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JOHN LABATT LTD. v. ONEX CORP.

June 8, 1995

JOHN LABATT LIMITED, Plaintiff, against ONEX CORPORATION, LBT ACQUISITION CORPORATION and QUILMES INDUSTRIAL, S.A., Defendants.


The opinion of the court was delivered by: MILTON POLLACK

 DECISION

 MILTON POLLACK, Senior District Judge:

 I. FINDINGS OF FACT

 A The Parties.

 1. Plaintiff John Labatt Limited ("Labatt") is a Canadian corporation with its principal place of business in Toronto, Ontario.

 2. There are two main segments to Labatt's business: "Brewing" and "Broadcast, Sports and Entertainment". The Broadcast, Sports and Entertainment segment includes, among other things, The Sports Network, The Discovery Channel (80%-owned) and Major League Baseball's Toronto Blue Jays (90%-owned).

 3. Labatt is a publicly traded company in Canada. Labatt shares are listed and posted for trading on The Toronto Stock Exchange, The Montreal Exchange and the Vancouver Stock Exchange.

 4. Labatt shares are not listed or posted for trading on the New York Stock Exchange or on any other market in the United States.

 5. There are no Labatt American Depository Receipts ("ADRs") listed or posted for trading on any U.S. stock exchange, on the National Association of Securities Dealers Automated Quotation System ("NASDAQ") or on any other market in the United States.

 6. According to Labatt, approximately 12% of Labatt's shares are owned by U.S. persons. Like all Labatt stock, the shares held by U.S. persons are traded only on the Canadian stock exchanges identified in paragraph 3, supra.

 7. Labatt, as a foreign private issuer, has opted under Securities and Exchange Commission ("SEC") Rule 12g3-2(b) to furnish the SEC with certain information including any disclosures it is required to make under Canadian law and any filings required by stock exchanges on which Labatt shares are listed. By doing so, Labatt is able to exempt itself from having to register its shares under Section 12 of the Securities Exchange Act of 1934 (the "'34 Act"), 15 U.S.C. § 78l. Tender offers for the shares of companies exempt from Section 12--like Labatt--are exempt from the disclosure and substantive requirements of Section 14(d) of the '34 Act, 15 U.S.C. § 78n(d).

 8. Defendant Onex Corporation ("Onex") is a Canadian corporation with its principal place of business in Toronto, Ontario.

 9. Onex is a diversified company, the subordinate voting shares of which are listed and posted for trading on The Toronto Stock Exchange and The Montreal Exchange.

 10. Onex shares are not listed or posted for trading on the New York Stock Exchange or on any other market in the United States.

 11. Defendant LBT Acquisition Corporation ("LBT") is a Canadian corporation with its principal place of business in Toronto, Ontario. It was incorporated on February 9, 1995, and was organized solely for the purpose of acquiring Labatt. A total of C$ 937.5 million has been committed to capitalize LBT, of which Onex, through its affiliates, will contribute C$ 173.5 million.

 12. LBT is a wholly-owned subsidiary of LBT Acquisition Holdings Corporation ("LBT Holdings"), a Canadian corporation with its principal place of business in Toronto, Ontario. LBT Holdings is a wholly-owned subsidiary of defendant Onex.

 13. Defendant Quilmes Industrial, S.A. ("Quinsa") is a Luxembourg holding company that owns 85% of Quilmes International (Bermuda) Limited ("QIB"). QIB is the leading brewer in the southern cone of South America, with operations in Argentina, Chile, Paraguay and Uruguay. Quinsa has committed to supply capital for LBT's tender offer by purchasing C$ 312.5 million in convertible notes of LBT Holdings.

 B. Labatt's Attempt to Adopt a "Poison Pill".

 14. In July 1994, Labatt's Board of Directors adopted a shareholder rights plan (or "poison pill"), which would have granted Labatt management certain defenses against an unwelcome takeover bid.

 15. Labatt management submitted the poison pill to Labatt shareholders for approval, as required by Canadian securities regulatory policies. At a shareholders' meeting on September 13, 1994, Labatt shareholders rejected the poison pill.

 C. LBT's Tender Offer for All Labatt Stock Held by non-U.S. Shareholders.

 16. On May 18, 1995, LBT commenced a tender offer (the "Offer") under the Canadian securities laws to acquire all Labatt common shares, excluding any Labatt shares held by or on behalf of U.S. persons.

 17. As Labatt concedes, under its express terms, LBT's Offer is not open to U.S. persons.

 18. LBT's Offer and Circular, along with other Offer documentation, clearly state that U.S. persons are excluded from the Offer and that LBT will not accept tenders made by or on behalf of U.S. shareholders:

 
"The Offer is not being made to, nor will deposits of Shares be accepted from or on behalf of, U.S. persons or other holders of Shares in any jurisdiction, including the United States, in which the making of the Offer or acceptance thereof would not be in compliance with the laws of such jurisdiction." (Offer and Circular at 2.)

 19. All Labatt shareholders accepting the Offer must make the following declaration in their Letter of Transmittal:

 
"The undersigned hereby declares that the undersigned (a) is not a U.S. person (as defined in Section 3 of the Offer), (b) is not acting for the account or benefit of any U.S. person and (c) is not in, or delivering this Letter of Acceptance and Transmittal from, the United States (as defined in Section 3 of the Offer)."

 20. This certification is structured from the safe harbor provisions of SEC Regulation S, which outlines the permissible ways of making an exchange offer outside the United States that is not subject to the registration requirements of the Securities Act of 1933 (the "'33 Act"). The definition of U.S. person precluded from tendering into the LBT Offer is found in Regulation S. Labatt concedes that neither Section 14(d) of the '34 Act nor SEC Regulation 14D applies to the Offer.

 21. In the Labatt Directors' Circular, which Labatt sent to all shareholders on May 29, 1995, Labatt acknowledged that "pursuant to its terms, the offer is not extended to Labatt shareholders resident in the United States" and actually criticized LBT's offer because it allegedly "unfairly discriminates against [U.S.] holders in that they are not being offered an opportunity . . . to participate in the offer".

 22. Tender offers in Canada must remain open for 21 calendar days. Thus, originally the Offer was to remain open until June 9, 1995. However, to reflect a decision of a Canadian court on June 2, 1995, LBT issued a Notice of Change and Variation on June 2 that extended the Offer to June 13, 1995, at 8:00 a.m.

 23. As disclosed in LBT's Offer and Circular, if the Offer is successful, LBT intends to acquire the remaining Labatt shares (including all U.S.-held shares) pursuant to a "second step" transaction in which shareholders who have not tendered (or were not eligible to tender) pursuant to the Offer will receive substantially the same consideration for their shares as shareholders who did tender.

 24. Also as disclosed in LBT's Offer and Circular, if the Offer is successful, LBT intends to sell Labatt's broadcast, sports and entertainment businesses, as well as certain of Labatt's non-core brewing assets, in order to refocus Labatt as a North American brewing company.

 25. The Offer provides for consideration of C$ 24.00 per tendered share, comprised of C$ 21 .25 in cash and C$ 2.75 in Cash Collateralized Notes ("Notes").

 26. LBT structured its offer to include Notes to address the policy of the Canadian Radio-television and Telecommunications Commission ("CRTC") that prohibits persons who directly or indirectly purchase broadcast assets regulated by the CRTC from shortly thereafter reselling such assets to obtain a financial gain.

 27. All the funds required to pay for the Labatt shares in cash will be disbursed by LBT, except for a portion of the funds which will be transferred to a trustee pursuant to the terms of a note indenture under which the Notes are to be issued.

 28. The Notes will be direct secured obligations of LBT and will be fully secured by the deposit of cash in the amount of the principal amount of the Notes. The trustee will invest that cash in 30-day treasury bills issued by the Government of Canada or in equivalent debt securities of, or guaranteed by, a Schedule I Canadian chartered bank.

 D. LBT Did Not Solicit Labatt's U.S. Shareholders.

 29. On May 18,1995, LBT held a press conference in Toronto to announce the Offer. No U.S. news organization was invited to the May 18 press conference. However a representative of The Wall Street Journal may have attended the conference.

 30. Press releases issued by LBT have stated that they are "NOT FOR RELEASE IN THE UNITED STATES", and the agency distributing press releases for LBT has deleted from the LBT distribution list the only U.S. company that appears on its media advisory list.

 31. There is no evidence that LBT conducted any U.S. press conferences or issued any U.S. press releases in connection with the Offer. Nor is there evidence that LBT attempted to stimulate any U.S. media coverage of the Offer.

 32. LBT is not buying Labatt shares on the market in Canada--from either Canadian or U.S. shareholders.

 33. On May 18, 1995, Quinsa issued a press release concerning its participation in the financing of LBT, which it distributed over BusinessWire and at the LBT press conference.

 34. The press release was disseminated by Quinsa in order to communicate with the owners of its shares, which are held in bearer form, that the company was investing US $ 230 million in the Offer. This represented a very significant investment for Quinsa, the annual sales of which approximate US $ 700 million.

 35. Quinsa also felt that a press release was necessary to inform securities analysts in Europe, North America and South America that the company's participation in the LBT financing was consistent with Quinsa's strategy of geographical diversification.

 36. The Quinsa press release was not intended to promote the LBT Offer or to solicit tenders by U.S. shareholders.

 37. Much of the publicity about LBT's Offer that has appeared in the financial press in the United States has been generated by Labatt itself. For example, Labatt's management has granted a number of interviews and has made several statements to the U.S. financial press.

 38. LBT did not mail any offering documents (i.e., the Offer and Circular, the Letter of Acceptance and Transmittal, and the Notice of Guaranteed Delivery) to any Labatt shareholders having an address of record in the United States and did ...


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