Securities Law & Instruments

Headnote

Cash take-over bid made in Ontario - Bid madein accordance with the laws of the United States of Americaand the Securities Exchange Act of 1934 - De minimisexemption unavailable because number of Ontario holders of offeree'sshares is believed to be 402, which exceeds the 50 person thresholdin section 93(1)(e) of the Securities Act (Ontario)- Bid exemptedfrom the requirements of Part XX, subject to certain conditions.

Statutes Cited

Securities Act, R.S.O. 1990, c. S.5, as amended,ss. 93(1)(e), 95-100 and 104(2)(c).

Recognition Orders Cited

In the Matter of the Recognition of CertainJurisdictions Recognition Order (Clauses 93(1)(e) and 93(3((h)of Act) (1997), 20 OSCB 1035.

IN THE MATTER OF

THE SECURITIES ACT,

R.S.O. 1990, CHAPTER S.5,AS AMENDED (the "Act")

AND

IN THE MATTER OF

ARVINMERITOR, INC. AND DELTAACQUISITION CORP.

(collectively, the "Applicants")

 

ORDER

(Clause 104(2)(c))

UPON the application from the Applicantsto the Ontario Securities Commission (the "Commission")for an order pursuant to clause 104(2)(c) of the Act exemptingthe Applicants from the requirements of sections 95 through100 of the Act (the "Take-Over Bid Requirements")in connection with an offer, as it may be amended from timeto time (the "Offer"), by Delta Acquisition Corp.(the "Purchaser") to acquire (1) the shares of commonstock (the "Shares") of Dana Corporation (the "Company")that ArvinMeritor, Inc. ("ArvinMeritor") does notalready own and (2) unless and until validly redeemed by theboard of directors of the Company, the associated rights topurchase shares of Series A Junior Participating Preferred Stock,no par value, of the Company (the "Rights") issuedpursuant to the Rights Agreement, dated as of April 25, 1996(as amended from time to time, the "Rights Agreement"),by and between the Company and Chemical Mellon Shareholder ServicesL.L.C., as Rights Agent, at a price of US$15.00 per Share, uponthe terms and subject to the conditions set forth in the offerto purchase (the "Offer to Purchase") dated July 9,2003. Unless the context otherwise requires, all referencesto the Shares shall be deemed to include the associated Rights,and all references to the Rights shall be deemed to includethe benefits that may inure to holders of Rights pursuant tothe Rights Agreement;

AND UPON the Commission considering theapplication and the recommendation of the staff of the Commission:

AND UPON the Applicants representingto the Commission that:

1. ArvinMeritor, an Indiana corporation, isa leading global supplier of a broad range of integrated systems,modules and components serving light vehicle, commercial truck,trailer and specialty original equipment manufacturers andcertain after markets. ArvinMeritor also provides coil coatingapplications to the transportation, appliance, constructionand furniture industries. Its executive offices are locatedin Troy, Michigan.

2. The Purchaser, a Virginia corporation formedfor the purpose of making the Offer, is a wholly-owned subsidiaryof ArvinMeritor.

3. ArvinMeritor is not a reporting issuer,or its equivalent, in any Canadian jurisdiction. ArvinMeritorcommon stock is listed on the New York Stock Exchange.

4. The Company is a Virginia corporation andan independent supplier of automotive parts. Its executiveoffices are located in Toledo, Ohio. Publicly available documentsindicate that it is not a reporting issuer, or its equivalent,in any Canadian jurisdiction and none of its securities arelisted or quoted for trading on any Canadian stock exchangeor market.

5. According to the Company's Quarterly Reporton Form 10-Q for the quarterly period ended June 30, 2003,there were 148,611,000 Shares issued and outstanding as atJuly 18, 2003. The Shares are listed on the New York StockExchange.

6. The Rights were created pursuant to implementationof the Company's "poison pill" in 1996. Each Sharecertificate represents shares of common stock and correspondingRights, being rights to purchase 1/1000 of a share of SeriesA Junior Participating Preferred Stock per share of commonstock represented by such certificate.

7. Rights are not exercisable until a "distribution"of the Rights occurs. In the event of a distribution, underthe terms of the poison pill, ArvinMeritor and its affiliateswill not be entitled to any Rights. Therefore, the poisonpill would impede and perhaps frustrate ArvinMeritor's attemptto merge with the Company following the consummation of theOffer.

8. If a distribution does not occur, a tenderof Shares includes a tender of the associated Rights. If adistribution does occur, an offeree will have to tender oneRight with each Share tendered. The Purchaser will not payany additional consideration for the tender of a Right.

9. As at July 9, 2003, the date of the Offerto Purchase, ArvinMeritor owned 1,085,300 Shares.

10. On July 9, 2003, the Purchaser filed aTender Offer Statement on Schedule TO with the U.S. Securitiesand Exchange Commission in connection with the Offer. TheOffer was made to all holders of Shares, including those withaddresses in Canada. The Offer was scheduled to expire at5:00 p.m. on August 28, 2003, unless extended.

11. On July 22, 2003, the Company announcedthat its board of directors recommended that holders of Sharesreject the Offer.

12. At 5:00 p.m. on August 28, 2003, holdersof Shares had tendered and not withdrawn approximately 2,543,879Shares.

13. On August 28, 2003, ArvinMeritor announcedthat it had extended the Offer until 5:00 p.m. on October2, 2003, unless further extended.

14. To the knowledge of ArvinMeritor, as ofAugust 20, 2003, there are 402 holders of Shares with addressesin Ontario holding an aggregate of 107,218 Shares representingan aggregate of 0.072% of the Shares.

15. The Purchaser cannot rely on the exemptionset forth in clause 93(1)(e) of the Act as there are morethan 50 registered holders of Shares with addresses in Ontario.

16. The Offer has been made to Ontario holdersof Shares on the same terms and conditions as to all otherholders of Shares.

17. The Offer to Purchase and all other documentsrelating to the Offer, including all amendments, sent by thePurchaser to holders of Shares with addresses outside Ontariohave been and will be sent concurrently to Ontario holdersof Shares and to the Commission.

AND UPON the Commission being satisfiedthat to so order would not be prejudicial to the public interest;

IT IS HEREBY ORDERED pursuant to clause104(2)(c) of the Act that the Applicants are exempt from theTake-Over Bid Requirements in connection with the Offer providedthat:

1. the Offer and all amendments to the Offerare made in compliance with the Securities Exchange Actof 1934 and the rules made thereunder governing take-overbids and are not exempt therefrom; and

2. the Offer to Purchase and all other documentsrelating to the Offer, including any amendments, that aresent by or on behalf of the Purchaser to holders of Shareswith addresses outside Ontario are concurrently sent to Ontarioholders of Shares and to the Commission.

September 30, 2003.

"Wendell S. Wigle"
"H. Lorne Morphy"