TMX Group and Maple Group enter into support agreement
TMX Group and Maple Group enter into support agreement
- TMX Group Board unanimously supports Maple proposal
- Current offer price and structure preserved
- $39 million reverse termination fee
- Maple offer extended to January 31, 2012
- Transaction remains subject to regulatory approvals
- TMX Group and Maple to host media conference call at 10:00 am ET on Monday, October 31, 2011
TMX Group Inc. and Maple Group Acquisition Corporation (Maple), today announced that they have entered into a support agreement in respect of Maple’s proposed acquisition of all of the outstanding TMX Group shares pursuant to an integrated two-step transaction valued at approximately $3.8 billion.
Wayne Fox, TMX Group Board Chair, made the following statement:
“The Board carefully examined the Maple proposal, its value to shareholders and its potential benefits to the company and the Canadian capital markets. TMX Group and Maple reached agreement on the strategic direction of the company and addressed issues we had previously identified to the satisfaction of both parties. The Board has unanimously determined that the Maple offer is in the best interests of the company, our shareholders and stakeholders, and advises our shareholders to accept the Maple proposal. We look forward to working with regulatory authorities towards obtaining approval of a transaction that enhances and strengthens Canadian capital markets.”
Tom Kloet, TMX Group Chief Executive Officer, added the following comments:
“TMX Group is the cornerstone of Canada’s capital markets and an important catalyst for national economic activity, capital formation and foreign investment. This is a unique opportunity to create an integrated exchange and clearing group that can provide efficiencies and new capabilities for the benefit of all market participants. Further, the investment in our company by leading Canadian pension funds and financial institutions will contribute to the success of our business and will strengthen our ability to compete and grow in the highly competitive global exchange sector. This is the right path forward for TMX Group.”
Speaking on behalf of Maple’s investors, Luc Bertrand said:
“We welcome the TMX Group Board’s support for this transaction and are very pleased to be working with Tom Kloet and his team in the pursuit of a common vision to create an innovative, open and integrated exchange and clearing group. The combined company will be well-positioned to pursue growth opportunities through innovative new products and services, expanded distribution and international acquisitions or joint ventures. We will be working together with TMX Group to obtain the required regulatory approvals and remain confident we can do so by early 2012.”
Reasons for TMX Group Board Support of the Maple Offer
The TMX Group Board is unanimously recommending that TMX Group shareholders accept and tender their shares to the Maple offer, and vote in favour of the second-step arrangement transaction. In making its determinations, the TMX Group Board took into account a number of factors, including the value of the transaction to TMX Group shareholders as well as the expected benefits of the Maple transaction to TMX Group and Canadian capital markets participants and other stakeholders. These include:
- Shareholder value. The current offer price and structure of the Maple offer, which has been preserved, reflects the enhanced consideration, payable in cash and Maple common shares, offered by Maple on June 22, 2011.
- Opportunity to Create an Integrated Exchange and Clearing Group. The Maple transaction affords a unique opportunity to create an integrated group that can provide trading, clearing, settlement and depository services for a broad array of financial instruments. CDS' clearing, settlement and custodial business will further diversify TMX Group's business and generate growth opportunities.
- Benefits to Capital Markets Participants from CDS Integration. The integration of CDS into TMX Group is expected over time to generate capital efficiencies and cost savings that will benefit all users. Enhanced cross-margining capabilities are also expected to drive value to participants. In addition, TMX Group's position to provide OTC clearing solutions to Canadian capital markets will be further enhanced.
- Stronger Position to Pursue Growth and International Acquisitions. The completion of the Maple transaction on the terms proposed, including the proposed acquisition of Alpha and CDS, will augment the international competitiveness of the combined company and position it to grow in an increasingly competitive and consolidating global exchange industry. In addition, the combined company will have enhanced scope and scale through which to more effectively pursue international acquisitions and joint ventures.
The TMX Group Board also considered the various changes provided for in the support agreement, as well as the changes and enhancements since Maple's original offer of June 13, 2011. These include:
- Maple has committed to use commercially reasonable efforts to obtain all necessary regulatory approvals (provided that Maple will not be required to accept conditions of approval of regulators that would be reasonably expected to cause a material detriment) and TMX Group has committed to support Maple in this regard.
- Maple has agreed to pay TMX Group a reverse termination fee of $39 million if the Maple transaction is not completed because required regulatory approvals are not obtained.
- Maple has agreed to amend its offer conditions to reflect conditions that are more customary for a board-supported transaction. Consequently, there is an increased likelihood that the conditions to the Maple offer will be satisfied.
- The support agreement, and further details previously disclosed by Maple, also address questions related to corporate governance raised by the TMX Group Board, as follows:
- appointment of a Chair of the Maple Board who is independent and not appointed under a nomination right, and who will be selected in consultation with TMX Group;
- four independent members of the TMX Group Board (who will be jointly selected by TMX Group and Maple) will join the Maple Board. At least 50% of the proposed 15 member Board of Maple will be independent, consistent with current TMX Group governance, and will also include four nominees from Maple pension fund investors, at least one nominee from Canada's independent investment dealer community, four nominees from Maple bank-owned participating organizations and the CEO;
- the composition of the Maple Board will respect the existing TMX Group Board structure, including that at least 25% of the directors will be residents of Québec, at least 25% of directors will have expertise in, or be associated with, the Canadian public venture capital markets, and at least 25% of directors will have expertise in derivatives;
- a Board Governance Committee comprising only independent members, including two independent board members from the current TMX Group Board;
- individual standstill agreements to be provided by each of the Maple investors that is a participating organization in Toronto Stock Exchange that it will not increase its ownership in TMX Group (or Maple) for a period of five years post-closing (with exceptions for ordinary course client and market-making activities);
- with respect to the nomination rights granted to eight of the Maple investors to appoint directors, a six year time limit on these nomination rights, with the Governance Committee to be responsible for approving proposed nominees; and
- the nomination rights of an investor will cease if it is competing with Maple or its subsidiaries (including TMX Group and CDS when acquired) or has a non-passive investment in a competitor.
- Canadian regulators are currently reviewing the Maple transaction and they are considering the full range of public policy issues, including those relating to market structure. The TMX Group Board is supporting the Maple transaction on the understanding that in their reviews, these regulators will protect the interests of all participants in Canadian capital markets. In addition, after completion of the transaction, Canadian securities regulators will have continuing oversight of Maple and TMX Group, with extensive public interest powers, for the benefit of those participants.
- Maple has confirmed its previously stated intention that the existing TMX Group senior management will become the senior management of Maple, under the direction of TMX Group's current Chief Executive Officer, who will also serve as CEO of Maple and sit on the Board of Directors of Maple. In addition, the acquisition will preserve substantially all of TMX Group's existing employees, thus ensuring continuity and quality of operations.
- Maple's name will incorporate the "TMX" brand, under which it will operate, while maintaining all of the brands under the current TMX Group umbrella, such as Toronto Stock Exchange, TSX Venture Exchange, Montréal Exchange, etc.
- TMX Group has agreed not to solicit or otherwise facilitate any potential alternative transactions. Under and subject to the terms of the support agreement, the TMX Group Board remains able to respond, in accordance with its fiduciary duties, to unsolicited bona fide written acquisition proposals that are more favourable to shareholders, from a financial point of view, than the Maple offer. The TMX Group Board may also withdraw its recommendation that shareholders accept the Maple offer and enter into a binding written agreement with respect to a superior proposal, subject to a right to match in favour of Maple. No break fee or termination fee would be payable to Maple in such circumstances.
- Maple has agreed to use commercially reasonable efforts to enter into binding agreements to acquire Alpha and CDS prior to the expiry of its bid and to consult with TMX Group as to the terms of those agreements before they are executed.
- The TMX Group Board is permitted under the support agreement to consider whether the exercise of its fiduciary duties would require it to change its recommendation of the Maple offer in light of the final terms of the Alpha and CDS transactions. Such a change in recommendation would not result in payment of any termination fee to Maple.
Details regarding Maple's business plan and commitments it has made to respect and serve the core elements of Canada's vibrant capital markets, including with respect to corporate governance, risk management, fees, access and continued responsiveness to all market participants, can be found in its securities applications, which are available at www.abetterexchange.com.
TMX Group and Maple have agreed to proceed diligently, in a coordinated fashion, to obtain all approvals required for the completion of Maple's offer, including approvals by securities regulators and the Competition Bureau.
The TMX Group Board has received separate opinions from each of Merrill Lynch Canada Inc. ("BofA Merrill Lynch") and BMO Nesbitt Burns Inc. ("BMO Capital Markets"), to the effect that, as of the date of each such opinion and based upon and subject to the various assumptions, limitations and qualifications set forth in each such opinion, the consideration to be offered to holders of TMX Group common shares (other than Maple, Maple's investors and their respective affiliates) in the Maple acquisition is fair, from a financial point of view, to such holders. The full written text of each of those opinions, which describe, among other things, the assumptions made, procedures followed, factors considered and limitations on the review undertaken, by BofA Merrill Lynch and BMO Capital Markets, respectively, will be included in a Notice of Change to TMX Group's Directors' Circular, to be filed on SEDAR in due course.
Additional Details About the Maple Offer
In connection with entering into the support agreement, Maple has agreed to extend its offer until January 31, 2012. Maple or TMX Group may terminate the support agreement if the Maple offer has not been completed by February 29, 2012, provided that this outside date may be extended to April 30, 2012 in order to obtain the required regulatory approvals.
Maple also announced that it has today entered into an agreement with Alpha Group setting forth a mechanism to agree on the purchase price for Alpha Group which will then form the basis for an offer to be made to Alpha Group investors. Maple has also begun its due diligence investigation of CDS in order to enable it to make a proposal to acquire CDS.
Maple's offer is part of an integrated acquisition transaction, the first step of which is to acquire between 70% and 80% of the TMX Group shares for $50 in cash per share, on a pro rated basis, to be followed by a second step court approved plan of arrangement that will provide shareholders (other than Maple) with Maple shares in exchange for their remaining TMX Group shares. The offer remains subject to a non-waivable minimum condition that at least 70% of the TMX Group shares must be tendered to the Offer on or before its final expiry. Assuming the minimum of 70% of the TMX Group shares are acquired for cash under Maple's offer, former TMX Group shareholders would own 41.7% of Maple following the second step plan of arrangement. Assuming the maximum of 80% of the TMX Group shares are acquired for cash under the first step offer, former TMX Group shareholders would own 27.8% of Maple following the second step plan of arrangement.
Additional details regarding the status of the Maple acquisition and the support agreement will be available in a notice of extension and variation that will be mailed shortly to TMX Group shareholders concurrently with a directors' circular of TMX Group setting forth its reasons for its recommendation of the Maple acquisition and other matters. These documents will also be filed on SEDAR and will also be available atwww.abetterexchange.com and www.tmx.com.
JOINT TMX GROUP - MAPLE MEDIA CALL
TMX Group and Maple will hold a joint media conference call on October 31, 2011 at 10 a.m. (ET).
Phone numbers for the live call are 647-427-7450 or 1-888-231-8191. The audio webcast of the conference call will also be available on TMX Group's website at www.tmx.com, under Investor Relations.
An audio replay of the conference call will be available at 416-849-0833 or 1-855-859-2056, pass code 23884557.
Caution Regarding Forward-Looking Information
This press release contains "forward looking information" (as defined in applicable Canadian securities legislation) that is based on expectations, estimates and projections as of the date of this press release. Examples of forward-looking information can be identified by the use of forward-looking words such as "plans", "expects", and "expected". Forward looking information, by its nature, requires us to make assumptions and is subject to significant risks and uncertainties which may give rise to the possibility that our expectations or conclusions will not prove to be accurate and that our assumptions may not be correct. These factors, many of which are beyond our control, include: market competition; business and economic conditions generally; the level of trading and activity on our markets, and in particular trading in our key products. Additional information about these and other factors are located in reports filed with Canadian securities regulators.
We have no intention to update this forward-looking information, except as required by applicable securities law. This forward-looking information should not be relied upon as representing our views as of any date subsequent to the date of this press release.
Information for U.S. Shareholders
The offer is being made for the securities of a Canadian company that does not have securities registered under Section 12 of the U.S. Securities Exchange Act of 1934, as amended (the "U.S. Exchange Act"). Accordingly, the offer is not subject to Section 14(d) of the U.S. Exchange Act, or Regulation 14D promulgated by the U.S. Securities and Exchange Commission (the "SEC") thereunder. The offer is being conducted in accordance with Section 14(e) of the U.S. Exchange Act and Regulation 14E promulgated by the SEC thereunder (with settlement being subject to a longer period than would typically apply for securities of U.S. public companies).
The Maple shares to be issued to TMX Group shareholders (including U.S. shareholders) other than Maple pursuant to the plan of arrangement have not been, and will not be, registered under the U.S. Securities Act of 1933, as amended (the "U.S. Securities Act"), or under the securities law of any state or other jurisdiction of the United States. The Maple shares to be issued pursuant to the plan of arrangement will be issued in reliance upon the exemption from the registration requirements of the U.S. Securities Act provided by section 3(a)(10) thereof and only to the extent that corresponding exemptions from the registration or qualification requirements of state "blue sky" securities laws are available. The U.S. Securities Act imposes restrictions on the resale of securities received pursuant to the plan of arrangement by persons who are, or within 90 days before the resale were, "affiliates" of Maple.
All dollar references in this press release are in Canadian dollars. On October 28, 2011, the Bank of Canada noon rate of exchange for U.S. dollars was CDN. $1.00 - U.S. $1.0043.
Notice to Shareholders in the United Kingdom and European Economic Area
The offer is only being made within the European Economic Area ("EEA") pursuant to an exemption under Directive 2003/71/EC (together with any applicable adopting or amending measures in any relevant member state (as defined below), the "Prospectus Directive"), as implemented in each member state of the EEA (each, a "relevant member state"), from the requirement to publish a prospectus that has been approved by the competent authority in that relevant member state and published in accordance with the Prospectus Directive as implemented in that relevant member state or, where appropriate, approved in another relevant member state and notified to the competent authority in that relevant member state, all in accordance with the Prospectus Directive. Accordingly, in the EEA, the offer and documents or other materials in relation to Maple shares are only addressed to, and are only directed at, (a) qualified investors in a relevant member state within the meaning of Article 2(1)(e) of the Prospectus Directive, as adopted in the relevant member state, and (b) persons who hold, and will tender, the equivalent of at least €50,000 worth of TMX Group shares (collectively, "permitted participants"). These documents may not be acted or relied upon by persons in the EEA who are not permitted participants.
With reference to the U.K. Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended (the "Order"), the offer and any materials in relation to Maple shares is only directed at persons in the United Kingdom that are (a) investment professionals falling within Article 19(5) of the Order or who fall within Article 49(2)(a) to (d) of the Order; (b) holders of TMX Group shares at the time of communication of the offer and such materials; or (c) persons to whom they may otherwise lawfully be communicated (collectively, "relevant persons"). In the United Kingdom, Maple shares are only available to, and the offer may only be accepted by, relevant persons who are also permitted participants, and as such, any investment or investment activity to which this document relates is available only to, and may be relied upon only by, relevant persons who are also permitted participants.