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Centrinity Inc. - MRRS Decision
Headnote
Mutual Reliance Review System for ExemptiveRelief Applications - going private transaction - continuingemployment agreements entered into between two senior officersand the corporations proposing an amalgamation - senior officershold approximately 6% of the shares of the corporation beingacquired under the amalgamation - employment agreements negotiatedat arm's length - terms of employment agreements consistentwith those of similarly situated directors and consultants ofthe parties to the amalgamation and relevant peers in the marketplace- terms of the agreements fully disclosed in the informationcircular provided to securityholders in connection with theamalgamation - shares owned by senior officers not to be countedtoward compliance with minority approval requirement - reliefgranted from valuation requirements in connection with the amalgamation.
Applicable Ontario Rules
Rule 61-501 - Insider Bids, Issuer Bids, GoingPrivate Transactions and Related Party Transactions, ss. 4.4,4.5(1) and 9.1.
IN THE MATTER OF
ONTARIO SECURITIES COMMISSIONRULE 61-501,
QUEBEC SECURITIES COMMISSIONPOLICY STATEMENT Q-27 AND
SECTION 106.1 OF THE REGULATIONRESPECTING SECURITIES (QUEBEC)
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
CENTRINITY INC.
MRRS DECISION DOCUMENT
WHEREAS an application (the "Application")has been received by the securities regulatory authority orregulator (the "Decision Makers") in each of Ontarioand Québec from Open Text Corporation ("Open Text"),Centrinity Inc. ("Centrinity") and 3801853 CanadaInc., a direct wholly-owned subsidiary of Open Text ("Subco"),for a decision pursuant to Ontario Securities Commission Rule61-501 ("Rule 61-501"), Commission des valeurs mobilièresdu Québec Policy Q-27 ("Policy Q-27") and section263 of the Securities Act (Québec) that, in connectionwith the proposed amalgamation (the "Amalgamation")of Centrinity and Subco pursuant to which Open Text would becomethe sole owner of all of the outstanding shares of the amalgamatedcorporation, the Amalgamation be exempt from the requirementto obtain a formal valuation under Rule 61-501, Policy Q-27and section 106.1 of the Regulation respecting securities (Québec)(the "Regulation" and together with Rule 61-501 andPolicy Q-27, the "Legislation") (collectively, the"Valuation Requirement");
AND WHEREAS, pursuant to the Mutual RelianceReview System for Exemptive Relief Applications (the "System"),the Ontario Securities Commission is the principal regulatorfor the Application;
AND WHEREAS Open Text, Centrinity andSubco have represented to the Decision Makers that:
1. Open Text is a corporation amalgamatedunder the Business Corporations Act (Ontario). Thecommon shares in the capital of Open Text are listed on theToronto Stock Exchange (the "TSX") and the NasdaqNational Market. Open Text is a reporting issuer in each provinceof Canada.
2. Centrinity is a corporation continued underthe Canada Business Corporations Act ("CBCA").The Class A common shares in the capital of Centrinity (the"Centrinity Shares") are listed on the TSX. Centrinityis a reporting issuer in British Columbia, Alberta and Ontario.As at September 19, 2002, there were approximately 24,199,392Centrinity Shares issued and outstanding.
3. Subco is a corporation incorporated underthe CBCA and is a wholly-owned subsidiary of Open Text. Subcois not a reporting issuer in any province of Canada. Subcowill be used for the sole purpose of effecting the Amalgamation.
4. Pursuant to a merger agreement dated asof September 19, 2002 (the "Merger Agreement") betweenOpen Text, Subco and Centrinity, Open Text intends to acquireall of the issued and outstanding Centrinity Shares, includingCentrinity Shares issuable upon the exercise of outstandingstock options, pursuant to the Amalgamation.
5. The Amalgamation will result in each holderof Centrinity Shares (a "Centrinity Shareholder")receiving one redeemable preferred share (the "PreferredShares") in the capital of the corporation to be formedby the Amalgamation ("Amalco") for each CentrinityShare. Pursuant to the Amalgamation, Open Text will receivecommon shares in the capital of Amalco in exchange for itsshares of Subco. On the second business day following completionof the Amalgamation, each Preferred Share will be redeemedfor $1.26 in cash (the "Redemption"). Upon completionof the Redemption, Open Text will own all of the shares ofAmalco.
6. A special meeting (the "Special Meeting")of the Centrinity Shareholders to vote on the Amalgamationis expected to be held on November 1, 2002 in accordance withthe terms of the Merger Agreement.
7. As a condition to entering into the MergerAgreement, Open Text has entered into employment agreementsdated as of September 19, 2002 with certain employees of Centrinitythat take effect upon completion of the Amalgamation. In particular,Open Text has entered into employment agreements (collectively,the "Employment Agreements") with two senior officersof Centrinity, Steven Asbury and John Myers (collectively,the "Key Employees").
8. Concurrent with the signing of the MergerAgreement, Open Text and Subco entered into a Supporting ShareholderAgreement (the "Support Agreement") with CentrinityShareholders, including each of the Key Employees, holdingin aggregate approximately 17.0% of the issued and outstandingCentrinity Shares (including Centrinity Shares issuable uponthe exercise of vested outstanding stock options that havean exercise price of less than $1.26 per share). Pursuantto the Support Agreement, these Centrinity Shareholders haveagreed to vote their Centrinity Shares in favour of the Amalgamationat the Special Meeting unless, subject to the certain conditions,a superior competing transaction is proposed or announced.
9. As at September 19, 2002, the Key Employeeshave represented to Open Text that they collectively own,directly or indirectly, approximately 6.0% of the issued andoutstanding Centrinity Shares (including Centrinity Sharesissuable upon the exercise of outstanding vested stock optionsthat have an exercise price of less than $1.26 per share).
10. Steven Asbury owns, directly or indirectly,1,301,091 Centrinity Shares and options to acquire an aggregateof 81,324 Centrinity Shares. Pursuant to the Support Agreement,Mr. Asbury has agreed to surrender these options to Centrinityfor no consideration at the effective time of the Amalgamation.
11. John Myers owns, directly or indirectly,10,000 Centrinity Shares and options to acquire an aggregateof 260,000 Centrinity Shares. Pursuant to the Support Agreement,Mr. Myers has agreed to exercise a portion of these optionsto acquire 182,500 Centrinity Shares before the effectivetime of the Amalgamation and to surrender the balance of theseoptions to Centrinity for no consideration at the effectivetime of the Amalgamation.
12. Each Employment Agreement was negotiatedon an arm's length basis, independent of the Merger Agreementand the Support Agreement.
13. Under his current terms of employment,Steven Asbury is entitled to an annual salary of $140,535,long-term disability and life insurance, options to purchaseup to an aggregate of 81,324 Centrinity Shares (which Mr.Asbury has agreed to cancel and not to exercise prior to completionof the Amalgamation) and may be entitled to a performancebonus of up to $42,161.
14. Under his current terms of employment,John Myers is entitled to an annual salary of $122,500, aperformance bonus of up to $150,000, long-term disabilityand life insurance and options to purchase up to an aggregateof 260,000 Centrinity Shares (of which options to purchase72,500 Centrinity Shares have not vested and will not be exercisableprior to completion of the Amalgamation).
15. If the Amalgamation is completed, eachEmployment Agreement provides that the Key Employee is toreceive compensation consisting of an annual base salary of$180,000 in the case of Steven Asbury and $200,000 in thecase of John Myers (in each case reviewable annually), anannual payment of $20,000 in the case of Steven Asbury incompensation for the loss of certain employment benefits thathe is currently entitled to receive from Centrinity that willnot continue after the Amalgamation, an annual bonus of upto $150,000 based on meeting certain performance criteria,options to purchase up to 40,000 common shares of Open Textand such other benefits as are comparable to those providedby Open Text to other senior executives of Open Text.
16. The compensation to be paid under theEmployment Agreements is consistent with that paid to similarlysituated executives of Open Text and to relevant peers inthe marketplace. Given that Centrinity's cash resources havebeen conserved by Centrinity, the cash compensation to bereceived by the Key Employees pursuant to the Employment Agreementsexceeds that received pursuant to their current employmentarrangements with Centrinity.
17. The Employment Agreements were enteredinto for reasons other than to increase the value of the considerationpayable pursuant to the Amalgamation for the Centrinity Sharesheld by the Key Employees.
18. The purpose of the Employment Agreementsis to assure the continued service of the Key Employees toOpen Text in the event that the Amalgamation is completed.The expertise and ongoing services of the Key Employees, eachof whom has played a key role in the development and/or managementof Centrinity's business, will be of significant continuingvalue to Open Text should the Amalgamation be completed. Anybenefits received by the Key Employees pursuant to the EmploymentAgreements will be in exchange for such expertise and services,not the disposition of Centrinity Shares pursuant to the Amalgamation.
19. In connection with the Special Meeting,Centrinity will mail on or about October 7, 2002 to each CentrinityShareholder (i) a notice of special meeting; (ii) a form ofproxy; and (iii) a management proxy circular (the "Circular").The Circular will be prepared in accordance with the CBCAand the Legislation, and will disclose the material termsof the proposed Amalgamation and the Employment Agreementsas well as the fact that an exemption from the Valuation Requirementwas obtained.
20. The Centrinity Shares that the Key Employeesbeneficially own or over which they exercise control or directionwill not be counted toward the minority approval requiredunder the Legislation (other than in the capacity of proxyholders having no discretion in respect of how the CentrinityShares will be voted in connection with the Amalgamation).
AND WHEREAS, pursuant to the System,this MRRS Decision Document evidences the determination of theDecision Makers (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, in connection with the Amalgamation,Centrinity shall be exempt from the Valuation Requirement, providedthat Centrinity complies with the other applicable provisionsof the Legislation.
October 4, 2002.
"Ralph Shay"