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Gazit-Globe Ltd.
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- exemption granted relief from requirement in NI 44-101 to incorporate by reference into a short form prospectus the Non-Incorporated Exhibits (as defined in the Decision) -- Non-Incorporated Exhibits typically lengthy and incorporation by reference would therefore impose a disproportionately burdensome translation obligation of the Issuer -- the terms of any Non-Incorporated Exhibit that constitute a material fact in respect of the Issuer are or will be set out in one or more of the Issuer's continuous disclosure documents that will be incorporated by reference into a short form prospectus of the Issuer
Applicable Legislative Provisions
National Instrument 44-101 Short Form Prospectus Distributions, ss. 8.1(1), 8.1(2).
Form 44-101F1 Short Form Prospectus, Items 11.1(1)1, 11.2.
November 12, 2013
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ONTARIO
(the “Jurisdiction”)
AND
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF
GAZIT-GLOBE LTD.
(the “Filer”)
DECISION
Background
The principal regulator in the Jurisdiction (the "Principal Regulator") has received an application from the Filer for an exemption (the "Requested Relief") from certain requirements under sections 11.1(1)1 and 11.2 of Form 44-101F1 Short Form Prospectus ("Form 44-101F1") to include in the documents incorporated by reference in any short form prospectus of the Filer the following documents attached or incorporated by reference as exhibits to an Annual Report on Form 20-F of the Filer or an amendment thereto (collectively, a "Form 20-F") that is incorporated by reference in any such short form prospectus (collectively, the "Non-Incorporated Exhibits"):
(a) material contracts and agreements, and any amendments thereto;
(b) articles of association and memorandum of association of the Filer, and any amendments thereto;
(c) instruments defining the rights of security holders and holders of debt of the Filer or any subsidiary, and any amendments thereto;
(d) indentures and supplemental indentures, and any amendments thereto;
(e) voting trust agreements and shareholders' agreements, and any amendments thereto;
(f) management contracts or compensatory plans, contracts or arrangements in which directors or members of management participate, including stock option plans and other award or incentive plans, and any amendments thereto;
(g) statements regarding the calculation of earnings per share or other ratios included in the Form 20-F;
(h) lists of the Filer's subsidiaries; and
(i) the certifications required under (i) Rule 13a-14(a) or 15d-14(a) of the Exchange Act and (ii) Rule 13a-14(b) or 15d-14(b) and Section 1350, Chapter 63, Title 18 of the United States Code (Section 906 of the Sarbanes-Oxley Act of 2002).
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 British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland & Labrador, the Northwest Territories, Yukon and the Nunavut Territory.
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
Representations
This decision is based on the following facts represented by the Filer:
1. The Filer is a limited liability corporation incorporated on June 11, 1982 in Israel under the Israeli Companies Law, as amended, which has its head office and registered office in Tel Aviv, Israel.
2. The ordinary shares of the Filer are listed on the Tel Aviv Stock Exchange, the New York Stock Exchange and the Toronto Stock Exchange (the "TSX").
3. The Filer's ordinary shares commenced trading on the TSX on October 16, 2013 at which point the Filer became a reporting issuer in Ontario. The Filer qualifies as an "SEC foreign issuer" within the meaning of section 1.1 of National Instrument 71-102 Continuous Disclosure and Other Exemptions Relating to Foreign Issuers ("NI 71-102") and an "SEC issuer" within the meaning of section 1.1 of National Instrument 51-102 Continuous Disclosure Obligations ("NI 51-102").
4. The Filer anticipates (i) filing a notice declaring its intention to be qualified to file a short form prospectus in substantially the form of Appendix A of National Instrument 44-101 Short Form Prospectus Distributions ("NI 44-101"), and (ii) filing a preliminary short form base shelf prospectus (the "Prospectus") in accordance with National Instrument 44-102 Shelf Distributions ("NI 44-102") in all of the Provinces and Territories of Canada (collectively, the "Jurisdictions") once qualified thereunder.
5. The Filer has filed on the System for Electronic Document Analysis and Retrieval ("SEDAR") an annual information form in the form of a Form 20-F for the year ended December 31, 2012, prepared under the United States Securities Exchange Act of 1934, as amended (the "Exchange Act") as permitted by NI 71-102 and NI 51-102, including each of the Non-Incorporated Exhibits attached to or incorporated by reference therein. The Filer will file on SEDAR any Non-Incorporated Exhibits attached to or incorporated by reference in a subsequent Form 20-F of the Filer, other than previously filed Non-Incorporated Exhibits, as soon as practicable following the filing of such disclosure documents with the U.S. Securities and Exchange Commission (the "SEC") and, in any event, prior to the filing of the Prospectus or any subsequently filed short form prospectus or prospectus supplement of the Filer on SEDAR.
6. The Filer is not in default of the securities legislation in any of the Jurisdictions.
7. The Filer is currently in compliance with the requirements of the Exchange Act and the United States Securities Act of 1933, as amended.
8. Pursuant to the Exchange Act requirements, the Non-Incorporated Exhibits are attached or incorporated by reference as exhibits to a Form 20-F.
9. As the Non-Incorporated Exhibits are attached or incorporated by reference as exhibits to a Form 20-F of the Filer that is or will be incorporated by reference in the Prospectus or any subsequently filed short form prospectus or prospectus supplement of the Filer, such Non-Incorporated Exhibits are or will be incorporated by reference in the Prospectus or such subsequently filed short form prospectus or prospectus supplement pursuant to the requirements of sections 11.1(1)1 and 11.2 of Form 44-101F1 absent the granting of the Requested Relief.
10. If the Filer filed an annual information form pursuant to Form 51-102F2 Annual Information Form (an "Annual Information Form") rather than a Form 20-F, none of the Non-Incorporated Exhibits would be required to be incorporated by reference into the Prospectus or any subsequent short form prospectus or prospectus supplement of the Filer, as the Exchange Act requirement to attach the Non-Incorporated Exhibits to a Form 20-F has no equivalent in Canadian securities law.
11. The terms of any Non-Incorporated Exhibit that constitute a material fact in respect of the Filer are or will be set out in one or more of the Filer's continuous disclosure documents that will be incorporated by reference into the Prospectus or any subsequently filed short form prospectus or prospectus supplement of the Filer.
12. Absent the granting of the Requested Relief, the Filer would be required under Section 40.1 of the Securities Act (Quebec) to translate into French each of the Non-Incorporated Exhibits. This translation obligation would impose significant costs and delay, which the Filer would not be required to incur if it filed an Annual Information Form rather than a Form 20-F.
13. The Filer's Application for the Requested Relief was prompted by the publication of Multilateral CSA Staff Notice 51-338 Continuous Disclosure and Prospectus Requirements Relating to Documents Prepared under the U.S. Securities and Exchange Act of 1934 dated March 7, 2013, which set out staff's position that exhibits to a Form 20-F filed as an annual information form are incorporated by reference into a short form prospectus for the purposes of Canadian securities laws and therefore are subject to the translation requirement under section 40.1 of the Securities Act (Quebec).
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 Requested Relief is granted, provided that:
(a) the Filer complies with all of the other applicable requirements of NI 44-101 and, if applicable, NI 44-102, in respect of the Prospectus and any subsequent short form prospectus or prospectus supplement;
(b) the Filer discloses in the Prospectus and any subsequent short form prospectus that it has obtained exemptive relief from the requirement to incorporate by reference in such prospectus the Non-Incorporated Exhibits, and includes a statement identifying the decision and explaining how a copy of the decision can be obtained;
(c) the Filer remains an "SEC issuer" (as defined in NI 51-102);
(d) the Filer files any Form 20-F on SEDAR concurrently with or as soon as practicable after the filing of such Form 20-F with the SEC; and
(e) the Filer files on SEDAR the Non-Incorporated Exhibits attached to or incorporated by reference in any Form 20-F of the Filer, other than previously filed Non-Incorporated Exhibits, as soon as practicable following the filing of such disclosure documents with the SEC and, in any event, prior to the filing of the Prospectus and any subsequent short form prospectus or prospectus supplement of the Filer on SEDAR.
"Sonny Randhawa"
Manager, Corporate Finance