Exempt market dealer (EMD) acting as finder and financial advisor in connection with private placement of special warrants -- EMD considered to have acted as underwriter in connection with private placement of special warrants based on consideration of definition of "underwriter", functions performed by EMD and compensation paid to EMD -- preliminary prospectus filed to qualify distribution of securities underlying special warrants -- special warrant transaction in substance a distribution of underlying securities under a prospectus -- EMD therefore acting as underwriter in respect of distribution under a prospectus -- EMDs not permitted to act as underwriter in respect of prospectus distribution absent exemptive relief -- Exemptive relief to permit EMD to act as underwriter for prospectus distribution granted provided EMD signs the underwriter certificate in prospectus.
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 1(1) "underwriter", 25(2), 26(4), 74(1), 147.
Companion Policy 41-101CP Companion Policy to National Instrument 41-101 General Prospectus Requirements, s. 2.8(2).
January 22, 2010
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
IN THE MATTER OF
CASIMIR CAPITAL LP
The Ontario Securities Commission (the "Commission") has received an application from Casimir Capital LP ("Casimir") for an order pursuant to subsection 74(1) and section 147 of the Securities Act (Ontario) (the "Act") that Casimir be exempt from the restrictions contained in subsections 25(2) and 26(4) of the Act from acting as an underwriter in connection with the distribution of units of ECU Silver Mining Inc. ("ECU Silver") issuable upon the exercise or deemed exercise of outstanding special warrants of ECU Silver, such distribution to be qualified by the filing and issuance of a receipt for a preliminary short form prospectus dated December 10, 2009 (the "Preliminary Prospectus") and a final short form prospectus expected to be filed on or about January 22, 2010 (the "Prospectus"), in Ontario and Quebec.
This decision is based on the following facts represented by the Filer:
1. Casimir is a limited partnership formed under the laws of the State of Delaware on August 18, 2000.
2. Casimir's head office is located at 546 Fifth Avenue, New York, NY 10017, USA.
3. Casimir is registered in Ontario as an Exempt Market Dealer ("EMD"). To the best of its knowledge, Casimir is not in default of securities legislation in any of the provinces of Canada.
4. Casimir is registered in the United States as a broker-dealer with The Financial Industry Regulatory Authority, Securities Investor Protection Corporation, Municipal Securities Rule Making Board and is regulated by the U.S. Securities and Exchange Commission.
5. ECU Silver is a mining company incorporated in the Province of Quebec with its head office in Quebec.
6. On November 30, 2009, ECU Silver issued a press release announcing its intention to issue 13,900,000 special warrants by way of private placement at an issue price of $0.72 per special warrant for aggregate proceeds of $10,008,000.
7. On December 8, 2009, ECU Silver completed a private placement of 13,900,000 special warrants (the "Special Warrants") by way of private placement (the "Private Placement") at an issue price of $0.72 per Special Warrant for aggregate proceeds of approximately $12,200,000.
8. On December 10, 2009, ECU Silver filed the Preliminary Prospectus in Ontario and Quebec to qualify the distribution of 16,946,000 units of ECU Silver issuable upon the exercise or deemed exercise of 16,946,000 outstanding Special Warrants.
9. Casimir acted as financial advisor to ECU Silver and a finder in connection with the Private Placement of the Special Warrants. Pursuant to a revised agreement entered into between Casimir and ECU Silver on January 22, 2010, Casimir received an advisory fee in the amount of $198,028.40 and finder's fees in the aggregate amount of $301,971.60, in addition to the reimbursement of certain of its expenses. The finder's fees paid to Casimir represent 7% of the gross proceeds realized by ECU Silver from private placements to investors introduced by Casimir.
10. Under Ontario securities law, an EMD is not permitted to act as "underwriter" in connection with a distribution of securities under a prospectus in the absence of exemptive relief.
The Commission is satisfied that granting the Exemption Sought would not be prejudicial to the public interest.
The decision of the Commission under the Act is that the Exemption Sought is granted, provided that Casimir signs the underwriter certificate in the final Prospectus.
Dated this 22nd day of January, 2010.
"James D. Carnwath"