National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions - Relief granted from the dealer registration requirement, subject to certain conditions, in respect of the first trade by Canadian plan participants of shares issued pursuant to certain security based compensation plans - trades must be made to a person or company located outside of Canada, executed on an exchange or market located outside of Canada, and cleared and settled through a non-Canadian clearing agency.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c.S.5, as am., s. 25.
February 23, 2010
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
QUÉBEC AND ONTARIO
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
MOLSON COORS BREWING COMPANY
The securities regulatory authority or regulator in each of the Jurisdictions (Decision Maker) has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) that the dealer registration requirement does not apply to the first trade of the Plan Shares issued pursuant to a Plan, or upon the exercise, exchange, conversion or redemption of an Award pursuant to a Plan (the First Trade Registration Relief).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
(a) the Autorité des marchés financiers, Québec is the principal regulator for this application,
(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, Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland and Labrador, Yukon Territory, Northwest Territories and Nunavut Territory, 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 National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
"1934 Act" means the United States Securities Exchange Act of 1934, as amended;
"Agent" means Merrill Lynch, Pierce, Fenner & Smith Incorporated and its Affiliates, or the successor at law of any of the foregoing, that act as administrator for the Plans;
"Affiliates" has the meaning ascribed thereto under the Securities Act (Québec), as amended;
"Awards" means awards of options, stock appreciation rights, restricted stock, restricted stock units, performance share awards, performance unit awards and other stock-based awards and cash-based awards;
"Canadian Plan Participants" means Participants that are current or former employees, executive officers, directors and consultants of Molson Coors or related entities of Molson Coors and their permitted assigns who are resident in Canada;
"Class A Common Stock" means shares of Class A Common Stock, U.S.$0.01 par value, of Molson Coors;
"Class B Common Stock" means shares of Class B Common Stock, U.S.$0.01 par value, of Molson Coors;
"Class A Exchangeable Shares" means the Class A exchangeable shares of Molson Coors Canada;
"Class B Exchangeable Shares" means the Class B exchangeable shares of Molson Coors Canada;
"Combination" means the combination of Coors and Molson effective on the Effective Date pursuant to a plan of arrangement under the Canada Business Corporations Act;
"Coors Plan" means the Adolph Coors 1990 Equity Incentive Plan;
"Coors" means Adolph Coors Company;
"Effective Date" means February 9, 2005;
"Molson" means Molson Inc.;
"Molson Coors" means Molson Coors Brewing Company, the company resulting from the combination of Molson, Coors, among others, pursuant to the Combination;
"Molson Coors Canada" means Molson Coors Canada Inc., an indirect, wholly-owned subsidiary of Molson Coors;
"Molson Plan" means the Molson Inc. 1988 Canadian Stock Option Plan;
"Participants" means eligible participants for the receipt of Awards pursuant to the Plans;
"Plans" means the Molson Coors Brewing Company Incentive Compensation Plan, the Molson Coors Brewing Company Directors Stock Plan, the Molson Plan, the Coors Plan, each as amended from time to time, and such other plans or programs for the issuance, grant or acquisition of securities of Molson Coors that may be established or maintained by Molson Coors from time to time;
"Plan Shares" means shares of Class B Common Stock;
"Preferred Stock" means 25,000,000 shares of preferred stock, U.S. $0.01 par value, of Molson Coors;
"NYSE" means the New York Stock Exchange;
"Reporting Jurisdictions" means British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, New Brunswick, Nova Scotia and Newfoundland & Labrador;
"Special Class A Voting Stock" means shares of Special Class A Voting Stock of Molson Coors;
"Special Class B Voting Stock" means shares of Special Class B Voting Stock of Molson Coors; and
"TSX" means the Toronto Stock Exchange.
This decision is based on the following facts represented by the Filer:
1. Molson Coors is a corporation incorporated under the laws of the State of Delaware. Molson Coors is the combined entity resulting from the Combination of Molson and Coors, among others, made effective on the Effective Date. On the Effective Date, among other things, Coors changed its name to Molson Coors Brewing Company. The stockholders of Coors retained their shares, which remained outstanding as shares of Molson Coors. All of Molson's shares (other than shares of dissenting shareholders) were exchanged, through a series of exchanges, for shares of Molson Coors common stock and/or exchangeable shares of Molson Coors Canada. The exchangeable shares of Molson Coors Canada are a means for shareholders that held shares in Molson immediately prior to the Combination to defer tax in Canada and have substantially the same economic and voting rights as the holders of the respective classes of shares of common stock of Molson Coors.
2. Molson Coors maintains dual head offices at 1225 17th Street, Suite 3200, Denver, Colorado, U.S.A. 80202 and 1555 Notre Dame Street East, Montréal, Québec, Canada, H2L 2R5. Molson Coors' operations and employees are primarily located in the United States, United Kingdom and Canada.
3. Molson Coors is a reporting company with the Securities and Exchange Commission and is a "large accelerated filer" as defined in Rule 12b-2 of the 1934 Act.
4. Molson Coors is a reporting issuer or equivalent in the Reporting Jurisdictions under the applicable Legislation.
5. Molson Coors is not in default of any securities law requirement of the Reporting Jurisdictions.
6. The authorized capital of Molson Coors consists of 500,000,000 voting shares of Class A Common Stock, 1 voting share of Special Class A Common Stock, 500,000,000 non-voting shares of Class B Common Stock, 1 non-voting share of special Class B Common Stock and 25,000,000 shares of Preferred Stock.
7. As of December 31, 2009, there were 2,594,664 shares of Class A Common Stock, 1 share of Special Class A Common Stock, 159,456,659 shares of Class B Common Stock, 1 share of Special Class B Common Stock and nil shares of Preferred Stock issued and outstanding.
8. The shares of Class A Common Stock and Class B Common Stock are each listed for trading on the NYSE under the symbols "TAP.A" and "TAP", respectively.
9. The shares of Class A Common Stock and Class B Common Stock are not listed for trading on any stock exchange in Canada and Molson Coors has no intention at this time of listing such shares for trading on a stock exchange in Canada.
Molson Coors Canada
10. Molson Coors Canada is a corporation incorporated under the laws of Canada.
11. Molson Coors Canada is a reporting issuer or equivalent in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, New Brunswick and Newfoundland & Labrador under the applicable Legislation.
12. The authorized capital of Molson Coors Canada includes an unlimited number of Class A Exchangeable Shares and an unlimited number of Class B Exchangeable Shares.
13. As of December 26, 2009, there were 3,164,902 Class A Exchangeable Shares and 20,246,131 Class B Exchangeable Shares issued and outstanding.
14. The Class A Exchangeable Shares and Class B Exchangeable Shares of Molson Coors Canada are each listed for trading on the TSX under the symbols "TPX.A" and "TPX.B", respectively.
15. Pursuant the merger documents executed as part of the Combination, the Class A Exchangeable Shares and Class B Exchangeable Shares of Molson Coors Canada can be exchanged for shares of Class A Common Stock and Class B Common Stock of Molson Coors, respectively. The shares of Class A Common Stock and Class B Common Stock of Molson Coors cannot be exchanged for either Class A Exchangeable Shares or Class B Exchangeable Shares of Molson Coors Canada.
16. The Molson Plan and the Coors Plan are predecessor plans that predate the Combination and are each now maintained and administered by Molson Coors. Pursuant to the Combination, on the Effective Date, the outstanding stock options granted under the Molson Plan were exchanged for options to purchase shares of Class B Common Stock of Molson Coors and the outstanding options granted under the Coors Plan to purchase shares of Class B common stock of Coors remained outstanding as options to purchase shares of Class B Common Stock of Molson Coors.
17. As of January 18, 2010, there were 529,314 Plan Shares available for issuance pursuant to the grant of future Awards under the Plans. Each share that is subject to an Award counts as one share against the aggregate number. The compensation committee of Molson Coors administers the Plans. The board of directors of Molson Coors may amend the terms of each of the Plans at any time, including increasing the number of Plan Shares available for issuance, subject to the stockholder approval requirements of the NYSE and other rules and regulations applicable to Molson Coors. Awards granted under the Plans are generally non-transferable by the holder other than by will or under the laws of descent and distribution, or in certain other limited circumstances, and are generally exercisable only by the holder during his or her lifetime.
18. All Awards that are denominated in a currency under the Plans are denominated in U.S. dollars. Further, all Plan Shares issued pursuant to the Plans, or upon exercise, exchange, conversion or redemption of Awards issued pursuant to the Plans, are shares of Class B Common Stock of Molson Coors. The shares of Class B Common Stock are listed for trading on the NYSE and are not listed for trading on any stock exchange in Canada.
19. The Agent will, among other things, assist in the recordkeeping of the Plans, facilitate the issuance of Awards and the exercise, exchange, conversion or redemption of Awards and assist Participants with the sale of the Plan Shares.
20. As of January 18, 2010, there were 175 Canadian Plan Participants resident in the Jurisdictions representing approximately 31% of the total number of Participants. Molson Coors markets and sells its products in all of the Jurisdictions and, as a result, expects that, from time to time, it may have Canadian Plan Participants resident in any of the Jurisdictions.
21. The current number of Plan Shares issuable to Canadian Plan Participants pursuant to the Plans represents less than 1% of the (i) issued and outstanding shares of Class B Common Stock, and (ii) annual trading volume of shares of Class B Common Stock on the NYSE in 2009.
22. Participation in the Plans by Canadian Plan Participants is voluntary and Canadian Plan Participants will not be induced to purchase Plan Shares or receive any Awards by expectation of employment, appointment or engagement or continued employment, appointment or engagement with Molson Coors or a related entity.
23. The Agent will establish a brokerage account for each Participant who has been issued a Plan Share pursuant to the Plans, including Canadian Plan Participants. All Participants must meet and comply with the Agent's standard account opening and document requirements.
24. Canadian Plan Participants will receive the same disclosure documents with respect to the Plans and will be treated the same in all material respects as other Participants.
25. Canadian Plan Participants that are issued Plan Shares pursuant to the Plans will not be obligated to sell their Plan Shares through the Agent and are free to transfer Plan Shares to a brokerage account with another broker-dealer.
26. The Agent will be a broker-dealer registered under the 1934 Act. Each Canadian Plan Participant will receive an award agreement setting out the terms of the applicable Award. On an annual basis, each Canadian Plan Participant will receive a copy of Molson Coors's annual report which, discloses among other things, the results of its operations and financial condition for the previous year as well as risk factors for the markets in which Molson Coors operates.
27. The Plan Shares' connection to the Canadian capital markets is limited. The Plan Shares do not trade on any stock exchange in Canada and are not exchangeable for shares of Molson Coors Canada or for any security that trades on a stock exchange in Canada. The Plan Shares will be held in accounts outside of Canada that provide for the custody of assets by the Agent in the U.S. All trades of Plan Shares will be made by the Agent through the facilities of a stock exchange or marketplace located outside of Canada.
28. The Agent is unable to rely on the exemption from the dealer registration requirement in subsection 8.16(2) of National Instrument 31-103 -- Registration Requirements because (i) Molson Coors is a reporting issuer in certain Jurisdictions of Canada, and (ii) from time to time, as a result of the exchange of Class B Exchangeable Shares or otherwise, residents of Canada may directly or indirectly own more than 10 percent of the outstanding shares of Class B Common Stock and may represent more than 10 percent of the total number of owners directly or indirectly of shares of Class B Common Stock.
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 First Trade Registration Relief is granted, provided that the first trade in the Plan Shares issued pursuant to a Plan or pursuant to the exercise, conversion, exchange or redemption of an Award is deemed to be a distribution unless:
(i) the trade is to a person or company located outside of Canada, or (ii) the trade is executed on an exchange, or a market, located outside of Canada and is cleared and settled through a non-Canadian clearing agency, in accordance with all applicable rules and policies governing such activities;
(b) Canadian Plan Participants will be treated the same in all material respects as other Participants;
(c) the Agent is registered as a U.S. broker-dealer; and
(d) prior to opening a new brokerage account with the Agent, all Canadian Plan Participants will receive disclosure that includes:
(i) a statement that neither the Agent, nor any of its Affiliates involved in providing services to the Canadian Plan Participants, is registered under the Legislation as a dealer for the purposes of executing the first trade of Plan Shares on behalf of Canadian Plan Participants and any investor protections that might otherwise be available in the Jurisdictions to clients of a registered dealer under the Legislation, may not be available to Canadian Plan Participants in the Jurisdictions who purchase the Plan Shares and participate in the Plans; and
(ii) a statement that the Canadian Plan Participants may not have the same rights against the Agent or any of its Affiliates involved in providing services to the Canadian Plan Participants, because the Agent nor any of the Affiliates, is resident outside of Canada and all or substantially all of their assets are located outside of Canada.