Subsection 190(6) of the OBCA - Order granting relief from the 40 day noticerequirement of subsection 190(3) of the OBCA, in connection with an arrangement thatconstitutes a going private transaction.
Business Corporations Act, R.S.O. 1990, c.B.16, as amended, ss. 190(3), 190(6).
Securities Act, R.S.O. 1990, c.S.5, as amended.
National Policy Statement No. 41.
OSC Policy Statement No. 9.1.
R.S.O. 1990, CHAPTER B.16, AS AMENDED (the "OBCA")
IN THE MATTER OF
TRITECH PRECISION INC. AND TRIMIN ENTERPRISES INC.
UPON the application of Tritech Precision Inc. ("Tritech") and Trimin EnterprisesInc. ("Trimin") to the Ontario Securities Commission (the "Commission") for an orderpursuant to subsection 190(6) of the OBCA to exempt Tritech and Trimin from therequirement of subsection 190(3) of the OBCA to send a management information circular(the "Circular") to shareholders of Tritech and Trimin, respectively, not less than 40 daysprior to the date of the special meetings of shareholders of Tritech and Trimin (the"Meetings") in respect of the going private transactions to be effected by means of a planof arrangement (the "Arrangement") as described below;
AND UPON reading the application and considering the recommendation of staffof the Commission;
AND UPON Tritech and Trimin having represented to the Commission as follows:
1. Tritech is a corporation governed by the OBCA. It is a reporting issuer in theprovince of Ontario and is not in default of any requirements of the Securities Act(Ontario) (the "Act").
2. The authorized capital of Tritech consists of an unlimited number of common shares(the "Tritech Shares") and an unlimited number of preference shares, issuable inseries, of which 8,443,440 Tritech Shares are issued and outstanding as at the datehereof. The Tritech Shares are listed and posted for trading on The Toronto StockExchange (the "TSE").
3. Trimin is a corporation governed by the Canada Business Corporations Act("CBCA"). It is a reporting issuer in the province of Ontario and is not in default ofany requirements of the Act.
4. The authorized capital of Trimin consists of an unlimited number of Class Acommon shares (the "Trimin Shares"), of which 17,255,900 Trimin Shares areissued and outstanding as at the date hereof. The Trimin Shares are listed andposted for trading on the TSE.
5. Trimin is a holding company having, as its sole asset, 3,845,682 (45.5%) TritechShares. As a result, a holder of Trimin Shares is an indirect holder of an interestin Tritech and the aggregate consideration offered for the Trimin Shares byCastings Acquisition Corp. ("Canco") pursuant to the Arrangement represents anamount equal to 45.5% of the total consideration to be offered in connection withthe Arrangement.
6. To the knowledge of Tritech, the only persons or entities who beneficially own,directly or indirectly, or exercise control or direction over, more than 10% of theissued and outstanding Tritech Shares are Trimin, Deans Knight CapitalManagement Ltd. ("Deans Knight") and Lincluden Management Limited("Lincluden") as to 3,845,682 (45.5%), 983,580 (11.6%) and 903,286 (10.7%)Tritech Shares, respectively.
7. To the knowledge of Trimin, the only persons or corporations who beneficially own,directly or indirectly, or exercise control or direction over, more than 10% of theissued and outstanding Trimin Shares are James Meekison, Lincluden and WilliamFerguson as to 5,967,963 (34.6%), 4,155,272 (24.1%) and 1,788,501 (10.4%)Trimin Shares, respectively.
8. Canco is a private corporation governed by the OBCA and was formed for thepurpose of acquiring all of the Tritech Shares and the Trimin Shares. Canco hasnot engaged in any activities to date other than those relating to its organizationand the entering into of the agreements relating to the Arrangement.
9. Canco is an affiliate company of The Carlyle Group. The Carlyle Group is a globalinvestment firm based in Washington, D.C., which originates, structures and actsas lead equity investor in management-led buyouts, strategic minority equityinvestments, equity private placements, consolidations and build-ups, and growthcapital financing. Formed in 1987, The Carlyle Group has invested more thanUS$3.3 billion of equity in 126 transactions, which have an aggregate acquisitionvalue of more than US$11.5 billion.
10. Neither Canco nor The Carlyle Group own any Tritech Shares or Trimin Shares asat the date hereof.
11. In December 1999, the board of directors of Tritech (the "Tritech Board") and theboard of directors of Trimin (the "Trimin Board") each formed special committeesof directors (collectively, the "Special Committees") to evaluate Canco's offer toacquire all of the Tritech Shares not held by Trimin for Cdn. $33.00 per share incash and all of the Trimin Shares for Cdn. $7.35 per share in cash and to report tothe Tritech Board and Trimin Board, respectively.
12. The Tritech Special Committee retained ING Barings LLC and Salomon SmithBarney to prepare an opinion concerning the fairness of the offer from a financialpoint of view.
13. On January 6, 2000, the Tritech Special Committee and the Tritech Boardconcluded that the Arrangement is fair from a financial point of view to and in thebest interests of Tritech and the holders of Tritech Shares, and the Trimin SpecialCommittee and the Trimin Board concluded that the Arrangement is fair from afinancial point of view to and in the best interests of Trimin and the holders of TriminShares. The Tritech Board and the Trimin Board unanimously recommended thattheir shareholders vote in favour of the Arrangement.
14. Following the meetings of the Special Committees, the Tritech Board and the TriminBoard, on January 6, 2000, Tritech, Trimin and Canco entered into (i) anarrangement agreement (the "Arrangement Agreement") whereby Canco agreed toacquire all of the Tritech Shares not held by Trimin and all of the Trimin Shares forthe offer prices set forth in paragraph 11 above, and (ii) a support agreement (the"Support Agreement") whereby Tritech and Trimin agreed to support theArrangement, Trimin agreed to vote all of the Tritech Shares held by Trimin infavour of the Arrangement and Tritech and Trimin agreed to pay a non-completionfee upon the termination of the Arrangement in certain circumstances.
15. Canco also entered into a lock-up agreement (the "Lock-up Agreement") datedJanuary 6, 2000 with James Meekison and William Ferguson (the "Principal TriminShareholders") whereby the Principal Trimin Shareholders agreed to vote all of theTrimin Shares held by them in favour of the Arrangement. The Principal TriminShareholders will receive, for each of their Trimin Shares, the same considerationthat is paid to all other holders of Trimin Shares for each such share.
16. The Arrangement was publicly announced by Tritech and Trimin in a joint newsrelease dated January 6, 2000 and issued on the same date.
17. Each of the Arrangement Agreement, Support Agreement and Lock-up Agreementmay be terminated upon the Tritech Board or the Trimin Board notifying Canco ofa superior take-over proposal and the payment of the applicable non-completion feeto Canco.
18. In connection with the Arrangement:
(i) Trimin will be continued as a company governed by the OBCA (the"Continuance");
(ii) Tritech and Trimin will have completed an internal corporate reorganizationof Tritech and Trimin and their respective subsidiaries, including withoutlimitation, the transfer by Tritech of assets used in its Norcast division to anewly-incorporated subsidiary;
(iii) holders of Tritech Shares and Trimin Shares who own or will own suchshares indirectly through a single-purpose OBCA holding company (a"Holdco") will be entitled to include such Holdco in the Arrangement andreceive consideration for the shares of such Holdco identical to that whichwould have been received by such Holdco if such Holdco were not soincluded; and
(iv) all outstanding options to purchase Tritech Shares that have not beenexercised will be cancelled and the holders thereof will be entitled to receivein respect of each Tritech Share subject to such options the differencebetween Cdn. $33.00 and the exercise price of the relevant option in cash.
19. Upon completion of the Arrangement, all of the Tritech Shares and Trimin Shareswill be owned by Canco. The Principal Trimin Shareholders will have no continuingownership of securities in Tritech, Trimin or Canco.
20. The Arrangement, the disclosure for purposes of the Circular and the processthrough which it is to be approved will comply with the applicable provisions of theOBCA (subject to the relief granted pursuant to this order), the CBCA, the Act andCommission Policy Statement No. 9.1 ("Policy 9.1") (subject to any relief grantedpursuant to an application by Tritech and Trimin) and will also comply with theapplicable provisions of National Policy Statement No. 41.
21. Subject to the terms of the interim order (the "Interim Order") of the Ontario SuperiorCourt of Justice to be obtained, the Arrangement must be approved by theaffirmative vote of at least two-thirds of the votes cast by each of the holders of theTritech Shares and Trimin Shares present in person at the Meetings and anyminority approval requirements of Policy 9.1 that Tritech and Trimin are nototherwise exempted therefrom.
22. Tritech and Trimin anticipate that the Interim Order for the Arrangement will providethat holders of Tritech Shares and Trimin Shares will have the right to dissent to theArrangement and the Circular will disclose full particulars of this right in accordancewith applicable law. The Circular will also disclose full particulars of the statutoryright of holders of Trimin Shares to dissent to the Continuance.
23. It is a term of the Arrangement Agreement that Tritech and Trimin accelerate thetiming of the Meetings so that the notice period required by subsection 190(3) of theOBCA is reduced from 40 days to 25 days. As well, it is the intention of Tritech andTrimin to send the Circular to holders of Tritech Shares and Trimin Shares less than40 days prior to the date of the Meetings.
AND UPON the Commission being of the opinion that to do so would not beprejudicial to the public interest;
IT IS ORDERED pursuant to subsection 190(6) of the OBCA that in connection withthe Arrangement, Tritech and Trimin are exempted from the requirement of subsection190(3) of the OBCA to send the Circular to the shareholders of Tritech and Trimin 40 daysin advance of the Meetings, provided that the Circular is sent to the holders of TritechShares and Trimin Shares not less than 25 days prior to the Meetings and provided thatTritech and Trimin otherwise comply with the requirements of National Policy StatementNo. 41.
January 18th, 2000.
"J. A. Geller" "R. Stephen Paddon"