Securities Law & Instruments

Headnote

 

Subsection 74(1) – Application for exemption from prospectus requirement in connection with first trade of shares of issuer through NYSE or to person or company outside of Canada – issuer not a reporting issuer in any jurisdiction in Canada – conditions of the exemption in section 2.14 of National Instrument 45-102 Resale of Securities not satisfied as indirect parent of issuer, holding majority of issuer's issued and outstanding shares, is a resident of Canada – relief restricted to securities acquired under private placement in Canada to be conducted concurrent with an initial public offering of the issuer in the United States – relief granted subject to conditions, including condition that, excluding shares held by the issuer's indirect parent, residents of Canada do not hold more than 10 percent of the issued and outstanding shares or represent more than 10 percent of the number of securityholders and condition that the first trade be made through an exchange or market outside of Canada or to a person or company outside of Canada.

 

Statutes Cited

 

Securities Act, R.S.O. 1990, c. S.5, as am., ss. 53, 74(1).

National Instrument 45-102 Resale of Securities, s. 2.14.

 

March 29, 2017

 

IN THE MATTER OF

THE SECURITIES LEGISLATION OF

ONTARIO

 

AND

 

IN THE MATTER OF

EXPO EVENT HOLDCO, INC.

(the “Applicant”)

 

DECISION

 

Background

 

The Ontario Securities Commission (the “Commission”) has received an application from the Applicant for an exemption under Section 74(1) of the Securities Act (Ontario) (the “Act”) from the prospectus requirement set forth in Section 53 of the Act in connection with the first trades of common shares of the Applicant (the “Resale Requirement”) to be sold to investors (the “Ontario Investors”) resident in the province of Ontario (the “Jurisdiction”).

 

Interpretation

 

Terms defined in the Act and in National Instrument 14-101 Definitions have the same meaning if used in this ruling, unless otherwise defined.

 

Representations

 

This ruling is based on the following facts represented by the Applicant:

 

1.             The Applicant was incorporated under the laws of the State of Delaware on April 26, 2013. The Applicant’s principal and executive offices are located at 31910 Del Obispo Street, Suite 200, San Juan Capistrano, California 92675.

 

2.             The Applicant’s only active wholly-owned subsidiary is Emerald Expositions, LLC (“Emerald Expositions”), an entity formed under the laws of the state of Delaware with its principal and executive offices located in San Juan Capistrano. Emerald Expositions is a leading operator of large business-to-business trade shows in the United States. In connection with the Offering (as defined below), the Applicant intends to change its name to Emerald Expositions Events, Inc.

 

3.             The Applicant is controlled by an affiliate of certain investment funds (the “Foreign Affiliates”) managed by an affiliate of Onex Partners Manager LP (“Onex LP”) and/or Onex Corporation (“Onex”). The Foreign Affiliates hold shares of common stock (the “Common Shares”) in the capital of the Applicant.

 

4.             The authorized capital of the Applicant currently consists of 700,000 Common Shares, of which 494,951 Common Shares are issued and outstanding. The Applicant’s issued and outstanding Common Shares are owned by the Foreign Affiliates, management and certain directors and consultants of the Applicant. Onex, indirectly through the Foreign Affiliates, controls 99% of the outstanding Common Shares.

 

5.             The Applicant is not a reporting issuer in any province or territory of Canada. The Applicant’s securities are not listed or posted for trading on any exchange or market in Canada or outside of Canada. The Applicant has no present intention of listing its Common Shares on any Canadian stock exchange or of becoming a reporting issuer under any Canadian securities legislation.

 

6.             Onex was incorporated under the Business Corporations Act (Ontario) on December 30, 1980. Onex’s registered and principal office is located on the 49th Floor, 161 Bay Street, P.O. Box 700, Toronto, Ontario, Canada M5J 2S1. As at the date hereof, Onex had a market capitalization in excess of Cdn.$10.2 billion. Onex LP is a limited partnership formed under the laws of the State of Delaware. The limited partner of Onex LP is OMI Management U.S. Limited Partnership, a limited partnership formed under the laws of the State of Nevada, and the general partner of Onex LP is Onex Partners Manager GP ULC, a Nova Scotia entity. OMI Management U.S. Limited Partnership and Onex Partners Manager GP ULC are affiliates of Onex.

 

7.             Onex is a reporting issuer or the equivalent under the securities legislation of each of the provinces and territories of Canada. The Applicant has been advised that, to the knowledge of Onex, Onex is not in default of any Canadian securities legislation.

 

8.             While the exact number of Common Shares to be distributed has not yet been determined, the Applicant proposes to conduct an offering of Common Shares (the “Offering”) consisting of a treasury offering of Common Shares by the Applicant and a secondary offering of Common Shares by the Foreign Affiliates. At the time of the Offering, it is expected that the authorized capital of the Applicant will be increased as a result of a stock split to be undertaken in connection with the Offering.

 

9.             The Offering is being marketed primarily in the United States. The Applicant intends to apply to list the Common Shares for trading on the New York Stock Exchange (the “NYSE”), under the symbol “EEX”.

 

10.          As part of the Offering, the Applicant and the Foreign Affiliates intend to offer Common Shares (the “Canadian Offering Shares”) to Ontario Investors in the Jurisdiction in reliance upon the accredited investor exemption from the prospectus and registration requirements found in Section 73.3 of the Act. It is anticipated that each Ontario Investor will also be a “permitted client” as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. The Applicant and the Foreign Affiliates also intend to offer Common Shares in other international jurisdictions.

 

11.          On the date that the Canadian Offering Shares are distributed to the Ontario Investors (the “Distribution Date”), after giving effect to the Offering, the Canadian Offering Shares will not constitute more than 10% of the Public Float (defined as the issued and outstanding Common Shares of the Applicant on the Distribution Date after giving effect to the Offering and deducting the Common Shares owned by the Foreign Affiliates).

 

12.          Following completion of the Offering, it is expected that approximately 70-75% of the Common Shares will continue to be held by the Foreign Affiliates, management, and certain directors and consultants of the Applicant. The exact ownership levels will depend upon the ultimate size of the Offering.

 

13.          The Foreign Affiliates will agree with the underwriters involved in the Offering not to transfer the Common Shares held by them following the Offering, for a period of 180 days, without their prior consent, subject to certain exceptions (the “Lock-Up”).

 

14.          In addition to the Lock-Up, the Common Shares held by the Foreign Affiliates will be subject to resale restrictions pursuant to the Securities Act of 1933 and other applicable U.S. securities laws and the rules and regulations of the NYSE. These restrictions will prevent the Foreign Affiliates, in certain circumstances, from disposing of their Common Shares to the public without the benefit of a registration statement or an exemption from the registration requirements under U.S. securities laws.

 

15.          Upon completion of the Offering, the Canadian Offering Shares will represent less than 10% of the issued and outstanding Common Shares. However, when aggregated with the Common Shares held by Onex, indirectly through the Foreign Affiliates, the total number of Common Shares held directly or indirectly by resident Canadians will exceed 10% of the issued and outstanding Common Shares.

 

16.          On the Distribution Date, after giving effect to the Offering, residents of Canada will not represent in number more than 10% of the total number of owners, directly or indirectly, of Common Shares of the Applicant.

 

17.          The Canadian Offering Shares will be distributed to Ontario Investors pursuant to the accredited investor exemption in Section 73.3 of the Act. In the absence of an order granting relief, the first trade in Canadian Offering Shares by any of the Ontario Investors will be deemed to be a distribution pursuant to National Instrument 45-102 Resale of Securities (“NI 45-102”).

 

18.          Subsection 2.14(1) of NI 45-102 provides an exemption from the prospectus requirement for the first trade in securities of a non-reporting issuer distributed under a prospectus exemption. Specifically, subsection 2.14(1) states that the prospectus requirement does not apply to the first trade of a security distributed under an exemption from the prospectus requirement if:

 

(a)           the issuer of the security:

 

(i)            was not a reporting issuer in any jurisdiction of Canada at the distribution date; or

 

(ii)           is not a reporting issuer in any jurisdiction of Canada at the date of the trade;

 

(b)           at the distribution date, after giving effect to the issue of the security and any other securities of the same class or series that were issued at the same time as or as part of the same distribution as the security, residents of Canada:

 

(i)            did not own directly or indirectly more than 10 percent of the outstanding securities of the class or series; and

 

(ii)           did not represent in number more than 10 percent of the total number of owners directly or indirectly of securities of the class or series; and

 

(c)           the trade is made:

 

(i)            through an exchange, or a market, outside of Canada; or

 

(ii)           to a person or company outside of Canada.

 

19.          The prospectus exemption in subsection 2.14(1) of NI 45-102 will not be available to Ontario Investors with respect to their first trade in the Canadian Offering Shares, because on the Distribution Date Onex, a resident of Canada, will indirectly through the Foreign Affiliates own more than 10% of the outstanding Common Shares, preventing the condition in subparagraph (1)(b)(i) from being satisfied. Other than the condition in subparagraph 2.14(1)(b)(i), the conditions of subsection 2.14(1) would be satisfied to allow the first trade of the Canadian Offering Shares by the Ontario Investors in compliance with the prospectus exemption.

 

20.          The Applicant’s Canadian shareholder base is de minimis when Onex's indirect ownership is excluded. Prior to the Offering, the Applicant can confirm that residents of Canada, other than Onex, did not own, directly or indirectly, any Common Shares.

 

21.          No market for the Common Shares exists in Canada and none is expected to develop as a result of or following the Offering. The Common Shares will be offered primarily outside of Canada with no more than 10% of the Public Float being held by the Ontario Investors immediately after giving effect to the Offering. The market for the Common Shares will be outside of Canada and primarily in the United States as a result of the NYSE listing. It is expected that any resale of Common Shares by the Ontario Investors will be effected through an exchange or market outside of Canada (including the facilities of the NYSE) or to a person or company outside of Canada.

 

22.          The Applicant, in addition to having a de minimis Canadian shareholder base when Onex's indirect ownership is excluded, has a de minimis connection to Canada. The Applicant: (i) does not have any Canadian operating subsidiaries; (ii) has no assets in Canada; and (iii) derives less than 2.5% of its revenue from Canadian customers. At the time of the Offering, it is expected that all of the officers and management of the Applicant will be located in San Juan Capistrano, California. Currently, only one Canadian resident serves as both an officer and director of the Applicant. The balance of the directors and officers are not Canadian residents.

 

23.          The Applicant will be subject to the reporting and disclosure obligations of the Securities Exchange Act of 1934 and the NYSE rules and regulations. Holders of Canadian Offering Shares will receive copies of all shareholder materials provided to all other holders of the Common Shares, in accordance with applicable law, and will also have general access to such materials on EDGAR.

 

24.          The draft initial registration statement submitted to the SEC provides legends for sales in additional international jurisdictions to persons similar to accredited investors, including investors in the European Economic Area, United Kingdom, Switzerland, Dubai, Hong Kong, Singapore, Japan, Australia and France. It is expected that investors in those jurisdictions will be permitted to resell their Common Shares on the NYSE.

 

Decision

 

The Commission is satisfied that the decision meets the test set out in Section 74(1) of the Act.

 

The ruling of the Commission under Section 74(1) of the Act is that the first trades of the Canadian Offering Shares are exempt from the Resale Requirement provided that:

 

(a)           on the Distribution Date, after giving effect to the Offering, the Canadian Offering Shares will not constitute more than 10% of the Public Float;

 

(b)           on the Distribution Date, after giving effect to the Offering, residents of Canada will not represent in number more than 10% of the total number of owners, directly or indirectly, of the Common Shares of the Applicant;

 

(c)           the Applicant:

 

(i)            is not a reporting issuer in any jurisdiction of Canada at the Distribution Date; or

 

(ii)           is not a reporting issuer in any jurisdiction of Canada at the date of such first trades; and

 

(d)           such first trades are executed through an exchange or a market outside of Canada or to a person or company outside of Canada.

 

                DATED at Toronto on this 29th day of March, 2017.

 

“Monica Kowal”

Vice-Chair

Ontario Securities Commission

“Grant Vingoe”

Vice-Chair

Ontario Securities Commission