Policy Statement 11-203 respecting Process for Exemptive Relief Applications in Multiple Jurisdictions -- Filers granted exemption from the prohibition against entering into any collateral agreement, commitment or understanding in section 97.1 of the Securities Act (Ontario) -- The collateral agreements are for the purpose of providing financing to fund the offer, under commercially reasonable terms -- The financing is unrelated to the deposit of common shares under the offer -- The equity commitment letters and the funding term sheet are not unusual for equity financings in the context of a take-over bid.
Relevant Legislative Provisions
Securities Act (Ontario), R.S.O. 1990, c. S.5, ss. 97.1, 104(2)(a).
July 16, 2010
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
QUÉBEC AND ONTARIO
(the "Jurisdictions" )
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
OPE LGI INC. (the "Offeror") AND
SGF TECH INC. ("SGF Tech" and, together with
the Offeror, the "Filers")
The securities regulatory authority or regulator in each of the Jurisdictions (each, a "Decision Maker") has received an application from the Filers for a decision under the securities legislation of the Jurisdictions (the "Legislation") for an exemption from the prohibition against entering into any collateral agreement, commitment or understanding that has the effect, directly or indirectly, of providing a security holder of an offeree issuer with consideration of greater value than that offered to the other security holders of the same class of securities in connection with the Collateral Agreements (as defined below) (the "Exemption Sought").
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
a) the Autorité des marchés financiers is the principal regulator for this application;
b) the Filers have provided notice that section 4.7(1) of Regulation 11-102 respecting Passport System ("Regulation 11-102") is intended to be relied upon in the provinces of British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon, Northwest Territories and Nunavut; and
c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in Regulation 14-101 respecting Definitions and Regulation 11-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filers:
1. Logibec Groupe Informatique Ltée ("Logibec") was incorporated on December 16, 1982 under the Canada Business Corporations Act ("CBCA") and its registered office is located at 700 Wellington Street, Suite 1500, Montréal, Québec, H3C 3S4. Logibec is a reporting issuer in British Columbia, Alberta, Ontario and Québec. Its authorized share capital currently consists of an unlimited number of common shares (the "Common Shares"), without par value, and an unlimited number of preferred shares, without par value, issuable in series. As at May 27, 2010, the issued and outstanding share capital of Logibec was comprised of 9,099,181 Common Shares. The Common Shares trade on the Toronto Stock Exchange under the symbol "LGI".
2. The Offeror was incorporated on May 21, 2010 under the CBCA and its registered office is located at 200 Bay Street, Royal Bank Plaza, South Tower, Suite 2010, Toronto, Ontario, M5J 2J2. The Offeror is a new acquisition company, which is majority-owned indirectly by OMERS Administration Corporation ("OMERS") for and on behalf of OMERS pension plans. The Offeror is not a reporting issuer in any jurisdiction of Canada. The Offeror is managed by OMERS Private Equity Inc. ("OPE").
3. OPE was incorporated on October 15, 2004 under the laws of Ontario and its head office is located at 200 Bay Street, Royal Bank Plaza, South Tower, Suite 2010, Toronto, Ontario, M5J 2J2. OPE is the entity responsible for identifying and managing the private equity investments of OMERS, the administrator of the OMERS pension plans that comprise the Ontario Municipal Employees Retirement System. OPE is not a reporting issuer in any jurisdiction of Canada.
4. As at June 4, 2010, neither the Offeror nor OPE, nor any director or officer of the Offeror or OPE nor, to the knowledge of the Offeror and OPE, after reasonable inquiry, any insider of the Offeror or OPE other than a director or officer of the Offeror or OPE, any associate or affiliate of any insider of the Offeror or OPE, or any person acting jointly or in concert with the Offeror or OPE, beneficially owned or exercised control or direction over, any securities of Logibec, except for rights pursuant to a support agreement between Logibec and the Offeror dated May 27, 2010 (the "Support Agreement").
5. SGF Tech was incorporated on November 18, 1988 under the laws of Québec and is a wholly-owned subsidiary of Société générale de financement du Québec ("SGF" and, together with SGF Tech, the "SGF Group"). SGF Tech's head office is located at 600 de La Gauchetière Street West, Suite 1500, Montréal, Québec, H3B 4L8. SGF Tech is not a reporting issuer in any jurisdiction of Canada. SGF Tech owns 490,000 Common Shares, representing approximately 5.4 % of the issued and outstanding Common Shares as at May 27, 2010.
6. SGF was created by the Government of Québec on July 6, 1962 and its head office is located at 600 de La Gauchetière Street West, Suite 1500, Montréal, Québec, H3B 4L8. SGF, an industrial and financial holding company, has a mission to carry out economic development projects, particularly in the industrial sector, in cooperation with partners and in compliance with accepted profitability requirements and the economic development policy of the Québec government. As part of its new mandate, SGF is authorized by the Québec government to go beyond its traditional role as an equity investor by offering complementary solutions, such as loans, and investments by way of debentures or preferred shares. SGF is not a reporting issuer in any jurisdiction of Canada.
7. The SGF Group does not have any equity or other interest in the OMERS Group (as defined below) or in OPE, nor is it acting in concert with the Offeror, the OMERS Group or OPE.
8. None of the Offeror, OMERS, OPE, SGF, SGF Tech or Logibec are in default of securities legislation in any jurisdiction.
9. The Offeror has made an offer (the "Offer") to purchase all of the issued and outstanding Common Shares for a cash purchase price of $26.00 per Common Share (the "Offer Consideration"). The Offer is conditional upon, among other things, obtaining regulatory approval and there being validly deposited under the Offer and not withdrawn at least 66 2/3% of the outstanding Common Shares prior to the expiry of the Offer, as it may be extended, held by holders of a sufficient number of Common Shares to allow the Offeror to undertake a second step business combination. On June 10, 2010, the Offeror filed a take-over bid circular and the board of directors of Logibec filed a directors' circular in respect of the Offer (collectively, the "Offer Documentation"). The intent to effect a going-private transaction has been disclosed in the Offer Documentation.
10. On May 27, 2010 and in connection with the announcement of the Offer, the Offeror and Logibec entered into the Support Agreement. Pursuant to the Support Agreement, Logibec has resolved to cooperate with the Offeror and take all reasonable actions to support the making of the Offer and to recommend that shareholders of Logibec accept the Offer, all on the terms and subject to the conditions of the Support Agreement. The Offeror is entitled to receive a break-fee and re-imbursement of its expenses (together, the "Break Fee") in certain circumstances if the Support Agreement is terminated.
11. On the same date, the Offeror and SGF Tech entered into a "soft" lock-up agreement (the "SGF Lock-Up Agreement"), pursuant to which SGF Tech agreed to support the Offer and, on or before the tenth business day prior to expiry of the Offer, cause all of its Common Shares to be validly tendered in acceptance of the Offer. SGF Tech remains free to tender its Common Shares to other parties making competing offers for the Common Shares if, among other reasons, the terms of the Offer are not in conformity with those set out in the Support Agreement or the Support Agreement is terminated.
12. On May 27, 2010, certain shareholders of Logibec, namely Mr. Claude Roy, Logibec's President and Chief Executive Officer, 117401 Canada Inc., Les Services De Gestion Claude Roy Inc., two corporations controlled by Mr. Roy and Sylvie Roy, Mr. Roy's spouse, and the Offeror entered into a similar "soft" lock-up agreement pursuant to which they agreed to support the Offer and cause all of their Common Shares to be validly tendered in acceptance of the Offer.
13. The Offer Consideration to be received by SGF Tech under the Offer upon tendering its Common Shares as contemplated by the SGF Lock-Up Agreement is identical to that received by any other holder of Common Shares.
14. On May 27, 2010, SGF Tech and OPE entered into equity commitment letters for the benefit of the Offeror ("Equity Commitment Letters"), pursuant to which OPE agreed to contribute (or cause to be contributed) $110 million and SGF Tech agreed to contribute (or cause to be contributed) $10 million to the share capital of the Offeror in order to fund part of its financial obligations under the Offer. The Equity Commitment Letters were in addition to debt commitment letters delivered to the Offeror by third party lenders.
15. On May 27, 2010, OPE, the SGF Group and others entered into a funding term sheet agreement (the "Funding Term Sheet"), pursuant to which:
(a) as discussed above, SGF Tech agreed to indirectly contribute $10 million to the share capital of the Offeror;
(b) other entities managed by OPE (the "OMERS Group") agreed to indirectly contribute $110 million to the share capital of the Offeror;
(c) the capital contribution of each of OMERS Group and SGF Tech provides them with equally ranking rights, and pro-rata residual participation and voting rights. Assuming the financial parameters for the Offer are in accordance with the terms set out in the Funding Term Sheet, the contribution and resulting equity and voting ownership in the Offeror by members of the OMERS Group, on the one hand, and SGF Group, on the other hand, will be 91.67% and 8.33%, respectively;
(d) the SGF Group will not be given any seats on the board of directors of the Offeror and will not have sufficient voting power to exercise any form of control or direction over the Offeror; and
(e) immediately prior to the time that the Offeror will first take up and pay for Common Shares pursuant to the terms of the Offer, the OMERS Group and SGF Tech will enter into a shareholder agreement (the "Shareholder Agreement", and together with the Equity Commitment Letters and the Funding Term Sheet, the "Collateral Agreements") that will contain: (i) certain restrictions on transfer with respect to their indirect interest in the Offeror, (ii) certain limited tag-along, drag-along and pre-emptive rights, (iii) certain information rights with respect to the Offeror and Logibec, and (iv) rights to ensure that, for a period of two years following the closing of the transactions contemplated by the Offer and the Support Agreement, Logibec will maintain its registered office, principal place of business and operational headquarters in the Province of Québec.
16. Other than the SGF Lock-Up Agreement and the Collateral Agreements, the SGF Group does not have any other agreement, commitment or understanding with the OMERS Group, OPE or the Offeror, including any agreement, commitment or understanding with respect to any sale by the SGF Group of its indirect interest in the Offeror (or an affiliate) to the OMERS Group or OPE or any redemption or purchase of such interest by the Offeror following the completion of the Offer.
17. The Offeror may proceed with the Offer with or without the support of SGF Tech since SGF Tech's holding represents approximately 5.4 % of the issued and outstanding Common Shares as at May 27, 2010 and that failure by SGF Tech to tender its Common Shares under the Offer is, in itself, insufficient to prevent the Offer or any subsequent compulsory acquisition. The SGF Group (i) has no ability to prevent the Offeror from completing the Offer or to object to any amendment to the Offer, (ii) does not have the right to require the Offeror to pursue the Offer if the Offeror decides not to do so, and (iii) is not entitled to the Break Fee, or any portion thereof, if the Support Agreement or the Offer is terminated.
18. After the completion of the Offer, although the SGF Group will have an equity interest in the Offeror, it will not hold a sufficient number of the voting rights attached to the outstanding voting securities of the Offeror to materially affect its control.
19. None of the SGF Group nor any insider of the SGF Group will receive any payments, including change of control payments, in connection with the Offer.
20. The SGF Lock-Up Agreement is not conditional upon the execution of the Collateral Agreements, and the Collateral Agreements are not conditional upon the execution of the SGF Lock-up Agreement.
21. The Equity Commitment Letters and the Funding Term Sheet were agreed to for business purposes relating to the structuring and making of the Offer and they are not unusual for equity financings in the context of take-over bids
22. The Shareholder Agreement will be entered into immediately prior to the Offeror taking up and paying for the Common Shares, if the Offer is accepted by the required level of approval and certain conditions are met. To the extent it is entered into, the purpose of the Shareholder Agreement will be to provide arrangements consistent with those typically put in place by shareholders in a closely held corporation.
23. The Collateral Agreements are entered into for the benefit of both the OMERS Group and the SGF Group, in that they address their relationship in the event the conditions of the Offer are met and the Common Shares are taken up by the Offeror and they impose reciprocal obligations.
24. The material terms of the Collateral Agreements have been disclosed and described in the Offer Documentation.
25. National Bank Financial has advised the board of directors of the Offeror that the material terms of the Equity Commitment Letters and the Funding Term Sheet, taken as a whole, are commercially reasonable to the Offeror in the context of the Offer.
26. The purpose of the Collateral Agreements was not to (a) provide the SGF Group with consideration of greater value than that offered to other holders of Common Shares, (b) provide them with a collateral benefit or (c) induce them to tender their Common Shares into the Offer.
Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
The decision of the Decision Makers under the Legislation is that the Exemption Sought is granted.