Canada: Capital Markets Report - October 16-31, 2014

FROM THE REGULATORS

Changes to Exempt Market Dealer Registration Requirements on the Horizon

By: Alexis Bowie, Anita Kim, Jamie Litchen and Joel McElravy

The Canadian Securities Administrators ("CSA") and the Ontario Securities Commission have announced proposed changes to the exempt market dealer ("EMD") registration requirements that are expected to make it tougher to register as an EMD.

The CSA has recently announced that, effective January 11, 2015, chief compliance officers for EMDs will now have to satisfy certain experience requirements before registration will be granted. In addition, Ontario is seeking to require that EMD applicants answer questions regarding their business models and policies and procedures manual, and provide their answers either in written form or by way of an in-person interview.

Prospective chief compliance officers and EMDs should carefully assess the effect of these proposed changes on their registration process. For further information, please click here to access further analysis by Brian Koscak and Peter Dunne of our Registration and Compliance group.

IIROC Announces Selection of Final Academic Team to Study Impact of High Frequency Trading

By: Alexis Bowie, Anita Kim, Jamie Litchen and Joel McElravy

In late October, the Investment Industry Regulatory Organization of Canada ("IIROC") announced the selection of a fourth and final academic team to study the impact of high-frequency trading ("HFT") and related activity on Canadian equity markets.

This final academic team will join the final phase of IIROC's ongoing study into HFT and will examine the impact of Canada's rules relating to the trading in dark pools, which currently allow traders to enter orders without pre-trade transparency, introduced in October 2012, together with liquidity provision and market making by high frequency traders.

IIROC expects that the results of the first three project teams of the final phase will be published by the end of 2014, with the fourth team's results published by June 2015. Further information available on the final phase of IIROC's HFT study is available here, with the results of the first two phases available here.

Government of Canada Announces Transparency Initiatives in the Extractive Sector

By: Alexis Bowie, Anita Kim, Jamie Litchen and Joel McElravy

On October 23, 2014, the Federal Government of Canada introduced Bill C-43, which included the Extractive Sector Transparency Measures Act ("the Act"). The Act will require disclosure by entities in the extractive sector of payments made to government entities through a number of new annual reporting requirements.

Entities subject to the Act will be required to annually report monetary or in-kind payments made to any domestic or foreign government in relation to the commercial development of oil, gas or minerals, although, payments made to Aboriginal governments in Canada will not be subject to the Act until two years after the legislation comes into force. The Government intends to bring the Act into effect by April 1, 2015.

For further information on the nature and implications of the Act, please click here to access further analysis by Jay King, Michael Brown, and Joyce Lim of our Mining and Securities groups.

Ontario Securities Commission Releases "Topical Guide for Registrants"

By: Jessica Lee

On October 27, 2014, the OSC launched a "Topical Guide for Registrants", a new online tool developed by OSC staff that allows registrants to search for and access OSC registration and compliance related information by subject matter area. The guide is intended to be the main comprehensive source for OSC and CSA guidance on current initiatives, to enhance communication between the OSC and registrants and to assist registrants with maintaining effective compliance systems. The guide references a number of documents, including:

• OSC Annual Summary Reports for Dealers, Advisers and Investment Fund Managers;
• OSC and CSA Staff Notices, such as guidance on know-your-client, know-your-product and suitability obligations; and
• Companion Policies to NI 31-103 Registration Requirements and NI 33-109 Registration Information Requirements.

Alberta Securities Commission Seeks Leave to Appeal Illegal Insider Trading case to the Supreme Court of Canada

By: Jessica Lee

On October 27, 2014, the Alberta Securities Commission announced that it has applied to the Supreme Court of Canada for leave to appeal a recent decision of the Alberta Court of Appeal, Walton v. Alberta (Securities Commission). Specifically, the ASC is seeking the SCC's guidance on the standard of proof and evidence required to prove allegations of illegal insider trading and the basis for determining sanctions that may be imposed on persons found to have engaged in such conduct.

On February 11, 2013, the ASC concluded that certain individuals had illegally traded in securities or had "tipped" information to others. On August 29, 2014, the Alberta Court of Appeal allowed the appeals of three individuals and the sanctions against them were set aside. The Court of Appeal, however, upheld certain findings with respect to two other individuals, but directed the ASC to reconsider its sanctions against them.

Relief Order of the Month

Foreign Spin-Off Transaction: In the Matter of Kimberly-Clark Corporation, (2014) OSCB 9210

By: Greg Hogan

A spin-off transaction involving a non-reporting subsidiary that is structured as a dividend does not fit into an available exemption. US registration, disclosure and rights and remedies being provided to Canadians sufficient to permit distribution without a prospectus.

Kimberly-Clark is a Delaware corporation primarily known for its Kleenex and Huggies brands. It is listed on the New York Stock Exchange but not on any Canadian stock exchange, nor does it report in Canada. Approximately 0.63% of its registered shareholders worldwide, holding approximately 230,364 shares, representing approximately 0.06% of the outstanding shares, were located in Canada. In addition Canadians represented approximately 21,000 beneficial shareholders (approximately 3.55% of the shareholders worldwide) holding approximately 6,583,963 shares (approximately 1.76% of the outstanding shares).

Kimberly–Clark was spinning-off its health care business (the "Spin-Off") through a distribution by way of dividend of the shares of a new subsidiary ("Spinco"). Shareholders were not required to pay any consideration, or to surrender or exchange Kimberly-Clark shares or take any other action to be entitled to receive their Spinco shares. The Spin-Off would occur automatically and without any investment decision. No shareholder approval was being sought. Spinco was listing its shares on the NYSE, filing a registration statement for the shares with the SEC and delivering an information statement to Kimberly-Clark shareholders, which statement would contain prospectus level disclosure about Spinco. Canadian shareholders who received Spinco shares would have the same rights and remedies in respect of the disclosure documentation as shareholders in the United States and would receive all the same continuous disclosure documents. On that basis, the Spinco shares were permitted to be distributed on a prospectus exempt basis, with first trades being permitted on the terms in subsection 2.14(1) of National Instrument 45-102 - Resale of Securities, being essentially sales outside of Canada. If Spinco ever became a reporting issuer, first trades would be permitted following the end of its "seasoning" period.

CBB KNOWLEDGE CENTRE

Tips and guidelines to assist our clients in understanding the law and becoming better drafters.

Disclosure Tip of the Month

Disclosure and Filing of Material Contracts

By: Jennifer Poirier

Issuers are reminded of their obligations to file material contracts in accordance with Canadian securities laws. Specifically, pursuant to National Instrument 51-102 – Continuous Disclosure Obligations ("NI 51-102"), issuers are required to publicly file Material Contracts on SEDAR that were entered into within the last financial year, as well as those entered into before the last financial year that are still in effect. "Material Contracts" are defined in NI 51-102 as "any contract that an issuer or any of its subsidiaries is a party to, that is material to the issuer."

Contracts that were entered into in the ordinary course of business are not required to be filed, unless they are: (i) contracts to which directors, officers or promoters are parties (other than contracts of employment); (ii) continuing contracts to sell the majority of the issuer's products or services or to purchase the majority of the issuer's required goods, services or raw materials; (iii) franchise or license or other agreements to use a patent, formula, trade secret, process or trade name; (iv) financing or credit agreements with terms that have a direct correlation with anticipated cash distributions; (v) external management or administration agreements; or (vi) contracts on which the issuer's business is substantially dependent.

Certain provisions of Material Contracts filed pursuant to NI 51-102 may be omitted or redacted, if an executive officer of the issuer reasonably believes disclosure of that information would seriously prejudice the interests of the issuer, or would violate confidentiality provisions. However, NI 51-102 prohibits certain provisions from being omitted or redacted, such as: debt covenants in financing and credit agreements; events of default or termination; or any other terms that are necessary to understand the impact of the Material Contract on the issuer's business. If a provision is omitted or redacted, a description of the type of information that has been so omitted or redacted must be provided immediately after the omitted or redacted provision in the filed copy of the Material Contract.

Material Contracts must be filed no later than the date a material change report is filed, if the making of the Material Contract is a material change for the issuer. Otherwise, issuers listed on the Toronto Stock Exchange (and any other reporting issuers, other than venture issuers) must file their Material Contracts no later than the time they file their Annual Information Form, if the Material Contract was made or adopted before the date of such Annual Information Form. For venture issuers (such as those listed on the TSX Venture Exchange), Material Contracts must be filed within 120 days after the end of the issuer's most recently completed financial year, if the Material Contract was made or adopted before the end of such year.

PUBLIC COMPANY ACTIVITY

Information and intelligence about what public companies are doing in the market.

Public Offerings - Launched October 16-31, 2014

Equity Offerings

Initial Public Offerings

Non-Offering Prospectuses

Bought Deals

Marketed Deals

Rights Offerings

Debt Offerings

Marketed Deals

WHAT WE'RE READING

Essay: Making it Easier for Directors to "Do the Right Thing"? (Harvard Business Law Review)

By: Joel McElravy

The role of the board of directors in managing the business and affairs of the corporation has often been the subject of lively debate. For many, the duty of the board is simply to make decisions that maximize shareholder wealth. Others argue that the duties of managers ought to extend beyond that of stockholders, and should consider other stakeholders such as consumers, communities, and the environment. However, few proponents advocating for managers to 'do the right thing' have offered any practical solutions that incentivize those in power to consider interests outside of profit.

In his essay "Making it Easier for Directors to 'Do the Right Thing'?", Chief Justice of the Delaware Supreme Court, Leo E. Strine, Jr. explores the use of "benefit corporation" statutes in the United States as a mechanism for creating changes in accountability and imposing a mandatory, enforceable duty on directors to account for interests beyond those of shareholders. At the same time, Chief Justice Strine acknowledges that several salient questions remain that cast uncertainty as to whether this initiative will have its desired, long-term effect. Specifically, the first wave of entrepreneurs of such entities must demonstrate an observable commitment to socially responsible corporate behaviour. Similarly, benefit corporations must ensure that accounting for these interests allows themselves to remain profitable.

While his essay deals primarily with US corporate law, with Canada's consideration of hybrid corporate models going beyond the traditional for-profit corporation, Chief Justice Strine's comments provide an insightful read for those interested in taking lessons and context from the US experience.

The full article is available here.

Article: Dealing with Activist Hedge Funds (Harvard Law School Forum on Corporate Governance and Financial Regulation)

By: Joel McElravy

The rising trend of activist shareholder activity continued in 2014 with nearly 250 campaigns to date in the U.S. With over $200 billion in assets under management, activist hedge funds based in the U.S. are a considerable force within the activist space. In his article "Dealing with Activist Hedge Funds", éminence grise Martin Lipton proposes several best practices to follow in order to prepare for and respond to an activist attack.

Given the diversity of recent targets of all sizes and in a variety of industries, Lipton recommends vulnerable (or wary) companies assemble a hedge fund activism team, and emphasizes the importance of consistency with the company's basic strategic message. Of similar importance is maintaining a unified board of directors on key business issues, as activist hedge funds often attempt to divide boards by raising doubts on strategy and management performance. Lipton also addresses the recommended approach in responding to both public and non-public communication.

While there are many notes and articles circulating about preparing for activist shareholders, Lipton's article is relatively short and worth a read for those interested in insight from a leading US practitioner.

The full article is available here.

WHAT WE'VE BEEN UP TO

Recent Transactions

We acted for Wellgreen Platinum Ltd. in its private placement offering of 15,118,104 common shares on a "flow-through" basis for gross proceeds of approximately $9.1 million. The net proceeds of the Private Placement will be applied towards continuing exploration and development activities as part of initiating planned pre-feasibility level studies on Wellgreen's 100%-owned Wellgreen PGM-Nickel-Copper property located in the Yukon. Click here for more details.

We acted for a syndicate of underwriters co-led by Cormark Securities Inc., GMP Securities L.P. and Canaccord Genuity Corp. in AGT Food and Ingredients Inc.'s public offering of 2,858,000 common shares for gross proceeds of approximately $80 million. The net proceeds of the offering will be used by AGT to pay down outstanding amounts under its operating credit, revolving credit, and short term facilities. Click here for more details.

We are acting for New Gold Inc. in its acquisition of Bayfield Ventures Corp. Pursuant to a plan of arrangement, New Gold will acquire 100% of the outstanding and issued common shares of Bayfield in exchange for 0.0477 of a New Gold common shares for each Bayfield common share held. Bayfield's assets include a 100% interest in three mineral properties, totalling 10 square kilometres, located adjacent to New Gold's Rainy River project in northwestern Ontario. Click here for more details.

We acted for Clarus Securities Inc. and PI Financial Corp. in Pure Natures Wellness Inc.'s (carrying on business as "Aphria") equity private placement financing of 11,500,000 subscription receipts for gross proceeds of approximately $12 million. It is anticipated that Aphria will amalgamate with a wholly-owned subsidiary of Black Sparrow Capital Corp. to become a wholly-owned subsidiary of Black Sparrow (the "Business Combination"). Upon completion of the Business Combination, Black Sparrow will remain as the resulting issuer and it is proposed that the Business Combination will constitute the Qualifying Transaction of Black Sparrow under the policies of the TSX Venture Exchange. The net proceeds will be used by the resulting issuer for future capital expenditures and for general corporate and working capital purposes upon completion of the Business Combination. Click here for more details.

We acted for Horizonte Minerals Plc in its public offering of 50,000,000 ordinary shares for gross proceeds of $5,500,000. On August 4, 2014, Horizonte closed a concurrent private placement offering in the United Kingdom of 41,287,608 ordinary shares for gross proceeds of £2,477,256.48. Total gross proceeds of the prospectus offering and the concurrent private placement were approximately C$10 million. The net proceeds of the offerings will be used by Horizonte to fund a feasibility study on its Araguaia nickel project in Brazil. Click here for more details.

We acted for a syndicate of underwriters led by Dundee Securities Ltd. in Talon Metals Corp.'s bought deal private placement offering of 14,755,450 units for aggregate gross proceeds of $4 million. Talon intends to use the net proceeds of the offering to meet its funding commitments in respect of the Tamarack Nickel-Copper-Platinum Project in Minnesota, U.S. and for general working capital purposes. Click here for more details.

We acted for Roxgold Inc. in its bought deal financing of 46.2 million units of Roxgold for gross proceeds of approximately $30 million. The net proceeds from the offering will be used to advance the development of Roxgold's Yaramoko Gold Project and for general corporate purposes. Click here for more details.

We acted for a syndicate of agents led by CIBC World Markets Inc. in FortisBC Inc.'s $200 million principal amount medium term note debentures, with a coupon rate of 4.00% and maturing on October 28, 2044. Click here for more details.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.