Canada: Capital Markets Report - June 2-13, 2014

FROM THE REGULATORS

News And Notices

OSC Affirms Importance of Reciprocal Order Power and Refuses to Stay Enforcement Proceeding Against Conrad Black
By: Wendy Berman and Alec Milne

The Ontario Securities Commission (the "OSC") has dismissed Conrad Black's request for a stay of the proceeding against him in which the OSC is seeking a reciprocal order based on the findings and convictions from criminal and regulatory proceedings in the US (the "US Proceedings"), rather than a full hearing process.

The OSC has affirmed the importance of its power to issue reciprocal orders as an effective tool to facilitate cross-jurisdictional enforcement of breaches of securities law and to enable the efficient administration of justice by eliminating duplicative proceedings based on similar evidence. Given the globalization of capital market activities, market participants should anticipate continued increased use of reciprocal proceedings and orders by Canadian securities regulators and consider the importance of a collaborative and coordinated cross-border defence strategy. Click here for more details.

CIM Adopts New Definition Standards

By: Sean Williamson

On May 10, 2014, the Canadian Institute of Mining, Metallurgy and Petroleum ("CIM") adopted an update to the CIM Definition Standards on Mineral Resources and Reserves. The CIM definitions are the standard by which all technical information regarding mining projects by Canadian issuers must be disclosed as they are incorporated by reference into National Instrument 43-101 – Standards of Disclosure for Mineral Projects ("NI 43-101"). The adoption of the new definitions follows the consideration of comments and feedback provided to CIM by stakeholders during the 90-day comment period that began in May 2013. The new version includes changes to maintain compatibility with NI 43-101, and addresses requests from industry participants and other stakeholders for clarification and guidance. For more information click here.

FROM THE COURTS

Fairness Opinions in Flux?
By: Greg Hogan

In March of this year, Justice Brown of the Ontario Superior Court of Justice issued a decision on a plan of arrangement under Ontario corporate law involving Champion Iron Mines Limited (the "Champion Decision") that was met with surprise by many in the legal community. Among other things, Justice Brown held that the fairness opinion rendered in that case was not admissible as "expert evidence" to assist the Court in determining whether the arrangement was "fair and reasonable" as it failed to meet the requirement of the rules of the civil procedure for expert evidence. In particular, while admitting that the form of fairness opinion filed by Champion "closely resembled the form of such opinions typically seen these days on plan of arrangement applications," Justice Brown pointed to the lack of reasons for the conclusions drawn that the arrangement was fair. It was, in his words, "devoid of analysis which a reader could follow in order to understand how the opinion was reached and what, if any weight should be given to the opinion" and that "from an evidentiary point of view, that renders [it] inadmissible for the purpose of asking the court to rely on their content in support of granting the application." The decision appeared to herald a new approach to fairness opinions for advisors and transaction counsel, at least in Ontario.

However, two recent decisions, each from different Justices, have rejected the approach of Justice Brown, possibly resulting in a continuance of the traditional approach, now with judicial support. In an endorsement dated June 5, 2014, Justice Wilton-Siegel approved a plan of arrangement under Ontario corporate law involving the acquisition of all of the outstanding common shares of Bear Lake Gold Ltd. by Kerr Lake Mines Inc. in exchange for securities of Kerr Lake. In applying the legal test for the approval of a plan of arrangement, Justice Wilton-Siegel referred to the Champion Decision and the commentary of Justice Brown on how fairness opinions are used in arrangement transactions, In his view, fairness opinions are "an indicia of a good faith transaction as well as of the fairness and reasonableness of the proposed transaction." Fairness opinions (a) are evidence that the special committee or board of directors has considered the proposed transaction on the basis of objective criteria (he notes that the presentation of the fairness opinion to the board or committee would contain the basis for the conclusions reached), and (b) allow shareholders to reach their own conclusions regarding the integrity of the directors' recommendations and the fairness, from a market perspective, of the transaction. He further stated that "[i]n circumstances involving the acquisition of securities of an issuer by a third party, an applicant for approval of a statutory arrangement does not intend, however, that the fairness opinion will constitute expert evidence." [emphasis added] Justice Wilton-Siegel saw no reason to depart from existing practice.

The day following the decision in Bear Lake, Justice Newbould provided further comments on fairness opinions in an endorsement dated June 6, 2014. The endorsement was in connection with an interim order in a plan of arrangement under federal corporate law involving the acquisition of all of the outstanding common shares of Royal Host Inc. by Holloway Lodging Corporation, in exchange for cash and securities. Justice Newbould also referred to the Champion Decision, but agreed with the approach and analysis in Bear Lake. Although he admits that the disposition of the matter will be ultimately be for the court hearing the application for the final order, he noted that the purpose of a fairness opinion is a commercial one. "It is an opinion to be considered by the board of directors and the shareholders in a commercial context. It is not an expert report in a litigation context. If the board or the shareholders are not satisfied with the report, they can vote with their feet and not proceed with or approve the arrangement."

While these more recent comments suggest that transaction counsel and financial advisors need not change their approach to fairness opinions, at least where the transaction is the acquisition of securities by a third party, it remains to be seen whether Justice Brown or other justices will follow the approach in Champion or the approach in Bear Lake, whether on contentious transactions counsel will feel more compelled to place a fairness opinion directly before the court to support the court's decision or whether transactions with other impacts on shareholder rights beyond a third party purchase may be treated in a different manner.

CBB KNOWLEDGE CENTRE

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

Drafting Tip Of The Month

The Attornment Clause - Exclusive or Non-Exclusive Jurisidiction?
By: Corporate Counsel Bulletin Board

One question you need to determine when drafting the attornment clause in an agreement is whether to attorn to the exclusive or the non-exclusive jurisdiction of the Ontario courts.

If you decide that you would prefer to resolve any disputes in an Ontario court, you still might want to consider making the jurisdiction of the Ontario courts non-exclusive.

Choosing non-exclusive jurisdiction allows you to seek remedies in courts outside Ontario. This might be advantageous in some cases. For example, if the agreement is breached by someone in B.C., an injunction to restrain that breach will be more easily enforced if the injunction is granted by a B.C. court. If it is granted by an Ontario court, you would need to take further action in B.C. to enforce the order there.

In some circumstances, such as where the legislation outside the province is less favourable to your interests, the advantage of avoiding litigation in another jurisdiction may outweigh the benefits of making the jurisdiction non-exclusive. However, an exclusive jurisdiction clause may not be enforceable.

Legal Phrase Of The Month

Secondary Offering
By: Andrew Spencer and Zohar Barzilai

A "secondary offering" is a prospectus-qualified offering of securities that have already been issued to the public. Secondary offerings are often completed by large shareholders in an attempt to diversify or monetize their holdings in a reporting issuer, and are not dilutive to existing shareholders as no new securities are issued. Typically, secondary offerings are required in Canada due to restrictions that can affect the ability of a 20% (or greater) shareholder to sell securities directly in the secondary market without a prospectus. When a secondary offering is completed on a bought-deal basis, the issuer and underwriting syndicate will prepare a prospectus in order for the selling shareholder to complete the distribution of their securities.

On March 26, 2014, Goldcorp Inc. completed a secondary offering of 31,151,200 common shares of Primero Mining Corp. for gross proceeds of approximately $224 million.

PUBLIC COMPANY ACTIVITY

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

Public Offerings

Launched June 2-13, 2014

Equity Offerings

Debt Offerings

Take-Over Bids

Upcoming Shareholder Meetings

• On June 25, 2014, the shareholders of Lago Dourado Minerals Ltd. will be asked to vote to approve a special resolution relating to what may constitute the sale of all or substantially all of the assets of the Lago Dourado.
• On June 26, 2014, the shareholders of West Cirque Resources Ltd. will be asked to vote to approve an arrangement pursuant to which Kaizen Discovery Inc. will acquire all of the issued and outstanding common shares of West Cirque Resources.
• On June 27, 2014, the shareholders of Waymar Resources Ltd. will be asked to vote to approve an arrangement pursuant to which Orosur Mining Inc. will acquire of all of the issued and outstanding common shares of the Waymar Resources.
• On June 30, 2014, the shareholders of Adanac Molybdenum Corporation will be asked to vote to approve the sale of substantially all of the assets of Adanac.
• On July 8, 2014, the shareholders of Torstar Corporation will be asked to vote to approve the sale of Harlequin Enterprises Limited, a subsidiary of Torstar, to a subsidiary of HarperCollins Publishers L.L.C.
• On July 8, 2014, the shareholders of PNI Digital Media Inc. will be asked to vote to approve an arrangement pursuant to which Staples Acquisition Canada ULC, a wholly-owned subsidiary of Staples, Inc., will acquire of all of the issued and outstanding common shares of PNI.
• On July 8, 2014, the shareholders of Eaglewood Energy Inc. will be asked to vote to approve an arrangement pursuant to which EEI Acquisition Ltd., a wholly-owned subsidiary of Transform Exploration Pty Ltd., will acquire all of the issued and outstanding common shares of Eaglewood.
• On July 8, 2014, the shareholders of Equal Energy Ltd. will be asked to vote to approve a plan of arrangement pursuant to which Petroflow Canada Acquisition Corp., a wholly-owned subsidiary of Petroflow Energy Corporation, will acquire all of the outstanding common shares of Equal Energy Ltd.
• On July 11, 2014, the shareholders of Darwin Resources Corp. will be asked to vote to approve an arrangement pursuant to which Tinka Resources Limited, pursuant to which Tinka will acquire of all of the outstanding common shares of the Darwin Resources.

Risk Factor Of The Month

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

Seinus Energy Inc.
By: Sean Williamson

For companies operating in politically unstable areas of the world, it is important to ensure that continuous disclosure documents adequately describe the risks that such instability poses to business operations. Often such disclosure is reduced to boiler plate language. In contrast, in its annual information form dated March 31, 2014, Serinus Energy Inc. included timely and current disclosure about the ongoing developments in Crimea between Ukraine and Russia in a risk factor that reads like a newspaper report from the time:

Political and Geopolitical Instability in Ukraine

In December 2013, the Ukrainian government pulled out of discussions with the EU regarding closer economic ties, and entered into an agreement with Russia. In exchange for a closer political and economic relationship, Russia would invest $15 billion in Ukrainian government bonds, and sell natural gas to Ukraine at a 30% discount to then current price of approximately $410 per thousand cubic metres. Street protests erupted shortly thereafter, and grew. The Ukrainian Parliament on February 22, 2014, voted to impeach the President, Victor Yanukovich who subsequently fled the country. The Parliament also appointed an interim President to serve until new elections are held, scheduled for May 25, 2014.

In response, Russia has stated that it does not recognize the new Ukrainian government, and started military exercises along the border between the two countries. It also increased its troop strength in the Crimean peninsula. Pro-Russian protests broke out in Crimea, and the regional government there has stated that it still recognizes Yanukovich as the country's president, and on March 11, adopted a declaration of independence, clearing the way for a referendum on independence to be held on March 16. On March 1, the Russian Parliament voted to approve the use of force to protect Russian citizens in Crimea. Russian President Vladimir Putin announced in a news conference on March 4 that Gazprom would end the discounted gas price effective April 1. The Crimean referendum on March 16 resulted in 97% of the electorate voting to join Russia, which was followed shortly by a treaty between the local Crimean government and Russia.

Europe, the United States and other countries have in turn offered financial assistance to Ukraine, as well as imposing sanctions on some former Ukrainian government officials. More measures are under consideration including among other things, the delay of talks with Russia with respect to the South Stream gas pipeline and possible economic sanctions against Russia itself. Both the United States and the European Union have imposed sanctions on senior Russian officials. Russia has responded with its own sanction list of certain American and Canadian officials.

It is impossible to predict how this situation will play out. Possible effects include, but are not limited to, continued depreciation of the Ukrainian Hryvnia vs. foreign currencies, inhibiting Ukraine's ability to pay for goods and services, a bifurcation of the country into two or more parts and in the worst cases, civil war or occupation by Russia. Kub-Gas' operations have mostly continued uninterrupted to date, but it a curtailment or shut down of operations could be among the consequences of increased unrest. In the event of a complete government collapse, it is possible that Kub-Gas' title to the Ukraine Licences could be lost.

WHAT WE'VE BEEN UP TO

Recent Transactions

We acted for Goldcorp Inc. in connection with an offering of unsecured notes in the aggregate principal amount of $1 billion. Goldcorp intends to use the proceeds of the offering for repayment of $862.5 million in convertible notes maturing in August 2014 and repayment of the amounts drawn down under its revolving credit facility in June 2014. Click here for more details.

We acted for GMP Securities L.P. and a syndicate of underwriters in connection with a bought deal secondary offering of common shares of North American Energy Partners Inc. for gross proceeds to the selling shareholders, HGI Funding LLC and Front Street Re (Cayman) Ltd, of approximately $60 million. 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.