December 20, 2016
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction)
AND
IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF ALIGNVEST ACQUISITION CORPORATION (the Filer)
DECISION
Background
The principal regulator in the Jurisdiction (the “Decision Maker”) has received an application from the Filer for a decision under the securities legislation of the Jurisdiction (the “Legislation”) that the requirements under:
(a) Section 12.2 of National Instrument 41-101 General Prospectus Requirements (“NI 41-101”), relating to the use of restricted security terms, and sections 1.13 and 10.6 of Form 41-101F1 Information Required in a Prospectus (“Form 41-101F1”) and sections 1.12 and 7.7 of Form 44-101F1 Short Form Prospectus (“Form 44-101F1”) relating to restricted security disclosure shall not apply to the Common Shares (as defined below) (the “Prospectus Disclosure Exemption”) in connection with: (i) a final non-offering prospectus (the “Non-Offering Prospectus”), and any amendments thereto, to be filed by the Filer in connection with the proposed Qualifying Transaction (as defined below); and (ii) prospectuses (“Other Prospectuses”) that may be filed by the Filer under NI 41-101 or National Instrument 44-101 Short Form Prospectus Distributions (“NI 44-101”), including a prospectus filed under National Instrument 44-102 Shelf Distributions;
(b) Part 10 of National Instrument 51-102 Continuous Disclosure Obligations (“NI 51-102”) relating to the use of restricted security terms and restricted security disclosure shall not apply to the Common Shares (the “CD Disclosure Exemption”) in connection with: (i) a management information circular (the “Circular”) that is being prepared in connection with an upcoming meeting of the Filer’s shareholders to consider a plan of arrangement involving the Filer and Trilogy International Partners LLC (“TIP LLC”) in connection with the proposed Qualifying Transaction; and (ii) continuous disclosure documents (“Other CD Documents”) that may be filed by the Filer under NI 51-102;
(c) Section 12.3 of NI 41-101 relating to prospectus filing eligibility for distributions of restricted securities shall not apply to distributions of Common Shares (the “Prospectus Eligibility Exemption”) in connection with Other Prospectuses;
(d) Part 2 of OSC Rule 56-501 Restricted Shares (“OSC Rule 56-501”) relating to the use of restricted share terms and restricted share disclosure shall not apply to the Common Shares (the “OSC Rule 56-501 Disclosure Exemption”) in connection with dealer and adviser documentation, rights offering circulars and offering memoranda (“OSC Rule 56-501 Documents”) of the Filer; and
(e) Part 3 of OSC Rule 56-501 relating to the withdrawal of prospectus exemptions for distributions of restricted shares shall not apply to the distribution of the Class B Shares (as defined below), the Common Shares and the Special Voting Share (as defined below) (the “OSC Rule 56-501 Withdrawal Exemption”) in connection with: (i) distributions of the Class B Shares, the Common Shares, and the Special Voting Share in connection with the proposed Qualifying Transaction; and (ii) stock distributions (as defined in OSC Rule 56-501) of the Filer.
The Prospectus Disclosure Exemption, the CD Disclosure Exemption, the Prospectus Eligibility Exemption, the OSC Rule 56-501 Disclosure Exemption and the OSC Rule 56-501 Withdrawal Exemption are collectively referred to as the “Exemption Sought”.
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(i) the Ontario Securities Commission is the principal regulator for this application; and
(ii) 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, Québec, Nova Scotia, New Brunswick, Newfoundland and Labrador, Prince Edward Island, the Yukon Territory, Nunavut and the Northwest Territories (the “Passport Jurisdictions”) (other than with respect to the OSC Rule 56-501 Disclosure Exemption and the OSC Rule 56-501 Withdrawal Exemption), which, pursuant to Section 8.2(2) of National Policy 11-202 Process for Prospectus Reviews in Multiple Jurisdictions (“NP 11-202”) and Section 5.2(6) of National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions (“NP 11-203”), also satisfies the notice requirement of Section 4.7(1)(c) of MI 11-102.
Interpretation
Terms defined in National Instrument 14-101 Definitions, MI 11-102, NP 11-202, NP 11-203, NI 41-101, NI 44-101, NI 51-102 and OSC Rule 56-501 have the same meaning if used in this decision, unless otherwise defined.
Representations
This decision is based on the following facts represented by the Filer:
The Filer is a corporation incorporated under the Business Corporations Act (Ontario).
The Filer is a reporting issuer in all of the provinces and territories of Canada and is not in default in any material respect under applicable securities legislation in such jurisdictions.
The Filer is a “special purpose acquisition corporation” or “SPAC” under Part X of the Toronto Stock Exchange Company Manual (“Part X”), as varied by exemptive relief, having completed its SPAC initial public offering (“IPO”) on June 24, 2015 pursuant to a final prospectus that was filed in each of the provinces and territories of Canada dated June 16, 2015.
The Filer’s authorized share capital currently consists of shares of two classes: Class A Restricted Voting Shares, issued to investors in the Filer’s initial public offering, and Class B Shares held by the Filer’s founding shareholders (some of which were also qualified under the IPO prospectus). In addition, the Filer issued share purchase warrants as part of the IPO, each such warrant being exercisable, beginning 30 days after completion of a “qualifying acquisition” by the Filer, to acquire one Class B Share at a price of Cdn. $11.50 per share.
The Class A Restricted Voting Shares and share purchase warrants of the Filer are listed on the TSX under the symbols “AQX.A” and “AQX.WT”, respectively. The Class B Shares of the Filer are not listed on the TSX or any other marketplace.
The Filer is pursuing a potential business combination transaction involving the direct or indirect acquisition by the Filer of all of the voting interests, and a significant economic equity interest, in TIP LLC (the “Qualifying Transaction”).
The Qualifying Transaction is intended to constitute the Filer’s “qualifying acquisition” under Part X.
TIP LLC is a limited liability company formed under Washington State law with its principal executive offices located in Bellevue, Washington, USA. TIP LLC provides wireless communication services through its two indirectly held operating subsidiaries (the “Subsidiaries”) located in New Zealand (the “New Zealand Subsidiary”) and Bolivia (the “Bolivia Subsidiary”), which Subsidiaries are both majority-owned by TIP LLC:
(a) TIP LLC owns a majority interest of approximately 63% in the New Zealand Subsidiary. The minority shareholders, Tesbrit B.V., Hautaki Limited, KMCH Holdings Limited and individuals who are current or former employees of the New Zealand Subsidiary (collectively, the “New Zealand Subsidiary Minority Shareholders”), hold the remaining 37% interest in the New Zealand Subsidiary. TIP LLC and the New Zealand Subsidiary Minority Shareholders are parties to a shareholders agreement dated November 22, 2012, pursuant to which TIP LLC enjoys certain rights of first refusal with respect to ownership interests in the New Zealand Subsidiary. It is currently uncertain whether the interests of some or all of the New Zealand Subsidiary Minority Shareholders will be exchanged for shares of the Filer pursuant to the Qualifying Transaction, or remain in place in their current form, or a mix of the two.
(b) TIP LLC also owns a majority interest of approximately 71.5% in the Bolivia Subsidiary. The minority shareholder, Cooperativa de Telecommunicaciones y Servicios de Cochabamba, Ltda. (“COMTECO”), which is a limited liability cooperative organized under the laws of the Republic of Bolivia, holds the remaining 28.5% interest in the Bolivia Subsidiary. TIP LLC (through a subsidiary) and COMTECO are parties to a shareholders agreement dated November 19, 2003, pursuant to which TIP LLC enjoys certain rights of first refusal with respect to ownership interests in the Bolivia Subsidiary. COMTECO is Bolivia’s third largest cooperative fixed line telephone company with approximately 105,456 installed lines. It provides fixed telephony to Cochabamba, Aiquile, Mizque and Totora, and other services including cable TV and internet access. A telephony cooperative in Bolivia is similar to a rural, provincial telecommunications supplier with the primary business of providing land lines to the commercial and residential users in that province. It is currently anticipated that COMTECO’s interests in the Bolivia Subsidiary will remain in place in their current form.
As part of its business plan, the Filer, through TIP LLC, intends to seek to acquire other international telecommunications businesses.
The Qualifying Transaction is proposed to be completed as a plan of arrangement pursuant to the provisions of section 182 of the Business Corporations Act (Ontario) on the terms set forth in a proposed plan of arrangement (the “Plan of Arrangement”) and proposed arrangement agreement (the “Arrangement Agreement”) (the “Arrangement”).
The Arrangement Agreement provides that TIP LLC will issue certain TIP LLC Class C Units to the holders of the currently outstanding equity of TIP LLC.
Following the completion of the Qualifying Transaction and in accordance with and as part of the Plan of Arrangement, the Filer proposes to: (i) amend its share capital to create and issue a special voting share in the capital of the Filer (the “Special Voting Share”) to a trustee who will hold such share on behalf of the TIP LLC Class C Unit holders for the purposes of enabling the TIP LLC Class C Unit holders to vote the same through a voting trust agreement, including in person or by proxy, as if they had redeemed their TIP LLC Class C Units in accordance with the terms thereof, and acquired Common Shares of the Filer and voted such shares as a holder thereof on any matter, question, proposal or proposition whatsoever that may properly come before the holders of the Common Shares of the Filer at any meeting of such holders or with respect to all written consents sought from such holders, all as described in the Plan of Arrangement and the TIP LLC Agreement, (ii) re-designate the Class B Shares of the Filer as common shares in the capital of the Filer (the “Common Shares”) and remove the Class A Restricted Voting Shares from the share capital of the Filer and (iii) continue as a British Columbia corporation (from Ontario) and add constrained share provisions to its articles to enable the Filer to enforce certain mandatory provisions of New Zealand law that prevent a person from acquiring more than 25% of the voting securities of the Filer, as the indirect controlling shareholder of the New Zealand Subsidiary, without prior regulatory approval from the New Zealand Overseas Investment Office (the “Foreign Ownership Restrictions”), which are broadly similar to restrictions applicable to telecommunications businesses in Canada, or similar restrictions that may apply in other countries in future. As well, the name of the Filer will be changed to “Trilogy International Partners Inc.”.
Under the Arrangement, non-redeemed Class A Restricted Voting Shares are converted into Class B Shares, which then become Common Shares of the Filer. Following completion of the Arrangement, the only issued and outstanding securities of the Filer will be the Common Shares and the Special Voting Share.
Each Common Share will entitle the holder to: (i) one vote at all meetings of shareholders of the Filer (except meetings at which only holders of a specified class of shares are entitled to vote), (ii) receive, subject to the rights of holders of another class of shares, any dividends declared by the Filer and (iii) receive, subject to the rights of the holders of another class of shares, the remaining property of the Filer on the liquidation, dissolution or winding up of the Filer, whether voluntary or involuntary.
Except as required by law or stock exchange rules or the charter of the Filer, the holder of the Special Voting Share shall be entitled to vote on all matters submitted to a meeting of, and attend all meetings of, the holders of Common Shares of the Filer, with both classes of shares voting together as if they were a single class. The Special Voting Share shall entitle the holder thereof, who is a trustee, to such number of votes as are equal to the number of Common Shares of the Filer for which the then outstanding Class C Units of TIP LLC would be redeemable as at the applicable record date. The trustee holding the Special Voting Share shall exercise the voting rights attached thereto in accordance with instructions received from registered Class C Unitholders of TIP LLC. To the extent that the holder of the Special Voting Share does not receive voting instructions from a holder of Class C Units of TIP LLC, votes shall not be cast in respect of such holder. The holder of the Special Voting Share is not entitled to any dividends.
At such time as there are no TIP LLC Class C Units outstanding, the Special Voting Share shall automatically be redeemed and cancelled for $1 to be paid to the trustee as the registered holder thereof.
The economic interests of the Class C Units in TIP LLC are designed to be pro rata to those of the Class B Units, which will be held entirely by the Filer and which will at closing (and at all times thereafter) be equal to the number of Common Shares of the Filer. In addition, each holder of Class C Units has its redemption rights, which give it the right to require TIP LLC to purchase each Class C unit it holds in consideration of the issuance to such holder of a single Common Share of the Filer or the payment to such holder of a cash amount equal to the value of a Common Share of the Filer. So long as any Class C Units are outstanding, the Filer will not pay a dividend on the Common Shares unless an equivalent (in the same or a different currency) distribution per Class C Unit is paid on the Class C Units, and vice versa. This will not prevent a dividend reinvestment plan whereby additional Class C Units and Common Shares of the Filer may be paid on the Class C Units and Common Shares of the Filer, respectively.
The interests in TIP LLC will be divided into and represented by an unlimited number of each of three classes of units (the “TIP LLC Units”) as follows: (i) interests of the Filer and the member of TIP LLC designated by the holders of the Class A Units as the managing member (the “Managing Member”), which will be represented by TIP LLC Class B Units and TIP LLC Class A Units, respectively; and (ii) interests of the other TIP LLC members (collectively, with the Filer and the Managing Member, the “TIP LLC Members”), which will be represented by TIP LLC Class C Units. The TIP LLC Class C Units will be subdivided into Class C-1 Units, Class C-2 Units, and Class C-3 Units. The number of TIP LLC Class A Units, which will have nominal economic rights, shall equal the amount necessary to ensure that the TIP LLC Class A Units and the TIP LLC Class B Units (as determined pursuant to the following sentence) represent, in the aggregate, more than seventy-five percent (75%) of the issued and outstanding TIP LLC units. The number of TIP LLC Class B Units shall equal the number of Common Shares of the Filer outstanding as of the consummation of the Arrangement and at all times thereafter. Except under limited circumstances, only TIP LLC Members holding TIP LLC Class A Units shall have any voting rights under the Fifth Amended and Restated Limited Liability Company Agreement of TIP LLC, dated as of December 30, 2010, as amended (the “TIP LLC Agreement”). Only TIP LLC Members holding TIP LLC Class B Units or TIP LLC Class C Units will have economic rights, including dividend/distribution and liquidation rights, under the TIP LLC Agreement, and they will be pro rata as noted above.
Under the proposed Foreign Ownership Restrictions, the Filer could refuse to issue Common Shares to persons or register or otherwise recognize the transfer of Common Shares if the Filer’s board of directors concludes that action would result in a contravention of any Foreign Ownership Restrictions. In addition, the Filer could remove voting rights attached to the Common Shares held by a contravening holder unless such holder remedies the breach of the Foreign Ownership Restrictions within a specified time (of not less than 30 days) after receiving notice thereof.
The Filer is seeking the Exemption Sought in respect of, among other things, references to the Common Shares of the Filer in the Filings.
Subsection 12.2 of NI 41-101 requires that an issuer must not refer to a security in a prospectus by a term or a defined term that includes the word “common” unless the security is an equity security to which are attached voting rights exercisable in all circumstances, irrespective of the number or percentage of securities owned, that are not less, per security, than the voting rights attached to any other outstanding security of the issuer. Subsection 12.1(c) of NI 41-101 provides that Part 12 of NI 41-101 does not apply to securities that are subject to a restriction, imposed by any law governing the issuer, on the level of ownership of the securities by a person, company or combination of persons or companies, but only to the extent of the restriction.
Subsection 12.3 of NI 41-101 requires that an issuer must not file a prospectus under which restricted securities, subject securities or securities that are, directly or indirectly, convertible into, or exercisable or exchangeable for, restricted securities or subject securities, are distributed unless: (a) the distribution has received prior majority approval of the securityholders of the issuer in accordance with applicable law, including approval on a class basis if required and excluding any votes attaching at the time to securities held, directly or indirectly, by affiliates of the issuer or control persons of the issuer, or (b) at the time of any restricted security reorganization related to the securities to be distributed (i) the restricted security reorganization received prior majority approval of the securityholders of the issuer in accordance with applicable law, including approval on a class basis if required and excluding any votes attaching at the time to securities held, directly or indirectly, by affiliates of the issuer or control persons of the issuer, (ii) the issuer was a reporting issuer in at least one jurisdiction, and (iii) no purposes or business reasons for the creation of restricted securities were disclosed that are inconsistent with the purpose of the distribution.
Pursuant to NI 51-102, a “restricted security” means an equity security of a reporting issuer if any of the following apply: (a) there is another class of securities of the reporting issuer that, to a reasonable person, appears to carry a greater number of votes per security relative to the equity security, (b) the conditions of the class of equity securities, the conditions attached to another class of securities of the reporting issuer, or the reporting issuer’s constating documents have provisions that nullify or, to a reasonable person appear to significantly restrict the voting rights of the equity securities or (c) the reporting issuer has issued another class of equity securities that, to a reasonable person, appears to entitle the owners of securities of that other class to participate in the earnings or assets of the reporting issuer to a greater extent, on a per security basis, than the owners of the first class of equity securities.
Pursuant to NI 51-102, a “restricted voting security” means a restricted security that carries a right to vote subject to a restriction on the number or percentage of securities that may be voted by one or more persons or companies, unless the restriction is: (a) permitted or prescribed by statute and (b) applicable only to persons or companies that are not citizens or residents of Canada or that are otherwise considered as a result of any law applicable to the reporting issuer to be non-Canadian. The Foreign Ownership Restrictions do not meet these exclusions, although they are analogous to them.
Subsection 10.1 of NI 51-102 requires a reporting issuer that has outstanding restricted securities, or securities that are directly or indirectly convertible into or exercisable or exchangeable for restricted securities or securities that will, when issued, result in an existing class of outstanding securities being considered restricted securities, to provide specific disclosure with respect to such securities in its information circular, a document required by NI 51-102 to be delivered upon request by a reporting issuer to any of its securityholders, an annual information form prepared by the reporting issuer as well as any other documents that it sends to its securityholders. Subsection 10.3(b) of NI 51-102 provides that subsection 10.1 of NI 51-102 does not apply to securities that are subject to a restriction, imposed by any law governing the reporting issuer, on the level of ownership of the securities by any person, company or combination of persons or companies, but only to the extent of the restriction.
Subsection 2.2 of OSC Rule 56-501 requires dealer and adviser documentation to include the appropriate restricted share term if restricted shares and the appropriate restricted share term or a code reference to restricted shares or the appropriate restricted share term are included in a trading record published by the Toronto Stock Exchange or other exchange listed in OSC Rule 56-501 or a trade reporting and quotation system operated by The Canadian Dealing Network Inc. Subsection 1.2(1)(c) of OSC Rule 56-501 provides that OSC Rule 56-501 does not apply to shares that are subject to a restriction, imposed by any law governing the issuer, on the level of ownership of the shares by a person, company or combination of persons or companies, but only to the extent of the restriction.
Subsection 2.3 of OSC Rule 56-501 requires that a rights offering circular or offering memorandum for a stock distribution prepared for a reporting issuer comply with certain requirements including, among others, the restricted shares may not be referred to by a term or a defined term that includes “common”, “preference” or “preferred” and that such shares shall be referred to using a term or a defined term that includes the appropriate restricted share term.
Subsection 3.2 of OSC Rule 56-501 provides that the prospectus exemptions under Ontario securities law are not available for a stock distribution of securities of a reporting issuer or an issuer if the issuer will become a reporting issuer as a result of the stock distribution unless either the stock distribution received minority approval of shareholders or all the conditions set out in subsection 3.2(2) are satisfied and the information circular relating to the shareholders’ meeting held to obtain such minority approval for the stock distribution included prescribed disclosure. Pursuant to subsection 4.2 of OSC Rule 56-501, the Director may determine that the Filer is exempt from Parts 2 and 3 of OSC Rule 56-501.
As the Special Voting Share will entitle the holder thereof to that number of votes equal to the number of outstanding TIP LLC Class C Units, it will technically represent a class of securities to which multiple votes is attached. The multiple votes attaching to the Special Voting Share would, absent the Exemption Sought, have the following consequences in respect of the technical status of the Common Shares: (i) pursuant to Subsection 12.2(1) of NI 41-101, the Filer would be unable to use the word “common” to refer to the Common Shares in a prospectus because the Special Voting Share would represent a security to which are attached voting rights exercisable in all circumstances, irrespective of the number or percentage of securities owned, that are more, per security, than the voting rights attached to the Common Shares, (ii) the Common Shares could be considered “restricted securities” pursuant to para. (a) of the definition of the term in NI 51-102 and the Filer would be required to provide the specific disclosure required by NI 51-102 in respect of the Common Shares because the Special Voting Share would represent another class of securities of the Filer that, to a reasonable person, appears to carry a greater number of votes per security relative to the Common Shares, and (iii) the Common Shares would be considered “restricted shares” pursuant to OSC Rule 56-501 and the Filer would be subject to the dealer and advisor documentary disclosure obligations and distribution restrictions of OSC Rule 56-501 because the Special Voting Share would represent a security to which is attached voting rights exercisable in all circumstances, irrespective of the number of percentage of shares owned, that are more, on a per share basis, than the voting rights attaching to the Common Shares of the Filer.
Following completion of the Arrangement, the Common Shares would be “restricted securities” as defined in NI 41-101, NI 51-102 and OSC Rule 56-501 solely as a result of the Special Voting Share and, if applicable, the Foreign Ownership Restrictions.
The Filer will make an application to the TSX for a decision that the Common Shares are exempt from Section 624 – Restricted Securities of the TSX Company Manual and confirmation that it may refer to its Common Shares as common shares (the “TSX Relief”).
Decision
The Decision Maker 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 Maker under the Legislation is that the Exemption Sought is granted provided that:
(a) in connection with the Prospectus Disclosure Exemption as it applies to the Non-Offering Prospectus, the Non-Offering Prospectus includes disclosure consistent with representations 12-19, above;
(b) in connection with the CD Disclosure Exemption as it applies to the Circular, the Circular includes disclosure consistent with representations 12-19, above;
(c) in connection with the Prospectus Disclosure Exemption and the Prospectus Eligibility Exemption as they apply to the Other Prospectuses, at the time the Filer relies on the Exemption Sought:
(i) the Arrangement has been completed;
(ii) representations 12-19, above, continue to apply;
(iii) the Filer has no restricted securities (as defined in section 1.1 of NI 41-101) issued and outstanding other than the Common Shares; and
(iv) the TSX has granted the TSX Relief;
(d) in connection with the CD Disclosure Exemption as it applies to the Other CD Documents, at the time the Filer relies on the Exemption Sought:
(i) the Arrangement has been completed;
(ii) representations 12-19, above, continue to apply;
(iii) the Filer has no restricted securities (as defined in subsection 1.1(1) of NI 51-102) issued and outstanding other than the Common Shares; and
(iv) the TSX has granted the TSX Relief;
(e) in connection with the OSC Rule 56-501 Disclosure Exemption as it applies to the OSC Rule 56-501 Documents, at the time the Filer relies on the Exemption Sought:
(i) the Arrangement has been completed;
(ii) representations 12-19, above, continue to apply;
(iii) the Filer has no restricted shares (as defined in section 1.1 of OSC Rule 56-501) issued and outstanding other than the Common Shares; and
(iv) the TSX has granted the TSX Relief; and
(f) in connection with the OSC Rule 56-501 Withdrawal Exemption, at the time the Filer relies on the Exemption Sought:
(i) the Arrangement has been completed;
(ii) representations 12-19, above, continue to apply;
(iii) the Filer has no restricted shares (as defined in section 1.1 of OSC Rule 56-501) issued and outstanding other than the Common Shares; and
(iv) the TSX has granted the TSX Relief.
“Michael Balter”
________________________ Michael Balter
Manager, Corporate Finance
Ontario Securities Commission