UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 UNDER
THE SECURITIES EXCHANGE ACT OF 1934
For the month of: March 2019
Commission file number 001-36897
FIRSTSERVICE CORPORATION
(Translation of registrant’s name into English)
1140 Bay Street, Suite 4000
Toronto, Ontario, Canada
M5S 2B4
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
Form 20-F [ ] Form 40-F [X]
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): [ ]
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): [ ]
Indicate by check mark whether by furnishing the information contained in this Form, the Registrant is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934:
Yes [ ] No [X]
If “Yes” is marked, indicate the file number assigned to the Registrant in connection with Rule 12g3-2(b): N/A
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
| FIRSTSERVICE CORPORATION | ||
| Date: March 14, 2019 | /s/ Jeremy Rakusin | |
| Name: Jeremy Rakusin | ||
| Title: Chief Financial Officer |
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EXHIBIT INDEX
| Exhibit | Description of Exhibit |
| 99.1 | FirstService Material Change Report – Long-Term Incentive Arrangement, March 13, 2019. |
| 99.2 | Long-Term Incentive Arrangement Term Sheet, March 12, 2019. |
Exhibit 99.1
FIRSTSERVICE CORPORATION
MATERIAL CHANGE REPORT
(Form 51-102F3)
| 1. | Name and Address of Company |
FirstService Corporation (“FirstService” or the “Company”)
1140 Bay Street, Suite 4000
Toronto, Ontario M5S 2B4
| 2. | Date of Material Change |
March 12, 2019.
| 3. | News Release |
The news release was disseminated on March 12, 2019 through GlobeNewswire.
| 4. | Summary of Material Change |
On March 12, 2019, FirstService announced that it had entered into an agreement with Jay S. Hennick, the Company’s Founder, Chairman and largest voting shareholder, pursuant to which disinterested holders of FirstService’s Subordinate Voting Shares will be given an opportunity to approve a transaction to settle the Restated Management Services Agreement, including the long-term incentive arrangement, entered into on February 1, 2004, between the Company, Mr. Hennick and Jayset Management FSV Inc., a corporation controlled by Mr. Hennick and to eliminate the dual class voting structure of FirstService.
| 5. | Full Description of Material Change |
On March 12, 2019 – FirstService announced that it had entered into an agreement with Jay S. Hennick, the Company’s Founder, Chairman and largest voting shareholder, pursuant to which disinterested holders of FirstService’s Subordinate Voting Shares will be given an opportunity to approve a transaction (the “Transaction”) to settle the Restated Management Services Agreement (the “MSA”), including the long-term incentive arrangement (the “LTIA”), entered into on February 1, 2004, between the Company, Mr. Hennick and Jayset Management FSV Inc. (“HennickCo”), a corporation controlled by Mr. Hennick and to eliminate the dual class voting structure of FirstService.
Over the past several years, the FirstService Board of Directors has been considering the financial implications of the MSA as the Company continues to grow. The LTIA included in the MSA was established in 2004 in lieu of stock options and other compensation entitlements and was consistent with similar arrangements implemented at the time to motivate entrepreneurial founders/CEOs to create long-term value for shareholders. The arrangement achieved the desired result as the market value of FirstService increased by more than US$3 billion since 2004, representing an annualized return of over 24%. Given the growth of the FirstService business and the seasoned management team in place, which took on responsibility for the management and success of FirstService since the completion of the spin-off transaction in June 2015, Mr. Hennick indicated that he was prepared to receive a proposal from FirstService to terminate the MSA and unwind the dual class share structure, thereby relinquishing his effective control of the Company. In February 2019, the Board of Directors empowered the Executive Compensation Committee (the “Compensation Committee”), consisting of independent directors, Michael Stein (Chair), Bernard I. Ghert and Brendan Calder to, among other things, evaluate, make proposals, negotiate and consider the desirability, feasibility and fairness of, and report to the Board of Directors on, a potential transaction, including as to whether a potential transaction was in the best interests of the Company.
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As part of the Transaction:
| · | Henset Capital Inc., a corporation controlled by Mr. Hennick, will convert 1,325,694 Multiple Voting Shares of the Company (being 100% of the outstanding Multiple Voting Shares) into Subordinate Voting Shares on a one-for-one basis and for no consideration, thereby eliminating FirstService’s dual class share structure; |
| · | FirstService will acquire, directly or indirectly, all of the shares of HennickCo, the recipient of all fees and other entitlements under the MSA, for a purchase price determined with reference to the LTIA formula provided in the MSA which would have applied on a change of control transaction, and thereafter FirstService will terminate the MSA thereby eliminating the LTIA and all future fees and other entitlements owing thereafter; |
| · | Mr. Hennick will retain his role as Chairman of FirstService, at the discretion of the Board, with compensation commensurate with that of a Non-Executive Chairman of a public company of similar size to FirstService; and |
| · | FirstService will: (a) pay US$62.9 million in cash; and (b) issue a total of 2,918,860 Subordinate Voting Shares at a price of Cdn$115.58 per share (which is the 20-trading day VWAP of the Subordinate Voting Shares on the TSX determined on March 11, 2019, the day prior to the announcement of the Transaction). |
The Transaction is subject to, among other conditions, the approval of a majority of the disinterested holders of FirstService’s Subordinate Voting Shares at an Annual and Special Meeting of Shareholders to be held on May 3, 2019 at 2:00 p.m. in Toronto, Ontario at The Design Exchange, 234 Bay Street, Toronto-Dominion Centre (the “Meeting”). The Board (with Mr. Hennick recusing himself) believes the Transaction is in the best interests of FirstService and the holders of Subordinate Voting Shares. All FirstService directors have advised FirstService that they will vote for the Transaction at the Meeting. The Board recommends that FirstService shareholders approve the Transaction.
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The Company and Mr. Hennick have executed a binding term sheet dated March 12, 2019 and will negotiate in good faith to conclude and execute a definitive agreement contemplated by the binding term sheet no later than April 2, 2019. If the parties fail to agree and execute a definitive agreement prior to April 2, 2019, the binding term sheet will terminate and be of no further force or effect.
The Transaction will create alignment among all FirstService shareholders, each of whom will own the same class of voting shares. In addition, the Transaction will facilitate an orderly transition by providing shareholders and the Board of Directors with greater flexibility to determine the future direction of the Company. The Transaction was structured to ensure an appropriate mix of cash and share consideration to maintain the Company’s conservative balance sheet, and Mr. Hennick’s continued commitment to FirstService.
T. Rowe Price Associates, Inc., the largest holder of Subordinate Voting Shares, has advised FirstService that, based on the information provided by the Company, it supports the Transaction. T. Rowe Price Associates, Inc., on behalf of accounts over which it exercises discretionary investment authority, owns or controls approximately 17.6% of the outstanding Subordinate Voting Shares and is considered a disinterested holder of Subordinate Voting Shares for purposes of the Transaction. T. Rowe Price Associates, Inc.’s beneficial ownership could change between the date hereof and the date of the Meeting.
Immediately following the completion of the Transaction, Mr. Hennick is expected to have control and direction over 5,767,080 Subordinate Voting Shares, representing 14.8% of the then expected outstanding shares. FirstService anticipates having 39,026,207 Subordinate Voting Shares outstanding immediately following completion of the Transaction.
“I am delighted to see FirstService, the company I founded 30 years ago, mature to the point where I feel comfortable taking a more hands-off role with respect to the operations of the business,” said Jay S. Hennick. “Agreeing to give up effective voting control and ongoing contractual entitlements under the MSA, which has been in place for 15 years, was a difficult decision. I have great confidence in Scott Patterson and the rest of the leadership team, and am very excited about the Company’s prospects for the future. Retaining a significant equity investment in the Company going forward was a pre-condition and retaining strategic oversight as Chairman of the Company has always been a privilege”.
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“Working closely with Jay for more than 24 years has been rewarding,” said D. Scott Patterson, President and Chief Executive Officer of FirstService. “His vision and the culture he created were critical to our success and in delivering substantial returns for shareholders over many years. This transition of control demonstrates Jay’s confidence in our management team and his desire to remain our founding shareholder and Chairman shows his commitment to our Company’s future.”
At the Meeting, the Company also intends to seek approval to eliminate the Multiple Voting Shares as part of the authorized capital of the Company and to re-designate its Subordinate Voting Shares as Common Shares.
The cash payment under the Transaction is expected to be funded via the Company’s revolving credit facility. After giving effect to the Transaction, FirstService’s leverage is expected to increase by 0.3x Net Debt to Trailing 12 Months EBITDA.
In February 2019, the Compensation Committee and its advisors proceeded to engage in negotiations with Mr. Hennick and his advisors culminating in the Transaction. Following a rigorous independent review process, including receipt of advice from the Compensation Committee’s independent legal and compensation consultant advisors, the Compensation Committee unanimously recommended the Transaction to the Board of Directors, who then unanimously (with Mr. Hennick recusing himself) approved it. In support of its recommendation in favour of approving the Transaction, the Compensation Committee received a written opinion from its independent compensation consultant, Hugessen Consulting, that the Transaction is desirable from a compensation perspective as it would stem the ongoing dilutive effect of the LTIA, as well as better suit the current stage of the Company’s development and Mr. Hennick’s current role. Mr. Hennick and the Company believe that it was reasonable and appropriate that disinterested shareholders be given the opportunity to vote on the Transaction. The Compensation Committee also received independent legal advice from Miller Thomson LLP. The Transaction remains subject to customary closing conditions, including disinterested shareholder approval, lender approval and receipt of all other third party and regulatory consents and approvals, including from the Toronto Stock Exchange and NASDAQ.
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The Compensation Committee and the Board of Directors of the Company identified, among others, the following material considerations which it took into account with respect to, and material benefits expected to be achieved on completion of, the Transaction:
| · | the Transaction will result in the elimination of FirstService’s dual class voting structure for no consideration, the result of which: |
| – | Allows shareholders and the Board of Directors to consider a broad range of corporate decisions and strategic alternatives without a possible veto by Mr. Hennick |
| – | Provides all shareholders with the same vote in proportion to their relative equity stake in the Company |
| – | Allows investors who may not wish to invest, or whose investment policies prevent them from investing in shares of companies with dual class share structures to purchase Subordinate Voting Shares, thereby potentially enhancing liquidity, and |
| – | Allows the Company to use the Subordinate Voting Shares for purposes of raising additional capital, effecting an acquisition or merger transaction or issuing additional equity without further dilution resulting from the MSA. |
| · | the Transaction will facilitate an orderly transition of effective control by FirstService’s Founder to its shareholders, the Board of Directors and its professional management team and provides shareholders with greater flexibility to determine the future direction of the Company; |
| · | Mr. Hennick agreed to forgo all future fees and other entitlements to which he would otherwise be permitted under the MSA, and is accepting a substantial portion of the consideration under the Transaction in Subordinate Voting Shares; and |
| · | Mr. Hennick remains committed to the future direction of FirstService, and is expected to own or control 5,767,080 Subordinate Voting Shares representing 14.8% of the outstanding shares of the Company at the time of the completion of the Transaction. He will also continue to serve as non-executive Chairman of the Board of Directors. |
The required information for FirstService shareholders to consider in relation to their vote on the resolution to approve the Transaction will be contained in the management information circular to be mailed to shareholders in respect of the Meeting. This management information circular will also be available at that time on SEDAR (www.sedar.com) and on the Company’s website at www.firstservice.com. A copy of the definitive transaction agreement will also be filed on SEDAR and accessible at www.sedar.com.
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Forward-looking Statements
This report contains statements that constitute “forward-looking statements” within the meaning of applicable securities legislation, including, but not limited to, statements relating to the potential benefits expected to be achieved on the completion of the Transaction, the expected continued commitment of Mr. Hennick to FirstService, the expected voting at the Meeting to approve the Transaction by FirstService directors, contemplated changes to the articles and option plan of FirstService and future filings to be made under securities laws. Much of this information can be identified by words such as “expect to,” “expected,” “will,” “estimated” or similar expressions suggesting future outcomes or events. FirstService believes the expectations reflected in such forward-looking statements are reasonable but no assurance can be given that these expectations will prove to be correct and such forward-looking statements should not be unduly relied upon.
Forward-looking statements are based on current information and expectations that involve a number of risks and uncertainties, which could cause actual results or events to differ materially from those anticipated. These risks include, but are not limited to, risks associated with the ability to satisfy shareholder, regulatory, third party and stock exchange approvals and conditions to consummate the Transaction or for any related changes to the articles and option plan of FirstService, the market value and trading price of the Subordinate Voting Shares of FirstService and other risks related to FirstService’s business, including those identified in FirstService’s annual information form for the year ended December 31, 2018 under the heading “Risk factors” (a copy of which may be obtained at www.sedar.com) and Annual Report on Form 40-F filed with the United States Securities and Exchange Commission (a copy of which may be obtained at www.sec.gov), and subsequent filings. Forward-looking statements contained in this report are made as of the date hereof and are subject to change. All forward-looking statements in this report are qualified by these cautionary statements. Unless otherwise required by applicable securities laws, we do not intend, nor do we undertake any obligation, to update or revise any forward-looking statements contained in this report to reflect subsequent information, events, results or circumstances or otherwise.
| 6. | Reliance on subsection 7.1(2) of National Instrument 51-102 |
This report is not being filed on a confidential basis.
| 7. | Omitted Information |
No significant fact remains confidential in, and no information has been omitted from, this report.
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| 8. | Executive Officer |
If further information is required, please contact Jeremy Rakusin, Chief Financial Officer, at 416-960-9500
| 9. | Date of Report |
Dated at Toronto, Ontario, this 13th day of March 2019.
Exhibit 99.2
Execution Version
BINDING TERM SHEET
Dated March 12, 2019
The following term sheet outlines the key commercial terms forming the basis of a binding agreement (the “Transaction”) between FirstService Corporation (the “Company”) Henset Capital Inc. (“Henset”), Jayset Management FSV Inc. (“Jayset”) and Jayset Capital Corp. (“Jayset Capital”) pursuant to which the Restated Management Services Agreement dated June 1, 2015, as amended (the “MSA”), between FSV Holdco ULC (now the Company), Jayset and Jay S. Hennick (“Hennick” and, together with Jayset, the “Hennick Group”), including Article 4 thereunder, will be terminated for nil consideration and the dual class voting structure of the Company will be eliminated, subject to terms hereof.
| · | On closing, Henset Capital Inc. (“Henset”), the holder of all of the outstanding Multiple Voting Shares, will convert all of the outstanding 1,325,694 Multiple Voting Shares into Subordinate Voting Shares on a one-for-one basis without any payment therefor pursuant to the terms of the Multiple Voting Shares contained in the Articles of the Company. |
| · | On closing, the Company will acquire all of the outstanding shares of Jayset (or a newly incorporated Ontario corporation whose only asset is the shares of Jayset (“Holdco”)) from the shareholder(s) thereof (“Vendor”) for: |
| · | US$62.9 million in cash; and |
| · | 2,918,860 Subordinate Voting Shares (the “Share Consideration”). |
The parties will file an election under Section 85 of the Income Tax Act such that the Share Consideration would be received by the Vendor on a tax-deferred basis.
| · | In addition, on closing the MSA, including Article 4 thereunder, will be terminated for nil consideration. |
| · | In connection with the acquisition of Jayset or Holdco, the parties to the MSA will execute a mutual release of all claims under the MSA, including a waiver by the Hennick Group of payment of any amounts under the MSA, including any amounts that would otherwise be payable to the Hennick Group pursuant to Article 5 of the MSA on termination thereof. For avoidance of doubt: (i) the Company would pay the Base Fee (as defined in the MSA) and the Two Percent Fee (as defined in the MSA) thereon to and including the date of acquisition of Jayset and termination of the MSA, at which date such payments shall forever cease; and (ii) no Incentive Fee would be paid, in whole or in part, by the Company under the MSA in respect of any fiscal year of the Company after the year ended December 31, 2018 (or any part thereof). |
| · | Following closing, Hennick will serve as non-executive Chair of the Board of Directors. The Chair’s compensation will be established in a manner consistent with the Company’s director compensation policy approved by the Company’s board of directors and in effect from time to time (such compensation being commensurate with that of a non-executive chair of a public company of similar size and complexity to the Company). |
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| · | The parties will negotiate in good faith to conclude and execute a definitive agreement to govern the Transaction (the “Definitive Agreement”), incorporating the above provisions and otherwise containing terms and conditions customary for transactions of this nature, including representations, warranties, covenants and conditions as appropriate taking into account the structure of the transaction. |
| · | The Transaction has been approved by the Board of Directors of the Company, and will be subject to, among other things: (i) confirmation of the tax advice in form satisfactory to the Compensation Committee from PwC, the tax advisor to the Company, that the pre-closing reorganization will not have a negative impact upon the Company which has not otherwise been accounted for in the purchase price or indemnities given by the Hennick Group to the Company’s satisfaction; (ii) approval of the TSX; (iii) approval of disinterested shareholders of the Company at a meeting called to, among other things, approve the Transaction; and (iv) receipt of the written consent of the “Majority Lenders” (being those lenders holding at least 51% of the total commitments under the Company’s credit agreement) and the “Required Holders” (being those holders holding at least 51% of the principal amount of the notes outstanding under the Company’s amended and restated note and guarantee agreement). The parties will use their commercially reasonable efforts to diligently take, or cause to be taken, all actions that are necessary, proper or advisable to satisfy or be able to satisfy these conditions of closing and to otherwise consummate and make effective the Transaction as promptly as practicable. |
| · | Before the closing of the Transaction, the Hennick Group will have the right to complete a pre-closing reorganization, subject to the Company’s consent, acting reasonably, and provided that such reorganization will not (i) materially impede, delay or prevent consummation of the Transaction, or (ii) materially prejudice or have material adverse consequences for the Company (taking into account any adjustment to the purchase price to satisfy any tax liabilities created as a result of any pre-closing reorganization). The Hennick Group will provide an indemnity for any liabilities that are created as a result of the pre-closing reorganization that are not otherwise reflected as an adjustment to the purchase price to the satisfaction of the Company. |
| · | The Transaction will close following satisfaction of the closing conditions, anticipated to be shortly following receipt of the approval of the disinterested shareholders. |
Once executed, this term sheet shall constitute a binding agreement of the parties. The parties shall negotiate in good faith to conclude and execute the Definitive Agreement contemplated by this term sheet no later than April 2, 2019, with each party using all reasonable efforts to complete before that date. If the parties fail to agree and execute a Definitive Agreement prior to April 2, 2019, this term sheet shall terminate and be of no further force or effect. This term sheet and the Definitive Agreement shall be subject to laws of Ontario.
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this binding term sheet on the 12th day of March, 2019.
| FIRSTSERVICE CORPORATION | ||||
| Per: | “ Michael Stein” | |||
| Name: | Michael Stein | |||
| Title: | Director/Chair of the Compensation Committee | |||
| HENSET CAPITAL INC. | ||||
| Per: | “Jay S. Hennick” | |||
| Name: | Jay S. Hennick | |||
| Title: | President and CEO | |||
| JAYSET CAPITAL CORP. | ||||
| Per: | “Jay S. Hennick” | |||
| Name: | Jay S. Hennick | |||
| Title: | President and Secretary | |||
| JAYSET MANAGEMENT FSV INC. | ||||
| Per: | “Jay S. Hennick” | |||
| Name: | Jay S. Hennick | |||
| Title: | President and CEO | |||
| “Jonathan Ng” | “Jay S. Hennick” | |||
| Witness: Jonathan Ng | Name: | Jay S. Hennick | ||