amendments to theOffer are made in compliance with the laws of Germany,
(ii) any material relating to the Offerthat is sent to the holders of the Target's Preferred Sharesin Germany will be sent to the holders of the Target's PreferredShares resident in the Jurisdictions as well as an Englishconvenience translation, and copies thereof filed with theDecision Maker in each Jurisdiction; and
(iii) a public announcement in a nationalCanadian newspaper, made at the same time as the publicannouncement in a national German newspaper, will specifywhere and how the shareholders may obtain a copy of theOffer Document or an English convenience translation freeof charge;
(b) the Registration Requirements shall notapply to trades made in connection with the Offer; and
(c) the Prospectus Requirements shall notapply to trades made in connection with the Offer providedthat the first trade in Savings Shares issued by the Applicantin connection with the Offer shall be a distribution or aprimary distribution to the public unless, in all Jurisdictionother than Québec, the conditions of subsection (1)of section 2.14 of Multilateral Instrument 45-102 are satisfied,and, in Québec, the alienation of Saving Shares issuedby the Applicant in connection with the Offer are executedthrough the facilities of an exchange or market outside ofCanada.
July 29, 2003.
"Paul M. Moore"
"H. Lorne Morphy"