Canada: Capital Markets Report - November 1-30, 2014

From the Regulators

Regulators Propose Significant Amendments to the Rights Offering Regime 

By: Justin Dick, Jessica Lee and Kyle Simpson

On November 27, 2014, the Canadian Securities Administrators published for comment proposed amendments (the "Proposed Amendments") aimed at streamlining the prospectus exemption for rights offerings by reporting issuers. The Proposed Amendments would update some of the requirements for rights offerings by way of prospectus and repeal the prospectus exemption for rights offerings by non-reporting issuers. The 90-day comment period is open until February 25, 2015.

Key features of the Proposed Amendments include:

• removing the current regulatory review process prior to use of the rights offering circular;
• introducing a more user-friendly form of rights offering circular document; and
• the addition of civil liability for secondary market disclosure.

The CSA hopes that the Proposed Amendments will bolster investor protection while decreasing the time and costs typically associated with conducting a rights offering - making rights offerings more attractive to reporting issuers.

New Ontario Prospectus Exemption for Offerings to Existing Security-holders 

By: Justin Dick, Jessica Lee and Kyle Simpson

On November 27, 2014 the Ontario Securities Commission ("OSC") announced amendments to OSC Rule 45-501 – Ontario Prospectus and Registration Exemptions, which provide for an exemption (the "Exemption") that will allow issuers to raise capital in Ontario from their existing security-holders without a prospectus. The Exemption largely resembles that which was adopted by other Canadian securities regulators in March 2014.

Key features of the Exemption include:

• issuers must have a class of equity securities listed on the TSX, TSXV, CSE or Aequitas NEO (when operational);
• offerings must be limited to only the class of listed securities or units consisting of the listed security and a warrant to acquire the listed security;
• dilution is capped at a maximum of 100%;
• investments are limited to a maximum of $15,000, unless the investor has obtained suitability advice from a registered investment dealer;
• the offered securities will be subject to the standard four-month hold period;
• offerings must be made available to all existing security-holders that hold the same type of listed security as of a record date at least one day prior to announcement of an offering; and
• offered securities need not be allocated pro rata among existing security-holders, but issuers are expected to provide reasonable assurance that investment opportunities will be fairly allocated and the exemption should not cause security-holders to suffer significant dilution.

Pending ministerial approval, the Exemption is expected to come into force on February 11, 2015

Two New Exchanges Recognized by the Ontario Securities Commission 

By: Justin Dick, Jessica Lee and Kyle Simpson

On November 13, 2014, each of Aequitas Innovations Inc. and Aequitas Neo Exchange Inc. was recognized as an exchange by the Ontario Securities Commission, effective March 1, 2015. The applications for recognition made by the applicants were originally published by the OSC on June 27, 2014, for a 60-day comment period, during which 60 comment letters were received.

The Aequitas NEO Exchange was formed to promote confidence by putting solutions in place to address the pressing market issues of fairness, liquidity and transparency impacting investor confidence. Specifically, it will have a "speed bump" intended to eliminate the speed advantage of high frequency traders, which will also be subject to higher fees than "longer term" investors.  Both equity and debt securities may be listed on the Aequitas NEO Exchange. Separate listing standards have been established for companies, exchange-traded funds, closed-end funds and structured products, to acknowledge the different nature and needs of issuers. The Aequitas NEO Exchange hopes to "go live" on March 13, 2015.

From the Courts

Supreme Court Expands Obligations of Good Faith and Honesty in Contract Performance

By: Tim Pinos, Ted Frankel, Colin Pendrith and Chris Selby

In Bhasin v. Hrynew ("Bhasin"), a decision released on November 13, 2014, the Supreme Court of Canada (the "Court") significantly changed contract law in Canada by expanding the reach of good faith as a source of contract obligations. Specifically, the Court held that the "organizing principle" of good faith in contract law gave rise to a specific duty of honesty in contractual performance that generally applied to contracts, including commercial contracts.

Good Faith and the "Duty of Honest Performance"

The Court found that an obligation of good faith in contractual performance is a general organizing principle, which underpins the various common law rules which apply specifically in "various situations and types of relationships." The obligation of good faith requires that parties "perform their contractual duties honestly and reasonably and not capriciously or arbitrarily."

The "duty of honest performance" exists so that a party to a contract can "rely on a minimum standard of honesty from their contracting partner in relation to performing the contract," wrote Justice Cromwell for a unanimous Court.

Please click here for the full article.<

CBB Knowledge Centre

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

Legaleasy

Compulsory Acquisition

By: Samantha Prest

"On August 9th, 2013, New Gold Inc. acquired approximately 97.5% of the outstanding shares of Rainy River Resources through a friendly take-over bid. Subsequently on October 16th, 2013, New Gold acquired the remaining 2.5% of the outstanding shares of Rainy River by way of compulsory acquisition under the Business Corporations Act (British Columbia)."

A "compulsory acquisition" is a type of second step transaction that follows a take-over bid that does not result in 100% of the target shares being tendered to the bid. A compulsory acquisition is a method of achieving 100% ownership of a company, if within 120 days of the launch of the take-over bid the bidder obtained at least 90% of the target shares that it did not already own. If a bidder finds itself holding less than 100% but has otherwise achieved this 90% threshold, the bidder may invoke the compulsory acquisition provisions under federal and provincial corporate statutes and 'force' the remaining shareholders in the target to sell their shares to the bidder at the offer price by sending written notice to the non-tendering shareholders within a short period of time following the end of the bid or the 120 day period referred to above. A bidder that invokes this right by sending notice is required to make payment to the non-tendering shareholders.  However, shareholders are entitled to dissent to the price to be paid and require a court to fix the fair value of their shares.

Drafting Tip of the Month

Binding Effect (Enurement) and Assignment Provisions

By: Corporate Counsel Bulletin Board

The purpose of a binding effect (or enurement) provision is to provide for the continuation, from one party to another, of all of the rights and liabilities contained in an agreement and to bind the substituted party to that agreement. An assignment provision may restrict a party's right to assign the agreement (and, therefore, its rights under that agreement) to a third party.

In a blog posting, Professor Ken Adams, a leading American authority on contract drafting, suggested that it's time to get rid of the binding effect provision. Among other reasons for doing so, he cautioned that a court might look to it for guidance on the ability of a party to assign its rights and liabilities under an agreement. In a recent decision, the Ontario Court of Appeal held that the inclusion of a binding effect provision "clearly demonstrated" that the parties intended that there would be successors to the agreement and that those successors were entitled to enforce the agreement without an express assignment.

Therefore, if your agreement contains either or both of these "boilerplate" provisions, we recommend the following:

• Ensure that the intentions of the parties are clear regarding the following: 
   
  • What rights and liabilities are to be assigned or continued?
  • To whom should the rights and liabilities flow? For example, the exclusion of the binding effect provision may result in the unintended application of the common law doctrine of privity.
  • Are there any conditions precedent upon which either the rights or liabilities flow?
• Ensure that there are no inconsistencies between the provisions. For example, if your agreement contains a restrictive assignment provision, then the binding effect provision should only refer to the assignees permitted by that provision (that is, the "permitted" assigns).

Public Company Activity

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

Public Offerings - Launched October 1-30, 2014

Equity Offerings

Initial Public Offerings

Non-Offering Prospectuses

Bought Deals

Marketed Deals

Debt Offerings

Bought Deals

Debt Offerings

Marketed Deals

Risk Factor of the Month

Our focus on risk factors is intended to highlight the ways in which issuers are discussing specific material risks to their business rather than relying on market standards or boilerplate.

Momo Inc. IPO of American Depositary Shares Representing Class A Shares – Preliminary Registration Statements (Amended) Filed Nov. 28, 2014 – Form F1/A

By: Myroslav Chwaluk and Chad Aboud

Momo is a revolutionary mobile-based social networking platform. We enable users to establish and expand social relationships based on location and interests. Our platform includes our Momo mobile application and a variety of related features, functionalities, tools and services that we provide to users, customers and platform partners. We have established Momo as one of China's leading mobile social networking platforms in less than three years since our inception.

Our business is dependent on the strength of our brand and market perception of our brand.

In China, we market our services under the brand [Chinese character] or "Momo." Our business and financial performance are highly dependent on the strength and the market perception of our brand and services. A well-recognized brand is critical to increasing our user base and, in turn, facilitating our efforts to monetize our services and enhancing our attractiveness to customers. From time to time, we conduct marketing activities across various media to enhance our brand and to guide public perception of our brand and services. In order to create and maintain brand awareness and brand loyalty, to influence public perception and to retain existing and attract new mobile users, customers and platform partners, we may need to substantially increase our marketing expenditures. We cannot assure you, however, that these activities will be successful or that we will be able to achieve the brand promotion effect we expect.

In addition, people may not understand the value of our platform, and there may be a misperception that Momo is used solely as a tool to randomly meet or date strangers. Convincing potential new users, customers and platform partners of the value of our services is critical to increasing the number of our users, customers and platform partners and to the success of our business.

What We've Been Up To

Recent Transactions

We acted for Sarama Resources Ltd. in its entering into of an earn-in agreement with Acacia Mining Plc (formerly known as African Barrick Gold Plc) relating to Sarama's South Houndé Project in Burkina Faso. Pursuant to the earn-in agreement, Acacia may earn up to a 70% interest in the Project by paying Sarama US$1 million plus US$14 million in earn-in payments staged over a four year earn-in period and a further 5% upon estimating a minimum mineral reserve of at least 1.6 million ounces of gold in accordance with National Instrument 43-101. Click here for more details.

We acted for Contrans Group Inc. in its acquisition by TransForce Inc. Click here for more details.

We acted for True North Commercial Real Estate Investment Trust in its acquisition of 11 office properties (the "Acquisitions") in three separate transactions from arm's length vendors for an aggregate purchase price of approximately $83.4 million. The purchase price will be satisfied by a combination of various funding sources including, among others, a public offering of 4,440,000 units for gross proceeds of approximately $27.3 million, the issuance to certain vendors of Class B LP Units of True North, the assumption of existing mortgage debt, new mortgage financing, and the issuance of a promissory note to a vendor. Mr. Daniel Drimmer, the REIT's President, Chief Executive Officer and Chairman of the Board, through D.D. Acquisitions Partnership, an entity controlled by Mr. Drimmer, intends to subscribe for 151,515 units in a non-brokered private placement basis concurrent with the public offering. The proceeds from the concurrent private placement are expected to be utilized by the REIT to finance a portion of the cash component of the purchase price for the Acquisitions. Click here for more details.

We acted for Allied Nevada Gold Corp. in its public offering of common shares and warrants for gross proceeds of US$21,750,000. The Offering was conducted in the United States by means of a prospectus supplement and an accompanying prospectus filed as part of an effective shelf registration statement filed with the Securities and Exchange Commission. Click here for more details.

We acted for Lake Shore Gold Corp. in its private placement of 12,900,000 flow-through common shares on a bought deal basis for gross proceeds of $15,093,000. The gross proceeds of the Offering will be used for general exploration expenditures, including investment to follow up on recent encouraging drill results at the Company's 144 Target Area, including the 144 Gap Zone. Click here for more details.

We acted for Eagle Graphite Corporation ("EGC") in its reverse take-over of Amerix Precious Metals Corporation by way of a three cornered amalgamation with a wholly-owned subsidiary of Amerix. The resulting issuer from the RTO is named "Eagle Graphite Incorporated" ("Eagle"). In connection with the RTO, EGC and Amerix each completed private placements for gross proceeds of $1,765,000 of units and $1,103,000 of flow-through shares. All of the securities of EGC were exchanged on a one-for-one basis for securities of Eagle. The net proceeds of the private placements are anticipated to be used for ongoing exploration and development of Eagle's Black Crystal graphite project and for working capital and general corporate purposes. Click here for more details.

We acted for The Intertain Group Limited in its acquisition of the entire issued share capital of Dumarca Holdings PLC, the Malta-based parent company of the Vera&John group, a leading, fully-integrated online casino, active in 11 countries. As consideration for the Dumarca shares, Intertain made an initial payment of €44.5 million in cash, exclusive of working capital adjustments, and approximately 5.0 million common shares of Intertain. Click here for more details.

We acted for a syndicate of underwriters led by National Bank Financial Inc. and including CIBC World Markets Inc., Beacon Securities Limited, Canaccord Genuity Corp., Cormark Securities Inc., GMP Securities L.P. and Mackie Research Capital Corporation, in GuestLogix Inc.'s public offering of 20,000,000 subscription receipts and 7.00% extendible convertible unsecured subordinated debentures, and a concurrent private placement of 10,479,000 additional subscription receipts, for gross proceeds of approximately $49 million. Guestlogix used the net proceeds to fund its acquisition of OpenJaw Technologies Limited, a Dublin-based travel technology firm. Click here for more details.

Accolades

Cassels Brock Recognized in 2015 edition of Legal 500 Canada

Cassels Brock is proud to have been recognized for its expertise in the 2015 edition of Legal 500 Canada. The firm was ranked as a leader in 15 practice areas and received special distinction as a "top tier" firm in Mining.

In addition, over 30 members of the team at Cassels Brock were recommended in their fields with Mark Bennett, John Craig, Jay Goldman and Paul Stein each being honoured as elite "Leading Lawyers" in the mining arena by the publication.

Please click here for more details.

Cassels Brock Partners, Shane Hardy and Eva Bellissimo, Named 2014 Lexpert Rising Stars

Lexpert's 2014 "Rising Stars: Leading Lawyers Under 40" gala ceremony was held November 20, 2014, at the Fairmont Royal York in downtown Toronto. Cassels Brock is proud to announce that Shane Hardy and Eva Bellissimo were honoured as recipients.

Shane was acknowledged for his work as a leading IP lawyer providing advice to some of the world's most recognized brands as well as his work on the acquisition of high value brands – a growing trend in his practice. In the first half of 2014, Shane led a team of lawyers in four such transactions including a $198 million acquisition of a premium Canadian whiskey maker. To learn more about Shane, watch his Lexpert video interview here.

Eva was recognized for her exceptional legal abilities in both M&A and Corporate Finance, and her ability to expertly guide clients through complex and multifaceted transactions. She was also acknowledged for her substantial contributions to initiatives focused on the development, retention and advancement of our associates. To learn more about Eva, watch her Lexpert video interview here.

Media Mention

Mark Bennett Looks at Stream Financing in Lexpert magazine 

"Streaming transactions are filling the financing gap and raising confidence in rough mining sector," writes Ahmad Hathout in Lexpert magazine's article "Lundin Deal Highlights Prominence of Stream Financing in Rough Mining Market" which highlights the financing aspect of Lundin's $1.9 billion purchase of the Freeport-McMoRan copper mine in Chile.

Cassels Brock partner Mark Bennett - who worked on the deal - is quoted in the article, saying that this structure has much to do with creativity. "If you look at mining now, the creativity on the side of having the sale of the non-core piece of the asset, which was the metal stream, bridged the gap in between what you could do in equity and what you could do with debt ... so you kind of kill two birds with one stone: you bridge the gap between equity and debt and you get full value for part of the asset that is non-core to your business."

For the full article, please click here.

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.