AGA Foodservice Group plc. - s. 104(2)(c)

le 19 avril 2001

Order

IN THE MATTER OF

THE SECURITIES ACT,

R.S.O. 1990, CHAPTER S.5, AS AMENDED

(the "Act")

AND

IN THE MATTER OF

AGA FOODSERVICE GROUP PLC

ORDER

(Section 104(2)(c))

UPON the application (the "Application") of AGA Foodservice Group plc ("AGA") and Dresdner Kleinwort Wasserstein and Hoare Govett Limited (collectively the "Investment Advisors") to the Ontario Securities Commission (the "Commission") for an order pursuant to clause 104(2)(c) of the Act exempting AGA and the Investment Advisors from the requirements of sections 95 through 100 of the Act (the "Issuer Bid and Take-over Bid Requirements") in connection with the proposed tender offer (the "Offer") by AGA and the Investment Advisors to the holders of AGA ordinary shares (the "AGA Shares"), whereby the Investment Advisors will purchase issued and outstanding AGA Shares (the "Initial Offer") and, immediately thereafter, AGA will purchase from the Investment Advisors for cancellation the AGA Shares so purchased by the Investment Advisors (the "Subsequent Offer");

AND UPON considering the Application of AGA and the Investment Advisors and the recommendation of the staff of the Commission;

AND UPON AGA and the Investment Advisors having represented to the Commission that:

1. AGA is a company incorporated under the laws of England and Wales and the AGA Shares are listed on the London Stock Exchange (the "LSE").

2. AGA is not a reporting issuer under the securities legislation of any province or territory in Canada and none of the AGA Shares are listed for trading on any Canadian stock exchange.

3. As at April 9, 2001, AGA had 257,429,877 AGA Shares issued and outstanding.

4. The Investment Advisors are regulated in the United Kingdom by The Securities and Futures Authority Limited and are acting exclusively on behalf of AGA in connection with the Offer.

5. On March 9, 2001, AGA (then called Glynwed International plc) sold its worldwide pipe systems business to Etex Group S.A. for cash consideration of £786 million. Through the Offer, AGA proposes to return to the holders of AGA Shares up to £386 million of such amount.

6. The Offer is an all-cash offer and will be implemented in two stages. During the Initial Offer, the Investment Advisors will purchase, as principal, issued and outstanding AGA Shares for up to a total value of £386 million. In the Subsequent Offer, the Investment Advisors will sell the AGA Shares they purchased in the Initial Offer to AGA at the Strike Price (as defined in paragraph 8(c) below). AGA will then cancel such AGA Shares.

7. The Offer is conditional upon the passing of a resolution at AGA's Extraordinary General Meeting to be held on May 10, 2001 authorizing the making of the Offer and upon at least 12,871,492 AGA Shares, representing approximately five percent of AGA's issued and outstanding share capital, being validly tendered by May 10, 2001.

8. The Initial Offer will be made according to a modified Dutch auction procedure as follows:

(a) AGA Shares may be tendered in a price range which will be set with reference to the market price of the AGA Shares in the week prior to the mailing of the circular in connection with the Offer (the "Price Range"). AGA Shares may only be tendered within the Price Range.

(b) In the alternative, holders of AGA Shares (the "AGA Shareholders") may elect to tender their AGA Shares at the Strike Price (as defined below).

(c) The strike price (the "Strike Price") payable for AGA Shares will be the lowest price per AGA Share which, following scaling down but before rounding down (as described in paragraph 8(e)(iii) below), will allow the Investment Advisors to purchase AGA Shares with an aggregate purchase value not exceeding £386 million or, if AGA Shares with a value (at the Strike Price) of less than £386 million are tendered, the highest price within the Price Range at which AGA Shares are tendered.

(d) All AGA Shares validly acquired by the Investment Advisors under the Offer, whether tendered at a specified price equal to or below the Strike Price or elected to be tendered at the Strike Price, will be purchased at the Strike Price.

(e) Valid tenders at or below the Strike Price will be accepted as follows:

(i) all tenders made at a specified price below the Strike Price will be accepted in full;

(ii) tenders of up to 1000 AGA Shares elected to be tendered at the Strike Price will be accepted in full, but only in respect of those shareholders with a registered holding of 1000 AGA Shares or less on May 10, 2001 who elect to make a tender at the Strike Price in respect of all the AGA Shares in their holdings; and

(iii) tenders elected at the Strike Price in respect of more than 1000 AGA Shares will be subject to being scaled down pro rata (with any fractions being rounded down) in the event that the number of shares tendered at the Strike Price would result in the Investment Advisors paying more than a total consideration of £386 million for the purchased AGA Shares.

(f) Tenders above the Strike Price will be rejected.

9. The Offer is being made in compliance with the laws of the United Kingdom, the rules and regulations of the LSE and the Listing Rules of the UK Listing Authority, and not pursuant to any exemption from such requirements.

10. The City Code on Take-overs and Mergers (the "City Code") does not apply to the Offer.

11. As at April 9, 2001 there were only nine AGA Shareholders whose last address as shown on the books of AGA is in Ontario (collectively, the "Ontario AGA Shareholders"), holding, in the aggregate, 14,918,128 AGA Shares, representing 5.795% of the issued and outstanding AGA Shares.

12. As at April 9, 2001, one of the nine Ontario AGA Shareholders owned 14,910,000 AGA Shares, representing 5.79% of the issued and outstanding AGA Shares.

13. The Offer is being made on the same terms and conditions to the Ontario AGA Shareholders as it is being made to AGA Shareholders resident in the United Kingdom.

14. The Offer may technically be a take-over bid within the meaning of subsection 89(1) of the Act as the Initial Offer is being made to the Ontario AGA Shareholders.

15. The Offer may also be construed as an indirect issuer bid within the meaning of subsection 89(1) of the Act and section 92 of the Act.

16. Although the Commission has recognized the laws of the United Kingdom for the purposes of clauses 93(1)(e) and 93(3)(h) of the Act, AGA and the Investment Advisors cannot rely upon the exemption in clause 93(1)(e) and 93(3)(h) from the Issuer Bid and Take-over Bid Requirements because the Ontario AGA Shareholders hold, in the aggregate, more than 2% of the issued and outstanding AGA Shares and the City Code does not apply to the Offer.

17. All materials relating to the Offer which are provided to holders of AGA Shareholders resident in the United Kingdom will be concurrently sent to the Ontario AGA Shareholders and be filed with the Commission.

AND UPON the Commission being satisfied that to do so would not be prejudicial to the public interest;

IT IS ORDERED pursuant to clause 104(2)(c) of the Act that, in connection with the Offer, AGA and the Investment Advisors are exempted from the Issuer Bid and Take-over Bid Requirements, provided that:

(a) the Offer and any amendments thereto are made in compliance with the laws of the United Kingdom, the rules and regulations of the LSE and the Listing Rules of the UK Listing Authority, and not pursuant to an exemption from such requirements; and

(b) all materials relating to the Offer and any amendments thereto that are sent by or on behalf of AGA and the Investment Advisors to AGA Shareholders residing in the United Kingdom are also concurrently sent to the Ontario AGA Shareholders and copies of such materials are filed with the Commission.

April 19, 2001

Paul M. Moore, R. Stephen Paddon