Background

The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction (the “Legislation”) for

an exemption from the prospectus requirements of the Legislation (the “Prospectus Relief”) so that such requirements do not apply to trades in ordinary shares (the “Shares”) of the Filer by Stichting Lovinklaan (the “Trust”), a foundation established to promote the interests of the Filer’s employees and to stimulate the Filer’s employees to invest in Shares of the Filer, Custodian (and successor parties involved with the administration of the Employee Share Offering) and the Canadian Affiliates (all as defined below), all made pursuant to the Employee Share Offering (as defined below) to, on behalf of or with Qualifying Employees (as defined below) employed in the Jurisdiction or in the Provinces of Alberta, British Columbia, Manitoba, Québec, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island and Saskatchewan and the Territories of Northwest Territories, Nunavut, and Yukon (collectively, the “Canadian Employees” and Canadian Employees who subscribe for or who are issued Shares, the “Canadian Participants”); and
an exemption from the dealer registration requirements of the Legislation (the “Registration Relief”) so that such requirements do not apply to the Filer, Trust, Custodian (and successor parties involved with the administration of the Employee Share Offering) and the Canadian Affiliates in respect of trades in Shares made pursuant to the Employee Share Offering to, on behalf of or with Canadian Participants.

(the Prospectus Relief and the Registration Relief, collectively, the “Offering Relief”)

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application),

(a) the Ontario Securities Commission is the principal regulator for this application, and

(b) the Filer 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 the Provinces of Alberta, British Columbia, Manitoba, Québec, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island and Saskatchewan and the Territories of Northwest Territories, Nunavut, and Yukon (together with the Jurisdiction, the “Jurisdictions”).

Interpretation

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

Representations

This decision is based on the following facts represented by the Filer:

The Filer is a corporation formed under the laws of the Netherlands. It is not, and has no current intention of becoming, a reporting issuer under the Legislation or the securities legislation of the other Jurisdictions. The head office of the Filer is located in Amsterdam, the Netherlands and the Shares are listed on NYSE Euronext (the “Stock Exchange”). The Filer is not in default under the Legislation or the securities legislation of the other Jurisdictions.
The Filer carries on business in Canada through certain subsidiaries and affiliated companies including SENES Consultants Limited, with its registered address at 121 Granton Drive, Richmond Hill, ON L4B 3N4, and DCS Limited with its registered office at 121 Granton Drive, Unit 11, Richmond Hill, Ontario L4B 3N4 (collectively, the “Canadian Affiliates”). Each of the Canadian Affiliates is a direct or indirect controlled subsidiary of the Filer and is not, and has no current intention of becoming, a reporting issuer under the Legislation or the securities legislation of the other Jurisdictions. None of the Canadian Affiliates is in default under the Legislation or the securities legislation of the other Jurisdictions.
The Filer and the Trust have established a global employee share offering for employees of the Filer (the “Employee Share Offering”) and would like to extend the Employee Share Offering to Canadian Employees. As of the date hereof and after giving effect to the Employee Share Offering, Canadian residents do not and will not beneficially own (which term, for the purposes of this paragraph, is deemed to include all Shares held on a share sub account maintained by the Trust on behalf of Canadian Participants) more than 10% of the Shares and do not and will not represent in number more than 10% of the total number of holders of the Shares as shown on the books and records of the Filer.
The Trust was founded in 1982 in order to ensure the continuity of the Filer, to promote the interests of the Filer’s employees and to stimulate the Filer’s employees to participate in the Employee Share Offering or other similar programs. The Trust holds approximately 20% of the outstanding Shares of the Filer and is the Filer’s largest shareholder.
The Trust is a foundation, and is registered with the Dutch Chamber of Commerce under the following registration number: 41048396. Only Qualifying Employees (as defined below) will be allowed to hold Shares purchased pursuant to the Employee Share Offering (the “Plan Shares”).
The Employee Share Offering is comprised of an offering of Shares to be subscribed for or purchased at a discounted purchase price financed by the Trust, subject to the discretion of the supervisory boards of the Employee Share Offering board and the Trust.
Only persons who are employees of the Filer or an affiliate or subsidiary during the subscription period for the Employee Share Offering and who meet other employment criteria (the “Qualifying Employees”) will be allowed to participate in the Employee Share Offering.
The Employee Share Offering was established for the purposes of implementing employee share offerings and plans of the Filer. There is no current intention for the Trust to become a reporting issuer under the Legislation or the securities legislation of the other Jurisdictions.
All Plan Shares acquired through the Employee Share Offering are subject to a hold period of one year (the “Lock-Up Period”), subject to certain exceptions prescribed by Dutch law and adopted under the Employee Share Offering (such as a release on death or termination of employment).
Under the Employee Share Offering, the subscription price will be the last available closing trading price of a Share on the Stock Exchange as reported by Bloomberg or any other appropriate source (the “Fair Market Value”) on the last date of the relevant 1 (one) month period during which a Canadian Participant authorizes deductions for the purpose of purchasing Plan Shares pursuant to this Employee Share Offering, less a 20% (twenty percent) discount thereof.
Canadian Employees who wish to subscribe will authorize their employer to make a payroll deduction to be held in a cash sub account maintained by the Trust on behalf of the Canadian Participant (such contribution, the “Employee Contribution”). For each Canadian Participant who authorizes such deduction, the entity employing such Canadian Participant will transfer the Employee Contribution to a cash sub account maintained by the Trust for the benefit of the Canadian Participant.
Ultimately, upon receipt of the Employee Contributions, the Trust will apply the cash received to pay for Plan Shares owned by the Trust, or bought in the open market for purpose of the offering under the Employee Share Offering, and transfer such Plan Shares for the benefit of the Canadian Participant and hold such Plan Shares in a share sub account for the benefit of the Canadian Participant.
At the end of the Lock-Up Period a Canadian Participant may:

(a) request the sale of their Plan Shares held in consideration for a cash payment equal to the then market value of the Plan Shares less any deductions for costs and taxes related to this sale and without any interest, or

(b) request the transfer of their Plan Shares to a private share plan.

Upon termination of the Employee Share Offering, a Canadian participant continuing employment with their employer may:

(b) if the Lock-Up Period has expired, request the transfer of their Plan Shares to a private share plan.

Upon termination of a Canadian Participant’s employment with their employer, the Canadian Participant may:

(b) request the transfer of their Plan Shares to a private share plan.

Dividends paid on the Plan Shares will be automatically used by the Custodian to purchase additional Shares on behalf of the Canadian Participant without applying the 20 percent discount. The number of Shares to be received equals the net dividend payable divided by the Fair Market Value of the Shares on the date the dividend becomes payable. Such additional Shares are not subject to the Lock-Up Period.
The Trust is a foundation (“stichting”) under Dutch law with limited liability and qualifies as a non-profit institution. The Trust’s portfolio will consist almost entirely of Shares and may, from time to time, also include cash in respect of dividends paid on the Shares.
UBS Bank (the “Custodian”) is a portfolio management company governed by the laws of Switzerland. The Custodian is registered with the Swiss Financial Market Supervisory Authority as an investment manager and complies with - amongst others - the rules of the Swiss Banking Act, the Banking Ordinance, the Financial Market Supervision Act, as well as the Capital Adequacy Ordinance and the Collective Investment Schemes Act. To the best of the Filer’s knowledge, the Custodian is not, and has no current intention of becoming, a reporting issuer under the securities legislation of the Passport Jurisdictions.
The Custodian’s portfolio management activities in connection with the Employee Share Offering and the Trust are limited to administering Shares of the Filer, selling such Shares as necessary in order to fund redemption requests and investing available cash in Shares of the Filer.
All management charges relating to the Trust and Employee Share Offering will be paid from the assets of the Trust.
The Trust is responsible for preparing accounting documents and publishing periodic informational documents as provided by the rules of the Employee Share Offering. The Trust’s activities do not affect the underlying value of the Shares. To the best of the Filer’s knowledge, the Trust is not in default of the Legislation or the securities legislation of the other Jurisdictions.
Plan Shares will be deposited in a share sub account maintained with the Custodian. The Custodian carries out orders to purchase, trade and sell securities in the portfolio and takes all necessary action to allow the Trust to exercise the rights relating to the securities held in its portfolio.
Participation in the Employee Share Offering is voluntary, and the Canadian Employees will not be induced to participate in the Employee Share Offering by expectation of employment or continued employment.
The total monthly amount invested by a Canadian Participant in the Employee Share Offering cannot exceed the Canadian dollar equivalent, calculated in accordance with the terms of the Employee Share Offering, of EUR 400 (annual maximum of EUR 4,800).
None of the Filer, Custodian, Trust, Canadian Affiliates or any of their employees, agents or representatives will provide investment advice to the Canadian Employees with respect to an investment in the Shares.
The Shares are not currently listed for trading on any stock exchange in Canada and the Filer has no intention to have the Shares so listed. As there is no market for the Shares in Canada, and none is expected to develop, any first trades of Shares by Canadian Participants will be effected through the facilities of, and in accordance with the rules and regulations of, a foreign stock exchange outside of Canada.
Canadian Employees will receive, or will be notified of their ability to request, an information package on the Employee Share Offering which will include a summary of the terms of the Employee Share Offering. Canadian Participants will be expected to seek out and receive their own independent advice with respect to Canadian income tax consequences of subscribing for and holding the Plan Shares.
The Canadian Employees will also have access to the continuous disclosure materials relating to the Filer that are furnished to holders of the Shares generally.
Canadian Participants will receive an initial statement of their holdings under the Employee Share Offering, together with an updated statement at least once per year.
Canadian Participants will receive, or will be notified of their ability to request, an information package in the French or English language, according to their preference, which will include a summary of the terms of the Employee Share Offering and a tax notice containing a description of Canadian income tax consequences of subscribing to and holding the Shares and requesting the redemption of Shares.
There are approximately 144 Canadian Employees resident in Canada, with the greatest number resident in Ontario (119), and the remainder in the other Jurisdictions who represent, in the aggregate, less than 1% of the number of employees of the Filer and its affiliates worldwide.

Decision

The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.

The decision of the principal regulator under the Legislation is that the Offering Relief is granted provided that the prospectus requirements of the Legislation will apply to the first trade in any Shares acquired by Canadian Participants pursuant to this decision unless the following conditions are met:

(a) the issuer of the security

(i) was not a reporting issuer in any jurisdiction of Canada at the distribution date, or

(ii) is not a reporting issuer in any jurisdiction of Canada at the date of the trade;

(b) at the distribution date, after giving effect to the issue of the security and any other securities of the same class or series that were issued at the same time as or as part of the same distribution as the security, residents of Canada

(i) did not own, directly or indirectly, more than 10% of the outstanding securities of the class or series, and

(ii) did not represent in number more than 10% of the total number of owners, directly or indirectly, of securities of the class or series; and

(i) through an exchange, or a market, outside of Canada, or

(ii) to a person or company outside of Canada.

“Edward Kerwin” “Mary Condon”

Commissioner Commissioner

Ontario Securities Commission Ontario Securities Commission

Arcadis N.V. (Re), 2014 CanLII 56060

Case Summary

Background

Interpretation

Representations

Decision