Boyd Group Inc. - MRRS Decision
Headnote
Mutual Reliance Review System for ExemptiveRelief Applications - Tacking relief granted for the seasoningperiod and for the hold period of control persons after a planof arrangement. In determining the period of time a fund hasbeen a reporting issuer under sections 2.6 and 2.8 of MultilateralInstrument 45-102: Resale of Securities, the fund may includethe period of time the operating company was a reporting issuerprior to the arrangement. In determining the period of timecontrol persons have held units of the fund under section 2.8of MI 45-102, control persons may include the period of timethey held shares of the operating company prior to the arrangement.
Applicable National Instruments
Multilateral Instrument 45-102: Resale of Securities.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
BRITISH COLUMBIA, ALBERTA,SASKATCHEWAN AND ONTARIO
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
THE BOYD GROUP INC.
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker") in eachof British Columbia, Alberta, Saskatchewan and Ontario (the"Jurisdictions") has received an application fromThe Boyd Group Inc. ("Boyd") and Boyd Group IncomeFund (the "Fund") for a decision under the securitieslegislation of the Jurisdictions (the "Legislation")that the requirement under the Legislation to file and obtaina receipt for a preliminary prospectus and a prospectus (the"Prospectus Requirement") shall not apply to the firsttrade of certain securities of the Fund acquired by holdersthereof in connection with a plan of arrangement (the "Arrangement")under section 185 of The Corporations Act (Manitoba) (the "MCA")involving Boyd, the Fund, Boyd Fund Limited ("Fund Subco"),Boyd Group Holdings Inc. ("Amalco Holdco"), 4612094Manitoba Inc. ("Management Holdco") and the holdersof Boyd's securities ("Boyd Securityholders");
AND WHEREAS under the Mutual RelianceReview System for Exemptive Relief Applications (the "System")the Ontario Securities Commission (the "OSC") is theprincipal regulator for this application;
AND WHEREAS Boyd has represented to theDecision Makers that:
(a) Boyd is a corporation incorporated underthe laws of the Province of Manitoba, is a reporting issuer(or the equivalent thereof) in each of the Provinces of Manitobaand Ontario and, to the best of its knowledge, is not in defaultof any of the requirements of the MSA or the SecuritiesAct (Ontario).
(b) Boyd's authorized share capital consistsof an unlimited number of Class A Shares of Boyd ("BoydClass A Shares"), an unlimited number of Class B votingshares, an unlimited number of Class C non-voting redeemablepreferred shares, 100 Class D voting shares ("Boyd ClassD Shares") and an unlimited number of Class E votingcumulative redeemable convertible shares ("Boyd ClassE Shares"), of which 14,737,002 Boyd Class A Shares,100 Class D voting shares and 2,125,000 Boyd Class E Sharesare issued and outstanding as of January 16, 2003. The BoydClass A Shares, the Boyd Class D Shares and the Boyd ClassE Shares are sometimes collectively hereinafter referred toas the "Boyd Voting Shares".
(c) Boyd owns and operates, either directlyor through subsidiaries, automotive collision repair centresin Canada and the United States. The principal names underwhich Boyd carries on business in Canada are "Boyd Autobodyand Glass", "Boyd Autobody", "ImperialCollision" and "Service Collision Repair Centres".
(d) The Fund is an open-ended mutual fundtrust governed by the laws of the Province of Manitoba createdpursuant to a declaration of trust. The Fund was establishedfor the purposes, among other things, of investing in securitiesof Fund Subco and Amalco (New Boyd). The unitholders of theFund ("Unitholders") will be its sole beneficiaries.
(e) Following the Arrangement, the Fund willown all of the issued and outstanding Class I Shares of Amalco("Amalco Class I Shares") and all of the promissorynotes issued by Fund Subco ("Fund Subco Notes").Amalco Holdco will own all of the issued and outstanding ClassII Shares of Amalco ("Amalco Class II Shares").
(f) Amalco Holdco was incorporated under theMCA for purposes of participating in the Arrangement and willown, upon completion of the Arrangement, a minority economicinterest in Amalco (New Boyd) through its ownership of allof the Amalco Class II Shares. Amalco Holdco will, subjectto applicable legal and contractual requirements, distributeits income on a monthly basis to its shareholders by way ofa dividend on the Amalco Holdco Common Shares.
(g) Fund Subco is a wholly-owned subsidiaryof the Fund and was incorporated under the MCA for purposesof participating in the Arrangement, including creating andissuing the Common Shares of Fund Subco ("Fund SubcoCommon Shares") and the Fund Subco Notes required forimplementing the Arrangement. Pursuant to the Arrangement,Fund Subco will amalgamate with Boyd to form Amalco and continueunder the name "The Boyd Group Inc.".
(h) Management Holdco was incorporated bythe Management Group (as hereinafter defined) under the MCAfor purposes of participating in the Arrangement, includingholding a minority interest in the Class A Common Shares ofAmalco Holdco ("Amalco Holdco Class A Common Shares").
(i) The Arrangement will be carried out undersection 185 of the MCA. On December 17, 2002, Boyd obtained,under section 185 of the MCA, an interim order (the "InterimOrder") from the Manitoba Court of Queen's Bench (the"Court") which order specifies, among other things,certain procedures and requirements to be followed in connectionwith the calling and holding of a special meeting of holders(collectively, "Shareholders") of Boyd Class A Shares,Class D Shares of Boyd, Boyd Class E Shares, options ("Options")to acquire Boyd Class A Shares and debentures ("Debentures")convertible into Boyd Class A Shares, to consider the Arrangement(the "Meeting") and the completion of the Arrangement.
(j) Boyd caused the Circular to be mailedto the Shareholders holding shares through intermediarieson or about December 24, 2002 and filed the Circular on SEDARon or about that same date. Boyd caused the Circular to bemailed to the balance of Shareholders on December 31, 2002.
(k) The Circular contains prospectus-leveldisclosure of the business and affairs of Boyd, the Fund,Fund Subco, Amalco Holdco and Management Holdco and a detaileddescription of the Arrangement. The Circular also containscertain historical financial statements of Boyd as well aspro forma financial information in respect of the Fund.
(l) The Interim Order requires, among otherthings, approval by the Shareholders of the Arrangement atthe Meeting to be held on January 24, 2003.
(m) Pursuant to the Arrangement, on the effectivedate of the Arrangement (the "Effective Date"),each of the following events shall occur and shall be deemedto occur in the following sequence without further act orformality:
(i) the note indenture (the "Note Indenture")pursuant to which Fund Subco is authorized to issue theFund Subco Notes shall be completed to provide for an interestrate under the Note Indenture and the Fund Subco Notes whichis the same as the interest rate disclosed for the NoteIndenture and the Fund Subco Note by the IPO Prospectus;
(ii) the Boyd Class A Shares will be consolidatedin accordance with Articles of Amendment of Boyd;
(iii) those persons who, after December17, 2002 and prior to the Effective Date, have convertedDebentures, will be issued the number of Boyd Class A Sharesto which they are respectively entitled as a result of suchconversion;
(iv) those persons who, after December 17,2002 and on or before the last Business Day prior to theEffective Date, have exercised Options by notice and paymentof the Option price, will be issued the number of Boyd ClassA Shares to which they are entitled as a result of the exerciseof such Options;
(v) the Class D Shares of Boyd shall becancelled and the Boyd Class E Shares shall be convertedinto Boyd Class A Shares;
(vi) Terry Smith, Brock Bulbuck, Coast toCoast Collision Centres Inc., Farelane Properties Ltd.,Coast to Coast Franchise Services Inc. and 2630206 ManitobaInc. (collectively, the "Management Group") willexchange 15% of the Boyd Class A Shares held by them inthe aggregate for Fund Subco Notes in the principal amountdetermined by multiplying the price (the "IPO Price")at which units of the Fund ("Units") are offeredunder the initial public offering of the Units (the "IPO")by the number of Boyd Class A Shares for which the FundSubco Notes are exchanged;
(vii) the members of the Management Groupwill exchange their remaining Boyd Class A Shares (otherthan the part to be exchanged by Brock Bulbuck under paragraph(m) below) for common shares of Management Holdco ("ManagementHoldco Common Shares") on a one for one basis;
(viii) each of the holders of Options ("Optionholders")who is issued Boyd Class A Shares upon the exercise of theirOptions, other than Terry Smith and Brock Bulbuck, shallexchange such Boyd Class A Shares for Fund Subco Notes inthe principal amount determined for each of them respectivelyby multiplying the IPO Price by the number of Boyd ClassShares for which the Fund Subco Notes are exchanged;
(ix) all of the holders of Boyd Class AShares on the Effective Date who did not dissent to theArrangement, other than the Management Group (collectively,the "Boyd Public Class A Shareholders") shallexchange a certain percentage (as determined by the applicationof formulae set out in the plan of arrangement) of his,her or its Boyd Class A Shares for Fund Subco Notes in aprincipal amount determined for each of them respectivelyby multiplying the IPO Price by the number of Boyd ClassA Shares exchanged for the Fund Subco Notes;
(x) Management Holdco shall exchange allof its Boyd Class A Shares and each of the Boyd Public ClassA Shareholders shall exchange his, her or its remainingBoyd Class A Shares for Amalco Holdco Class A Common Shares,on a one for one basis;
(xi) Pursuant to the Exchange Agreement,Management Holdco and Boyd Public Class A Shareholders,as holders of Amalco Holdco Class A Common Shares, shallhave the right, subject to certain conditions, to retractsuch shares and receive Units in exchange therefor;
(xii) each member of the Management Groupand each of the Boyd Public Class A Shareholders shall exchangethe Fund Subco Note to which he, she or it is entitled hereunderfor that number of Units determined respectively by dividingthe principal amount of the Fund Subco Note by the IPO Price;
(xiii) Bulbuck shall exchange part of hisBoyd Class A Shares for Amalco Holdco Class A Common Shareson a one for one basis;
(xiv) the Units shall be retractable atthe request of the Unitholders, for retractions having acash value in excess of $25,000 in a calendar month, inexchange for Fund Subco Notes, Amalco Class I Shares and/orAmalco Holdco Class B Common Shares distributed by the Fundin accordance with the terms and conditions of the TrustDeclaration;
(xv) the stated capital of the Boyd ClassA Shares shall be reduced to $1,000,000;
(xvi) Boyd and Fund Subco shall amalgamateto form Amalco (the "Amalgamation");
(xvii) as part of the Amalgamation, allshares in the capital of Boyd and Fund Subco shall be cancelledand Amalco shall issue:
A. to the Fund, that number of AmalcoClass I Shares equal to the sum of the number of FundSubco Common Shares held by the Fund and the number ofBoyd Class A Shares held by Fund Subco, immediately priorto the Amalgamation; and
B. to Amalco Holdco, that number of AmalcoClass II Shares equal to the number of Boyd Class A Sharesheld by Amalco Holdco immediately prior to the Amalgamation;
(xviii) each outstanding and unexercisedOption shall be cancelled;
(xix) the trust indentures under which Debentureshave been issued shall be amended by making the Fund a partythereto and changing certain of the provisions thereof toprovide the holders of Debentures issued thereunder theright to exchange such Debentures for Units.
(n) All voting shares of Boyd and Optionsheld by persons who validly exercise the rights of dissentprovided to them under the Interim Order ("DissentingShareholders") shall, if the Dissenting Shareholder isultimately entitled to be paid the fair value therefor, bedeemed to be transferred to the Company on the Effective Datein exchange for such fair value.
(o) Upon completion of the Arrangement, theFund will be the holder of all of the Fund Subco Notes andall of the Amalco Class I Shares, Amalco Holdco will be theholder of all of the Amalco Class II Shares and the Boyd PublicClass A Shareholders and Management Holdco will hold Unitsand Amalco Holdco Class A Common Shares.
AND WHEREAS under the System, this MRRSDecision Document evidences the decision of each Decision Maker(collectively, the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Maker with the jurisdiction to make theDecision has been met;
THE DECISION of the Decision Makers underthe Legislation is that the Prospectus Requirement shall notapply to the first trade of Units acquired in connection withthe Arrangement provided that either: (i) the conditions insubsections (3) or (4) of section 2.6 of Multilateral Instrument45-102 Resale of Securities ("MI 45-102"); or (ii)the conditions in subsections (2) or (3) of section 2.8 of MI45-102, as applicable, are satisfied, except that:
(a) for the purposes of determining theperiod of time that the Fund has been a reporting issuerunder sections 2.6 and 2.8 of MI 45-102, the period of timethat Boyd was a reporting issuer in at least one of thejurisdictions listed in Appendix B of MI 45-102 immediatelybefore the Arrangement may be included; and
(b) for the purposes of determining theperiod of time that a Unitholder has held Units under section2.8 of MI 45-102, the period of time that a Unitholder heldBoyd Class A Shares, Boyd Class E Shares, Options or Debenturesimmediately before the Arrangement may be included.
February 27, 2003.
"Robert W. Korthals" "DerekBrown"