Brooks Automation (Canada) Inc. - MRRS Decision
Headnote
Mutual Reliance Review System for Exemptive Relief Applications -- Issuer has only one security holder -- Issuer deemed to cease to be a reporting issuer under applicable securities laws -- Application submitted to Commission because of default for failure to file certain documents.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 83.
June 28, 2005
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ALBERTA, SASKATCHEWAN,
ONTARIO, QUÉBEC, NEW BRUNSWICK, NOVA SCOTIA
AND NEWFOUNDLAND AND LABRADOR
(the Jurisdictions)
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM FOR
EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
BROOKS AUTOMATION (CANADA), INC. (the Filer)
MRRS DECISION DOCUMENT
Background
The local securities regulatory authority or regulator (the Decision Maker) in each of the Jurisdictions has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) that the Filer be deemed to have ceased to be a reporting issuer or the equivalent thereof under the Legislation (the Requested Relief).
Under the Mutual Reliance Review System for Exemptive Relief Applications:
(a) the Ontario Securities Commission is the principal regulator for this application; and
(b) this MRRS decision document evidences the decision of each Decision Maker.
Interpretation
Defined terms contained in National Instrument 14-101 -- Definitions have the same meaning in this decision unless they are defined in this decision.
Representations
This decision is based on the following facts represented by the Filer:
1. The Filer is a corporation existing under the provisions of the Canada Business Corporations Act.
2. The registered office of the Filer is in the Province of Ontario.
3. In March of 1999, the Filer and PRI Automation, Inc. (PRI), a Commonwealth of Massachusetts corporation, combined their businesses pursuant to a plan of arrangement (the PRI Arrangement) under the Canada Business Corporations Act. Under the PRI Arrangement, the Filer created a new class of exchangeable shares (the Exchangeable Shares), which were issued to existing holders of the common shares of the Filer, in exchange for such common shares. After such exchange, the common shares of the Filer were cancelled.
4. Each Exchangeable Share was exchangeable by the holder into one common share of PRI, subject to certain call rights held by 1325949 Ontario Inc. (Subco), a wholly-owned subsidiary of PRI.
5. In connection with the PRI Arrangement, the Filer applied for, and on February 1, 1999 was granted, exemptive relief (the 1999 Order) from, among other things, certain continuous disclosure and insider reporting requirements from the securities regulatory authorities in each of the Provinces of Canada. Relief was granted primarily on the grounds that
(a) such disclosure would not be meaningful to holders of Exchangeable Shares, as their true economic interest lay in PRI, and not the Filer, and
(b) following the completion of the PRI Arrangement, Canadian shareholders represented less than 10% of all holdings of PRI common stock (assuming, for this purpose, the exchange of all Exchangeable Shares).
6. On March 11, 1999, the Filer changed its name to "PRI Automation (Canada), Inc."
7. On May 14, 2002, pursuant to an amended and restated agreement and plan of merger among Brooks Automation, Inc. (Brooks), a Delaware corporation, PRI and a wholly-owned subsidiary of Brooks dated December 18, 2001, PRI merged with and into Brooks (the Brooks Merger).
8. As a result of the Brooks Merger, each Exchangeable Share became exchangeable by the holder into 0.52 Brooks common shares, subject to certain call rights held by Subco.
9. On July 17, 2003, the Filer changed its name to "Brooks Automation (Canada), Inc."
10. The Exchangeable Share provisions allow the board of directors of the Filer to automatically redeem the remaining outstanding Exchangeable Shares when a certain de minimus number of Exchangeable Shares are held by the public. The board of directors of the Filer fixed July 23, 2004 as the automatic redemption date. Subco exercised its redemption call right to purchase on July 23, 2004 all of the outstanding Exchangeable Shares (other than those held by affiliates of Brooks).
11. On July 23, 2004, the purchase by Subco of all of the Exchangeable Shares (other than those held by affiliates of Brooks) was completed, and on the same date, the Exchangeable Shares were delisted from the Toronto Stock Exchange.
12. As of the date of this decision, all of the outstanding securities of the Filer, including debt securities, which are beneficially owned, directly or indirectly, are held by a sole security holder, Subco, a company wholly owned by Brooks.
13. The Filer is a reporting issuer in each of the Jurisdictions.
14. The Filer has not been in full compliance with the 1999 Order. The Filer has brought its SEDAR filings up to date, with the exception of certain confirmations of mailings in Québec. These historical deficiencies cannot be remedied as the Filer cannot identify with certainty any non-compliance that may have occurred prior to the acquisition of PRI Automation, Inc. by Brooks. The Filer has rectified all non-compliance that it is aware of and which is reasonably capable of rectification.
15. The Filer has filed a notice under BC Instrument 11-502 to voluntarily surrender its reporting issuer status in British Columbia. Non-reporting status was effective in British Columbia on May 31, 2005.
16. No securities of the Filer are listed or posted for trading on any stock exchange.
17. The Filer has no current intention to distribute any securities to the public.
18. No debt or equity securities of, or guaranteed by, the Filer are currently held by the public.
Decision
Each of the Decision Makers is satisfied that the test contained in the Legislation that provides the Decision Maker with the jurisdiction to make the decision has been met.
The decision of the Decision Makers under the Legislation is that the Requested Relief is granted.
"Carol S. Perry"
"Susan Wolburgh Jenah"