Canada: Capital Markets Report - June 16-30, 2014

FROM THE REGULATORS

Decisions

Canadian Securities Regulator Upholds Poison Pill: Shareholder Approval Buys Target Five Month Breather from Hostile Bid

By: Wendy Berman and Jonathan Wansbrough

The British Columbia Securities Commission ("BCSC") recently departed from past practice by permitting Augusta Resource Corporation's ("Augusta") shareholder rights plan or poison pill (the "SRP") to remain in effect for up to 156 days, in the face of a hostile take-over bid made by HudBay Minerals Inc. ("HudBay"). A defining feature of this case was that an absolute majority of shareholders of Augusta voted to maintain the SRP during the currency of HudBay's bid, with full knowledge that the bid may be impeded. The BCSC's decision places significant weight on informed shareholder support for a rights plan implemented in the face of a specific bid, while professing that this factor is not, in and of itself, determinative.

For a detailed analysis of this decision, please click here.

News and Notices

Saskatchewan and New Brunswick Agree to Join the National Securities Regulator Initiative

By: Greg Hogan

The provincial Ministers responsible for securities regulation in Saskatchewan and New Brunswick agreed on July 9, 2014, to join the British Columbia, Ontario and the federal government to establish a Cooperative Capital Markets Regulatory System. This builds on the September 19, 2013, agreement in principle between the Governments of British Columbia, Ontario and Canada and includes the following key changes:

• There will be two additional regional Deputy Chief Regulators representing capital markets jurisdictions in each of western and eastern Canada. These would be in addition to the Deputy Chief Regulators based in each of British Columbia and Ontario, as well as Alberta and Quebec should they choose to participate.
• The Deputy Chief Regulators representing capital markets jurisdictions in western and eastern Canada will be initially located in Saskatchewan and New Brunswick and will serve a term of five years.
• The nominating committees for the expert board of directors and independent adjudicative tribunal will include representation from both major and other participating jurisdictions.
• Each regulatory office will be managed by a director who will coordinate the delivery of regulatory functions that are responsive to the needs of local market participants and investors, and will identify local issues for their respective Deputy Chief Regulator's consideration in the development and application of national policies.
• Fundamental changes to the Cooperative System will require unanimous approval of the Council of Ministers during the three year period after the date on which the Capital Markets Regulatory Authority commences operations, and approval of at least two-thirds of the Council of Ministers and all major capital markets jurisdictions thereafter.
• A transition plan will be developed based on consistent principles to integrate existing securities regulatory entities into the Capital Markets Regulatory Authority.
• The regulator will consider requests to accommodate provincial economic development initiatives, where they do not adversely affect the fundamental principles of the Cooperative System or affect markets participants in other jurisdictions

OSC Releases its 2014-2015 Statement of Priorities

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

The Ontario Securities Commission ("OSC") has released its statement of priorities for the 2014-2015 fiscal year. The statement of priorities identifies the areas in which the OSC will focus its regulatory activities over the course of the year.

The OSC's five regulatory goals for its 2014-2015 fiscal year are: (i) investor protection, (ii) responsive regulation, (iii) effective enforcement and compliance, (iv) promoting financial stability, and (v) organization efficiency and accountability. These goals are in turn comprised of 12 priorities.

Among the priorities the OSC has identified in the area of responsive regulation, the following are of particular note:

• Capital Raising Prospectus Exemptions: The OSC will seek to complete its review of the proposed offering memorandum, crowd funding, existing security holder, and family, friends and business associates exemptions (further details available here and here), and to develop and publish rules to implement them. The OSC will also look to improve the efficiency and effectiveness of the existing rights-offering exemption.
• Corporate Governance – Women on Boards: The OSC has proposed regulatory changes that would mandate disclosure relating to the representation of women in senior management roles and on boards of directors. Over the coming year the OSC will consider feedback received on its proposals and publish proposed rules to implement such disclosure (further details are available here and here).
• Review of Proxy Voting System: The OSC has been conducting a review of the proxy voting system and infrastructure in response to concerns raised about its independence and potential for conflicts of interest. Over the 2014-2015 fiscal year, the OSC will seek to publish a progress report on this review, along with preliminary recommendations, and review the feedback received in connection with a related comment letter process and roundtable.

The OSC's full statement of priorities can be viewed here.

BCSC Releases Report on Private Placement Market

By: Joyce Lim

From 2010 to 2013, companies reported that they raised $45 billion in British Columbia's private placement market in contrast to the $25 billion that was raised in the public market. In response to the increasing amount of money that has been raised in the province's private placement market, and in an effort to strengthen oversight in this area, the British Columbia Securities Commission ("BCSC") established the Private Placement Review Program ("PPRP") in April 2010. The PPRP focuses on private companies that access the private placement market using exemptions that require them to file exempt distribution reports with the BCSC. The exemptions used include the offering memorandum exemption, family, friends and business associates exemption and the accredited investor exemption.

The objectives of the PPRP are to (i) raise awareness amongst market participants that the BCSC is monitoring the private placement market, (ii) confirm compliance with securities rules, and (iii) improve the quality of the disclosure that investors receive before any investment decisions are made. To achieve these objectives, the PPRP comprise the following four functions:

1. Monitor Private Placements – BCSC staff has developed a method for reviewing each incoming exempt distribution report to identify high-risk companies that may warrant an in-depth review. In January 2014, the BCSC launched a private company risk model which uses data from all exempt distribution reports filed since January 2011 and that analyzes each new exempt distribution report using a set of 38 risk indicators to identify high-risk companies. The risk indicators include (i) the amount of money raised and the number of investors, (ii) the exemptions used, (iii) past BCSC interactions with the issuer, (iv) details about the issuer's directors and officers, and (v) details about the issuer's finders and promoters.
2. Review Private Companies – BCSC staff reviews offering memorandums to ensure that they include the required information and do not contain false or misleading information. Staff also determines if the company is interpreting and applying the exemptions correctly, such as the family, friends and business associates exemption and the accredited investor exemption, and whether there is any indication that the company is providing investors with false or misleading information.
3. Enforcement of Securities Rules – Depending on the severity of the misconduct uncovered, staff may (i) issue a cease trade order to prevent further trading in the securities until the company has corrected the deficiency, (ii) if the offering memorandum used to raise money is false or misleading, require the company to provide investors with a new offering memorandum and provide investors with an opportunity to rescind their investments, or (iii) refer the matter to Enforcement, if stronger sanctions are warranted.
4. Educate Private Companies – Proceeding on the assumption that most non-compliance is unintended, BCSC staff routinely brings matters to the attention of a company to improve its disclosure. In this regard, Staff has developed the Capital Raising for Small Business Program which aims to reach entrepreneurs who are in the early stages of building a business and who could unintentionally run afoul of capital raising rules.

For more information regarding the PPRP, please click here to access the full report.

New Regulations

Increasing Participation of Women on Boards and in Senior Management – Consolidation of Efforts Regarding Proposed Amendments to Form 58-101F1

By: Joyce Lim

The Canadian Securities Administrators in Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Newfoundland and Labrador, Northwest Territories and Nunavut are publishing for a 60-day comment period proposed amendments (the "Proposed Amendments") to Form 58-101F1 Corporate Governance Disclosure of National Instrument 58-101 Disclosure of Corporate Governance Practices, which relate to the disclosure of representation of women on corporate boards and in senior management. The Proposed Amendments were previously published for comment by the OSC on January 16, 2014 for a 90-day period ending on April 16, 2014. The comments received by the OSC are available here. To recap, the Proposed Amendments would require disclosure for the following matters regarding gender representation on boards and in senior management using a "comply or explain" approach:

1. Director term limits;
2. Adoption of policies regarding representation of women;
3. Consideration of representation of women in the director identification and selection process;
4. Consideration of representation of women in senior management;
5. Adoption of targets regarding the representation of women on boards and in senior management; and
6. Number of women on boards and in senior management.

The proposed amendments are in line with federal efforts to promote the participation of women on Canadian public and private corporate boards. In a report prepared in June 2014 by the Advisory Council for Promoting Women on Boards, which was established in April 2013, the Advisory Council recommends that the Government of Canada, among other things:

1. Promote increased representation of women on boards by mobilizing and working with key stakeholders, including prominent Chairs, Financial Post (FP) 500 companies,national business associations, shareholder groups and advocacy organizations;
2. Develop a coordinated pan-Canadian approach by working with provincial and territorial governments;
3. Launch a national initiative to encourage the private sector to attain gender-balanced boards; and
4. Encourage private companies to emulate publicly traded companies and undertake similar measures to increase representation of women on boards.

For further details regarding the recommendations made by the Advisory Council, please click here.

Relief Order of the Month

Relief Application of Note

By: Greg Hogan

Offshore Resale Relief: In the Matter of Irish Residential Properties REIT Limited and Canadian Apartment Properties Real Estate Investment Trust

Securities laws provide an exemption for offshore resales of securities placed by non-reporting issuers into Canada, provided that Canadians constitute 10% or less of the beneficial holders of the class of securities and beneficially own 10% or less of the outstanding securities of the class of securities. Without that exemption, arguably, securities placed by non-reporting issuers are subject to resale restrictions for an indefinite period, even if there is an active, public market in a foreign jurisdiction. The applicants were granted resale relief where these numbers were approximately 25%.

Irish Residential Properties REIT Limited ("IRISH REIT") was conducting its initial public offering of ordinary shares on the Irish Stock Exchange and was proposing a concurrent private placement in other jurisdictions, including Canada. Canadian Apartment Properties Real Estate Investment Trust ("CAPREIT") was intending to make a substantial investment in the ordinary shares in the private placement. It was anticipated that as a result of the CAPREIT investment and other private placement purchases, Canadians would constitute approximately 25% of the beneficial holders of the ordinary shares and would hold more than 10% of the ordinary shares of IRISH REIT. Both IRISH REIT and CAPREIT requested and were granted relief from the 10% conditions to offshore resales, provided that (i) the resale otherwise complies with the relevant exemption, and (ii) after closing of the IPO and the private placements, Canadians own, directly or indirectly, no more than 25% of the total issued and outstanding ordinary shares, and represent no more than 25% of the total number of direct or indirect owners of ordinary shares. Among the facts that may have assisted in obtaining the relief was that the private placements were to be made only to a very limited number of institutional accredited investors, each of which would be institutional "permitted clients" as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. CAPREIT also agreed to a two year lockup on its ordinary shares. Click here for the full order.

FROM THE COURTS

Press Release Issued by Reporting Issuer Afforded Qualified Privilege from Defamation; Directors Not Personally Exposed

By: Greg Hogan

Officers and directors of reporting issuers can take comfort that acting in good faith to cause an issuer to comply with securities laws should not expose them to liability for defamation. What is included in a press release must be limited to what is required by law and what is relevant to the capital markets – public allegations could still go "over the line."

The British Columbia Court of Appeal dismissed an appeal of a finding that determined that it is not defamatory for a public company to communicate to its shareholders its intentions with respect to a lawsuit, even if it does not ultimately respond in that manner. In April 2007, Merit Consultants International Ltd. ("Merit"), an engineering firm, was engaged by Redfern Resources Inc. ("Redfern"), a mining company, as the construction manager at Redfern's project. Redfern terminated the contract in March 2008, following which Merit sued for breach of contract. The parent of Redfern, Redcorp Ventures Ltd. ("Redcorp"), issued a press release indicating that Redfern intended to "vigorously defend" against the claims by Merit and would counterclaim against Merit for negligence and breach of contract. In Redfern's counterclaim, there was no allegation of negligence. As a result of bankruptcies of Redfern and Redcorp, Merit sued former directors of Redcorp alleging that the press release was defamatory, as an allegation of negligence against professional engineers was a serious reputational attack. At trial, the Court found that the communication was protected, whether the occasion was one of qualified privilege or absolute immunity, and dismissed the claim. In doing so, the Court noted that it would be untenable if Redfern was only entitled, at law, to report the fact that the claim had been commenced without also advising its shareholders that the action would be defended and on what basis. On appeal, the Court dismissed the appeal, making the following findings:

• The directors did not publish the press release – any liability would be the corporation's. Generally, an officer or director of a corporation is not, merely because of that status, liable for the tortious conduct of the corporation unless there is an "independent" or "personal" cause of action engaged. In this case, none was pleaded and no allegation was made that the directors had acted other than bona fide in the best interests of Redfern and Redcorp. On the evidence before the Court, it could not find (i) that the directors exhibited a "separate identity or interest", (ii) that there was some activity that took the directors "out of the role of directing minds of the corporation", or (iii) that the conduct complained of consisted of physical injury, property damage, nuisance, fraud or dishonesty.
• The press release was protected by qualified privilege. The Court noted that while qualified privilege cannot succeed where the words complained of have been published "to the world", reporting issuers are in a different position. A reporting issuer has a statutory duty to its shareholders to comply with applicable disclosure requirements. The requirement that information be published in a news release recognizes the obvious "interest" that shareholders and prospective shareholders would have in the contents of such news release. A reporting issuer is not limited to just report the fact of the lawsuit without referring to the intention to counterclaim for negligence, which intention is clearly of interest to a shareholder or persons who might become shareholders. The latter fact is connected to the fact of the lawsuit and both were relevant to the matter that was protected by qualified privilege.

CBB KNOWLEDGE CENTRE

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

Disclosure Tip of the Month

National Instrument 43-101: Part 2 - What Issuers Needs to Know About Terminology

By: Greg Hogan and Alexander Pizale

This is the second instalment in our periodic series on National Instrument 43-101.

Terms and phrases used in mining disclosures are technical, and industry jargon can be used inconsistently. However, when used correctly, specialized terms can encapsulate the complexity and specificity of technical and geological concepts. Applied with lack of care or worse, abused, that same language will obscure meaning and possibly mislead, which could result in undesirable scrutiny from the regulators.

NI 43-101 mandates the use of some terms, restricts the use of other terms and uses terms that will determine the disclosure that is necessary. In addition, regulators have recently focused on some terms that are not explicitly dealt with in NI 43-101, but that in their view are being used incorrectly. Finally, there are some terms used in NI 43-101 that can be the source of confusion, the use of which should be with caution.

Click here for the full article.

PUBLIC COMPANY ACTIVITY

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

Public Offerings

Launched June 16-30, 2014

Equity Offerings

Debt Offerings

M&A

• On July 15, 2014, the shareholders of Tuckamore Capital Management Inc. will be asked to vote to approve an arrangement involving Tuckamore, Triumph Acquisition LP and 2422755 Ontario Inc., a wholly-owned subsidiary of Triumph Acquisition LP, pursuant to which 2422755 Ontario Inc. will acquire all of Tuckamore's outstanding common shares not already owned or controlled by Messrs. Dean MacDonald, Adrian Montgomery and Paul Hatcher, for cash consideration of $0.75 per common share.
• On July 21, 2014, the shareholders of Active Control Technology Inc. will be asked to vote to approve the amalgamation of Active Control and 2421987 Ontario Limited.

WHAT WE'VE BEEN UP TO

Recent Transactions

We are acting for Nord Gold N.V. in connection with a share purchase agreement with Goldrush Resources Ltd. to acquire all of the shares of Goldrush's 100% owned Goldrush Burkina S.A.R.L. for total proceeds of USD $4.25 million. Goldrush Burkina owns the Ronguen Gold project, a late stage exploration project which is located 10 kilometres northwest of Nord Gold's operating Bissa mine. Click here for more details.

We acted for NGEx Resources Inc. in connection with a private placement of common shares to Swedish and international investors for gross proceeds of approximately $35 million. The net proceeds of the private placement will be used to fund NGEx's continued exploration programs in Chile and Argentina as well as for corporate development and general working purposes. Click here for more details.

We acted for Sandstorm Gold Ltd. in connection with a plan of arrangement pursuant to which it acquired all of the issued and outstanding shares of Sandstorm Metals & Energy Ltd. With the acquisition of Sandstorm Metals, Sandstorm Gold now has a portfolio of nine streams and 28 royalties, of which 13 of the underlying mines are producing gold. The terms of the arrangement value Sandstorm Metals at approximately $49 million. Click here for more details.

We acted for Dundee Securities Ltd. and a syndicate of underwriters in connection with a bought deal offering of units of Western Lithium USA Corporation for gross proceeds of approximately $9.2 million. Western Lithium intends to use the net proceeds of the offering for, among other things, the completion of the organoclay manufacturing plant in Nevada, which is scheduled for commissioning in the fall of 2014, and for working capital and general corporate purposes. Click here for more details.

We acted for Wellgreen Platinum Ltd. in connection with a bought deal offering of 10,615,650 units for total gross proceeds of approximately $6.9 million. Click here for more details.

We acted for Nighthawk Gold Corp. in connection with a private placement of units and flow-through units for total gross proceeds of $8 million. The gross proceeds from the sale of the flow-through units will be used to incur "Canadian exploration expenses" on the continued exploration of the company's Indin Lake Gold property located in the Northwest Territories. The net proceeds from the sale of the units will be used for general working capital purposes. Click here for more details.

We acted for Castle Mountain Mining Company Limited in connection with a bought deal offering of units for total gross proceeds of approximately $5.7 million. The net proceeds of the offering will be used for Phase 2 drilling at the Castle Mountain property in San Bernardino, California, and for general corporate purposes. Click here for more details.

We acted for Excelsior Mining Corp. in connection with a bought deal offering for gross proceeds of $4 million. The net proceeds of the offering will be used for the continued development of Excelsior's Gunnison Copper project and for working capital purposes. Click here for more details.

We acted for Yamana Gold Inc. in its private offering of U.S.$500 million aggregate principal amount of 4.95% senior notes due 2024. Click here for more details.

This document is for informational purposes only and does not constitute, nor is it is a substitute for legal advice. Members should consult their own legal counsel for advice regarding the application of the Competition Act to any immunity/leniency process.