Green Bay Packers, Inc. (Re), 2021 CanLII 119199

Ontario Commission des 22^nd^ Floor 22e étage

Securities valeurs mobilières 20 Queen Street West 20, rue Queen ouest

Commission de l’Ontario Toronto ON M5H 3S8 Toronto ON M5H 3S8

November 18 , 2021

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

Green Bay Packers, Inc.

(the Filer)

DECISION

Background

The local securities regulatory authority or regulator in each of the Jurisdictions has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) for an exemption from the prospectus requirement in respect of the distribution of common stock (Offered Shares) of the Filer to be offered (Offering) in each of the Jurisdictions (defined below) (the Requested Relief).

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):

(a) the Ontario Securities Commission is the principal regulator for this application,

(b) the Filer has provided notice that subsection 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, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon, Northwest Territories and Nunavut (collectively, together with Ontario, the Jurisdictions).

Interpretation

Terms defined in MI 11-102 and National Instrument 14-101 Definitions have the same meanings if used in this decision unless otherwise defined.

Representations

This decision is based on the following facts represented by the Filer:

1. The Filer is a corporation organized as a Wisconsin non-profit stock corporation established under the Wisconsin Business Corporation Law on January 26, 1935.

2. The Filer is not, and does not intend to become, a reporting issuer under the securities legislation of any Jurisdiction. The Filer is not, and does not intend to become, a reporting company under the United States federal Securities Exchange Act of 1934. The shares of common stock of the Filer are not listed or traded on any stock exchange or over-the-counter-market in Canada, the United States or elsewhere.

3. The Filer is not in default of securities legislation in any Jurisdiction.

4. The Filer’s restated articles of incorporation as currently in effect (the Articles) provide that the Filer shall be non-profit sharing and its purpose shall be exclusively for charitable purposes. The Articles also state that its profit shall be donated to the Green Bay Packers Foundation (the Foundation) but that the Filer can make contributions to any local charitable institutions.

5. Despite its non-profit status, the Filer is not a charitable organization under Section 501(c)(3) of the United States federal Internal Revenue Code of 1986, as amended (the Code). The Foundation is a private foundation and a charitable organization under Section 501(c)(3) of the Code and was formed in 1987 to manage the Filer’s contributions to charity. The Filer is an exempt organization for purposes of Wisconsin income tax.

6. In the event of dissolution of the Filer, the Articles provide that the undivided profits and assets of the Filer shall go to the Foundation for distribution to community programs, charitable causes, and such other similar causes the Foundation deems appropriate.

7. The Filer is subsisting under the Articles as a community project intended to promote community welfare and its purposes shall be exclusively charitable. Incidental to its purposes, the Filer shall have the right to conduct athletic contests, operate a football team, or such other similar projects for the purpose of carrying out its charitable purposes, which purposes shall be carried on within the State of Wisconsin, and especially within the County of Brown, Wisconsin.

8. At the time of its incorporation, the Filer operated a National Football League franchise, the Green Bay Packers, and the Filer continues to operate that franchise within the Filer’s corporate entity. The operations of the National Football League franchise contribute to the Filer’s purpose of carrying out its charitable objectives by generating revenues to support its charitable activities.

9. The Foundation has been giving back to Wisconsin's communities since the Filer established the Foundation in 1986 at the direction of Judge Robert J. Parins, then President of the Filer, "as a vehicle to assure continued contributions to charity." The Foundation is an entity independent of the Filer although the individual trustees are directors of the Filer and there is a requirement in the trust agreement that at least one individual trustee must be a member of the Filer’s Executive Committee of the Board of Directors. The Filer is the primary contributor to the Foundation. The Foundation supports charities possessing one or more of the following goals: perpetuates a community environment that promotes families and the competitive value of athletics; contributes to player and fan welfare; ensures the safety and education of children; and/or prevents cruelty to animals.

10. The proceeds of the Offering will be maintained in a segregated account and will be used for capital expenditures and improvements of the stadium in which it holds games (known as Lambeau Field) such as new video boards and concourse improvements. None of the proceeds of the Offering will be used for ordinary operating expenses such as player costs and general administration of the National Football League franchise. The Filer maintains a segregated account for operating funds to fund operating expenses, contribute to the Foundation and contribute directly to charities.

11. The authorized capital stock of the Filer consists of 10,000,000 shares of common stock with no par value. As of October 15, 2021, there were approximately 5,009,476 shares of Common Stock issued and outstanding held by approximately 361,375 shareholders.

12. The Articles provide that no shareholder of the Filer shall receive any dividend, pecuniary profit or emolument by virtue of his or her being a shareholder of the Filer. The Filer may not distribute the proceeds from liquidation to its shareholders.

13. The Filer’s bylaws, as amended, provide that no holder of shares of common stock may sell, assign, exchange, give, pledge, encumber or otherwise transfer or dispose of any shares of common stock, subject to two exceptions. A person may transfer shares of common stock to an “immediate family” member by gift, or in the event of death, and an entity may transfer shares of common stock to certain persons associated with such entity as approved by the Filer.

14. The certificates representing the shares of common stock include a restrictive transfer legend and a statement referring to the Filer’s non-profit status.

15. In 1997, the Filer commenced an offering in the United States of additional shares of Common Stock pursuant to which the Filer sold 120,010 shares of Common Stock at a price of US$200 per share. In connection with this offering, in 1997, the Filer received a “no-action” letter issued by the Securities and Exchange Commission on the basis that the shares of Common Stock are not securities for purposes of the U.S. federal Securities Act of 1933. With respect to the securities laws of each of the 50 states, the Filer proceeded pursuant to no-action positions and/or non-profit issuer exemptions from both securities and broker-dealer registration requirements under such laws. The proceeds of this offering served as part of the financing for a major redevelopment of Lambeau Field.

16. In 2011, the Filer commenced another offering in the United States of additional shares of Common Stock pursuant to which the Filer sold 275,922 shares of Common Stock at a price per share of $250 per share. This offering was also made in reliance on the 1997 “no-action” letter issued by the Securities and Exchange Commission. With respect to the securities laws of each of the 50 states, the Filer proceeded pursuant to no-action positions that either were current or dated back to 1997 and/or non-profit issuer exemptions from both securities and broker-dealer registration requirements under such laws. There were 2,319 Canadians who purchased an aggregate of 2,442 shares of Common Stock in the 2011 offering. The proceeds of this offering were used for stadium improvements including expanding the south end zone by adding new seats and entrance gates; adding two video boards; installing a new sound system; adding a viewing platform in the north end zone; and adding improved amenities.

17. On or about November 16, 2021, the Filer intends to commence an offering of shares of common stock (the Offering) at a price of US$300 per share together with a handling fee of US$35 for each subscription. The initial amount of the Offering is intended to be 300,000 shares. The Filer reserves the right to increase or decrease the size of the Offering at any time, subject to authority to offer up to 604,068 shares of common stock. The shares of common stock that the Filer is offering pursuant to the Offering are referred to as the “Offered Shares.”

18. The Filer desires to offer up to 300,000 Offered Shares in the United States and in each of the Jurisdictions pursuant to the Offering, subject to the ability to increase such amount at its discretion. The Filer would offer the Offered Shares at a price of US$300 per share together with a handling fee for each subscription that may be of US$35 or some other amount. The Filer intends to offer the Offered Shares in each of the Jurisdictions until February 25, 2022, subject to extension, or until the Offering is fully subscribed.

19. The distribution of the Offered Shares by the Filer will be made pursuant to an offering document (the Offering Document) that contains disclosure regarding the terms and conditions of the Offering, a description of the Offered Shares, the management of the Filer, restrictions on transfer of the Offered Shares and associated fees and that the Offered Shares do not represent the possibility of profit or provide dividends, distributions, tax or other benefits to holders.

20. Each prospective purchaser of Offered Shares will have the opportunity to review the Offering Document online at www.packersstock.com and will be required to complete and sign a subscription agreement. Subscribers for the Offered Shares may complete their subscription agreement online or by mailing their completed subscription agreement to the Filer’s subscription agent, EQ Shareowner Services. A prospective purchaser of Offered Shares will also have the opportunity to ask to receive the Offering Document by mail. In that case, the subscriber would mail their completed subscription agreement to the Filer’s subscription agent.

21. The Filer maintains, by way of additional disclosure for the Offering, a website at www.packersstock.com on which the Filer posts information concerning the history of the Filer, the Offering Document, information regarding certificates representing the Offered Shares and responses to frequently asked questions.

22. The net proceeds of the Offering will be deposited in the Filer’s segregated capital improvements fund. Withdrawals from such fund may be used only for stadium or other capital improvements. Proceeds from the Offering will not be commingled with the general cash balances of the Filer or used to pay ordinary operating expenses of the Filer. The use of proceeds of the Offering for capital reserve and capital improvements is consistent with the charitable purposes of the Filer by helping enable the Filer to enhance its stadium so that it can generate revenues to support its charitable activities.

23. The Filer intends to do the following in respect of advertising the Offered Shares: (i) the Filer will deliver a press release to media outlets in the United States, including Green Bay and Milwaukee, Wisconsin; (ii) the Filer will deliver a press release to media outlets in select Canadian cities; (iii) the Filer intends to purchase advertising that will include digital advertising, but (a) while some advertising may target purchasers that reside in Canadian provinces and territories, the advertising will be largely focused on select U.S. markets and (b) advertising will include an appropriate disclaimer highlighting that the Offered Shares do not constitute an investment in “stock” in the common sense of the term; (iv) the Filer will respond to and cooperate with media inquiries; and (v) the Filer’s website will make it clear that purchasers who reside in Canadian provinces and territories can purchase the Offered Shares (collectively, the Advertising).

24. The objects and purposes of the Filer as well as use of the proceeds raised by the proposed offering of Offered Shares are consistent with and satisfy the requirements of the exemption under section 2.38 of NI 45-106. In particular, the prospectus requirement under the Act and the securities legislation of the Jurisdictions does not apply to an issuer that is organized exclusively for educational, benevolent, fraternal, charitable, religious or recreational purposes and not for profit in a security of its own issue if: (i) no part of the net earnings benefit any security holder of the issuer; and (ii) no commission or other remuneration is paid in connection with the sale of the security. The Articles provide that the Filer is required to be non-profit sharing and that no shareholder may receive any dividend or pecuniary profit by virtue of being a shareholder in the Filer. In addition, the Filer is required to donate its profit to certain charitable causes, and in the event of a dissolution of the Filer, the profits and assets of the Filer must go to community programs, charitable causes and other similar causes. The Articles also provide that the Filer may create a capital reserve and therefore is not compelled to distribute all of its profits.

25. The Filer may be unable to rely on this exemption in connection with the Offering because incidental to its purposes the Filer conducts athletic contests and operates a football team with substantial revenues and expenses.

26. The Filer may also be unable to use section 2.38 of NI 45-106 because it states that such exemption is unavailable if any remuneration is paid in connection with the sale of the security.

27. It is contemplated that the Filer may engage advertising, marketing and other consultants and advisors to assist the Filer with the Advertising, but no portion of the compensation paid to them will be based on the number of Offered Shares sold in the form of commissions or otherwise.

28. The Filer has considered whether, under National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103) and the Legislation, it could be considered to be engaged in or holding itself out as engaging in the business of trading in securities and therefore required to register as a dealer, rely on an exemption from the dealer registration requirement or seek exemptive relief from the dealer registration requirement. In light of the particular facts and circumstances of the Filer, including the fact that it does not hold itself out as being in the business of trading in securities, does not trade in securities frequently, does not receive any remuneration for trading in securities, does not act in an intermediary capacity, does not produce or intend to produce a distinct profit from trading in securities, and does not employ or otherwise contract with persons to perform activities on its behalf that are similar to those performed by a registrant, and having considered the guidance in section 1.3 of the Companion Policy to NI 31-103, the Filer has concluded that it should not be considered to be engaged in registrable activities and therefore does not require relief from the dealer registration requirement of the Legislation.

29. The proposed Offering of Offered Shares in the United States, as was the case in the 1997 offering and the 2011 offering of shares of Common Stock, will be made in reliance on a “no-action” letter issued by the Securities and Exchange Commission in 1997 on the basis that the shares of Common Stock are not securities for purposes of the U.S. federal Securities Act of 1933 and, with respect to the securities laws of each of the 50 states, pursuant to previous or current no-action positions and/or non-profit issuer exemptions from both securities and broker-dealer registration requirements under such laws.

30. The Filer will not sell more than 200 Offered Shares in the aggregate to any one individual (counting any shares that the person may have purchased in the 1997 offering and the 2011 offering), and any shareholder who currently owns 200,000 shares of Common Stock may not purchase any Offered Shares.

Decision

The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.

To the extent that the Offered Shares are securities for the purposes of the Legislation, the decision of the principal regulator under the Legislation is that the Requested Relief is granted, provided that:

(a) the Filer is organized exclusively for educational, benevolent, fraternal, charitable, religious or recreational purposes and not for profit and that, incidental to its purposes, the Filer shall have the right to conduct athletic contests, operate a football team, or such other similar projects for the purpose of carrying out its charitable purposes;

(b) the Foundation is organized exclusively for educational, benevolent, fraternal, charitable, religious or recreational purposes and not for profit;

(c) no part of the net earnings of the Filer benefit any security holder of the Filer;

(d) the net proceeds of the Offering will be used only for stadium or other capital improvements and will not be commingled with the general cash balances of the Filer or used to pay ordinary operating expenses of the Filer;

(e) no commission or other remuneration is paid in connection with the sale of the Offered Shares pursuant to the Offering, other than to advertising, marketing and other consultants and advisors to assist the Filer with the Advertising;

(f) the Filer has delivered a copy of this decision and the Offering Document to each purchaser of the Offered Shares pursuant to the Offering;

(g) the Filer maintains a website on which it posts certain information, including information regarding the Green Bay Packers professional football team that the Filer operates; and

(h) the prospectus requirements of the Legislation will apply to the first trade in any Offered Shares acquired by Canadian purchasers pursuant to this decision unless the following conditions are met:

(i) the Filer was not a reporting issuer in any jurisdiction of Canada at the distribution date, or is not a reporting issuer in any jurisdiction of Canada at the date of the trade; and

(ii) 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% of the outstanding securities of the class or series, and

ii. did not represent in number more than 10% of the total number of owners directly or indirectly of securities of the class or series.

Cecilia Williams Frances Kordyback

Commissioner Commissioner

Ontario Securities Commission Ontario Securities Commission