National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Dual application for exemptive relief in relation to proposed distributions of securities by issuer by way of a committed equity facility (also known as an "equity line of credit") -- an equity line of credit is a type of financing which permits a public company to sell newly issued securities of the company at a discount to the market price of the securities -- the structure of the proposed transaction is novel in that the Purchaser will acquire shares on a monthly basis rather than pursuant to a drawdown notice as is the case with a traditional equity line financing -- the transaction may be considered to be an indirect at-the-market distribution of securities of the issuer to investors in the secondary market with the equity line purchaser acting as underwriter -- purchaser requires dealer registration relief -- issuer and purchaser require prospectus form and prospectus delivery relief -- issuer will file shelf prospectus which will qualify resales -- relief granted to the issuer and purchaser from certain registration and prospectus requirements, subject to terms and conditions, including restrictions on the number of securities that may be distributed under an equity line, certain restrictions on the permitted activities of the purchaser, timely disclosure and certain notification and disclosure requirements.
Applicable Legislative Provisions
Securities Act, ss. 25, 53, 74(1).
National Instrument 44-101 Short Form Prospectus Distributions, s. 8.1.
Form 44-101F1 Item 20.
National Instrument 44-102 Shelf Distributions, ss. 5.5.2, 5.5.3, 11.1.
Citation: Olivut Resources Ltd., Re, 2012 ABASC 507
December 5, 2012
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ALBERTA AND ONTARIO
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
OLIVUT RESOURCES LTD. (the Issuer),
THE CANADIAN SPECIAL OPPORTUNITY FUND, LP (the Purchaser) AND
THE LIND PARTNERS CANADA, LLC
(the Purchase Manager and, together with the Issuer and the Purchaser, the Filers)
The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) has received an application from the Filers for a decision under the securities legislation of the Jurisdictions (the Legislation) that:
(a) the following prospectus disclosure requirements under the Legislation (the Prospectus Disclosure Requirements) do not fully apply to the Issuer in connection with the Distribution (as defined below):
(i) the statement in the Prospectus Supplement (as defined below) respecting statutory rights of withdrawal and rescission or damages in the form prescribed by item 20 of Form 44-101F1 Short Form Prospectus of National Instrument 44-101 Short Form Prospectus Distributions (NI 44-101); and
(ii) the statements in the Base Shelf Prospectus required by subsections 5.5(2) and (3) of National Instrument 44-102 Shelf Distributions (NI 44-102);
(b) the prohibition from acting as a dealer or underwriter unless the person or company is registered as such (the Dealer Registration Requirement) does not apply to the Purchaser and the Purchase Manager in connection with the Distribution (as defined below);
(c) the requirement that a dealer send a copy of the Prospectus (as defined below) to a subscriber or purchaser in the context of a distribution (the Prospectus Delivery Requirement), and a purchaser's right to withdrawal, revocation or rescission within two days of receipt of the Prospectus, do not apply to the Issuer, the Purchaser, the Purchase Manager or any dealer(s) through whom the Purchaser distributes the Shares (as defined below) and, as a result, rights of withdrawal or rights of rescission, price revision or damages for non-delivery of the Prospectus do not apply in connection with the Distribution (as defined below) (the relief contemplated in paragraphs (a), (b) and (c) being together referred to as the Exemptive Relief Sought); and
(d) the Application and this decision be held in confidence by the Decision Makers (theConfidentiality Relief).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
(a) the Alberta Securities Commission is the principal regulator for this application;
(b) the Filers have provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia; and
(c) this decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in National Instrument 14-101 Definitions or MI 11-102 have the same meaning if used in this decision, unless otherwise defined herein.
This decision is based on the following facts represented by the Filers:
1. The Issuer is a corporation continued and validly existing under the Business Corporations Act (Ontario) with its head office in Hinton, Alberta.
2. The Issuer is engaged in the acquisition, exploration and development of properties for the purpose of mining diamonds.
3. The Issuer is a reporting issuer under the securities legislation of each of the Jurisdictions and is not in default of the securities legislation of any jurisdiction of Canada.
4. The Issuer's authorized share capital currently consists of an unlimited number of common shares (the Shares) of which 33,852,382 Shares were issued and outstanding as at July 31, 2012.
5. The Shares are listed and posted for trading on the TSX Venture Exchange Inc. (the TSX-V) under the symbol "OLV". Based on the closing price of $1.09 per Share on the TSX-V on July 31, 2012, the current market capitalization of the Issuer is approximately $36,899,096.
6. The Issuer is qualified to file a short form prospectus under section 2.2 of NI 44-101 and is also qualified to file a base shelf prospectus under NI 44-102.
7. The Issuer intends to file with the securities regulatory authority in each of the Jurisdictions a base shelf prospectus pertaining to securities of the Issuer, including the Shares (such base shelf prospectus and any amendment thereto and renewal thereof being referred to herein as the Base Shelf Prospectus).
8. The statements required by subsections 5.5(2) and (3) of NI 44-102 to be included in the Base Shelf Prospectus will be qualified by adding the following statement: ", except in cases where an exemption from such delivery requirements has been obtained."
The Purchaser and the Purchase Manager
9. The Purchaser is a Delaware limited partnership with its head office in New York, New York.
10. The Purchaser is managed by the Purchase Manager, a Delaware limited liability company with its head office in New York, New York. The Purchaser is an affiliate of the Purchase Manager within the meaning of National Instrument 45-106 Prospectus & Registration Exemptions.
11. Neither the Purchaser nor the Purchase Manager is a reporting issuer or registered as a registered firm, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations, in any jurisdiction of Canada. The Purchaser and the Purchase Manager are not in default of securities legislation in any jurisdiction of Canada.
The Securities Purchase Agreement
12. The Issuer and the Purchaser propose to enter into a securities purchase agreement (the SPA), pursuant to which the Purchaser will agree to subscribe for, and the Issuer will agree to issue and sell, up to $17,700,000 (the Aggregate Commitment Amount) of securities comprised of Shares and Share purchase warrants (Warrants) as described in paragraph 15 below, in a series of 36 monthly tranches (subject to adjustment or early termination as provided in the SPA).
13. The SPA will provide the Issuer with the ability to raise capital in tranches. Affiliates of the Purchaser regularly engage in such transactions with issuers listed on the Australian Securities Exchange. The Purchaser may, in certain circumstances, finance its commitment to subscribe for securities on a tranche through resales from existing holdings of the Issuer's securities.
14. Under the SPA, the Purchaser will subscribe for securities of the Issuer (as described in paragraph 15 below) on a monthly basis (subject to the terms of the SPA) in the amount of $200,000 per tranche (subject to reduction as provided in the SPA), which may be increased to up to $500,000 per tranche by the mutual consent of the Issuer and the Purchaser, subject to certain conditions including the Aggregate Commitment Amount.
15. Until such time as 500,000 Warrants are received by the Purchaser (including, for this purpose, Warrants issuable pursuant to the Convertible Security described in paragraph 21 below) pursuant to the SPA, each security issuable on a tranche Issuance Date (as defined below) shall consist of a unit comprised of one Share and one Warrant. Thereafter, each such security shall consist of one Share.
16. Securities issuable in a particular tranche under the SPA will be issued (subject to the conditions to issuance in the SPA) at a subscription price per unit or Share, as applicable (the Purchase Price), equal to 92.5% of the average of the five daily volume-weighted average prices of a Share on the TSX-V, chosen by the Purchaser, during the 20 trading days immediately prior to the Issuance Date (as defined below) for that tranche (the Pricing Period). Notwithstanding the foregoing, the Purchase Price may not be lower than the volume-weighted average price of a Share on the TSX-V on the trading day immediately preceding the relevant Cash Advance Date (as defined below), less the permitted discount under the private placement rules of the TSX-V (the Set Floor Price). For any tranche, if the Purchase Price is lower than the Set Floor Price, the Purchaser may, at its sole discretion subject to the terms of the SPA, elect not to purchase securities under that tranche, in which case the Issuer will refund to the Purchaser the prepayment with respect to such securities, provided that such refund may be set off against the next prepayment payable by the Purchaser.
17. The Issuer will be entitled to propose a floor price per unit or Share, as applicable, to be issued on an Issuance Date (as defined below), which floor price will be fixed for the term of the SPA (the Issuer Floor Price). If the Purchase Price is less than the Issuer Floor Price, the Issuer may elect not to issue that tranche's securities, provided that the Issuer repays the aggregate Purchase Price for that tranche plus a 2.5% premium and provided that the Purchaser may instead elect to subscribe for that tranche's securities at a purchase price equal to the Issuer Floor Price. If the volume-weighted average price of a Share for any five consecutive trading days during the Pricing Period is less than the Issuer Floor Price, the Purchaser may elect to postpone by 10 trading days the relevant Issuance Date (and the issuance of securities for that tranche) and the prepayment on the Cash Advance Date (as defined below) that would otherwise immediately follow that Pricing Period, provided that the Purchaser may undertake such a postponement only once in relation to any one tranche and cannot undertake such postponements in relation to more than three tranches in any one year.
18. Subject to the terms of the SPA, the Purchaser will prepay for each tranche of securities on a date (each, a Cash Advance Date) determined in accordance with the SPA, each (except the initial such date) to follow the preceding Cash Advance Date by approximately 30 days (unless adjusted as provided in the SPA). The Issuer will issue the securities under each tranche to the Purchaser at the Purchase Price on the date (each, an Issuance Date) that is the 28th day after the Cash Advance Date on which the Purchaser prepaid for such tranche, subject to the terms (including adjustments) of the SPA.
19. Under the SPA, the Issuer will be permitted to terminate the SPA in certain circumstances, including:
(a) at no cost after the date that is 18 months following the date of the SPA;
(b) at no cost if the Purchase Price is less than the Issuer Floor Price; and
(c) upon payment of a cancellation fee of $200,000.
20. If the volume-weighted average price of a Share is at or below $0.85 (the Base Price) for any two consecutive trading days during the term of the SPA, the Purchaser will have the right to pause prepayments and tranche securities purchases under the SPA. If at any time during the initial 60 days of such pause period, the volume-weighted average price of a Share on the TSX-V increases to above the Base Price for ten consecutive trading days and certain other conditions specified in the SPA are satisfied, the Issuer will have the right to require the Purchaser to resume its prepayments and tranche securities purchases under the SPA. Where such notice is not provided or any such conditions are not satisfied, the Purchaser has the right to elect to terminate the SPA or resume prepayments and tranche securities purchases.
21. Pursuant to the SPA, the Purchaser will also subscribe for, and the Issuer will issue, on a private placement basis at a price of $300,000, an unsecured subordinated convertible security (the Convertible Security), repayable 36 months after the initial Cash Advance Date. The Convertible Security may be converted into units, each unit comprised of one Share and, except in certain circumstances if the Purchase Manager terminates the SPA within 12 months of execution, one Warrant, in whole or in increments of not less than $50,000, upon the Purchaser giving notice of conversion to the Issuer during its term. The conversion price per unit will be equal to 100% of the volume-weighted average price of a Share on the five trading days immediately prior to the date of the Convertible Security's issuance. The Purchaser will have the right to elect to receive cash repayment of the Convertible Security, in whole or in part, at any time after six months following its issuance or if the Issuer terminates the SPA.
22. Each Warrant received by the Purchaser pursuant to the SPA will be non-transferable and exercisable until 36 months after the initial Cash Advance Date at an exercise price equal to 120% of the average of the volume-weighted average price of a Share during the 20 consecutive trading days prior to (i) the initial Cash Advance Date, in the case of Warrants issuable on conversion of the Convertible Security, or (ii) the date of issuance of such Warrant, in the case of Warrants issuable on an Issuance Date. The first 250,000 Warrants received by the Purchaser (including, for this purpose, Warrants issuable on conversion of the Convertible Security) pursuant to the SPA shall vest immediately, with the balance of the 250,000 Warrants issuable to the Purchaser under the SPA vesting on the earlier of (i) the first anniversary of the initial Cash Advance Date, and (ii) termination of the SPA by the Issuer. If the SPA is terminated by the Purchase Manager within 12 months of the date of the SPA, any Warrants received by the Purchaser under the SPA in excess of 250,000 Warrants will be cancelled and no more will be issuable.
23. In connection with the entering into of the SPA, the Issuer will be required, on the initial Cash Advance Date, to pay to the Purchaser a commitment fee (the Commitment Fee) of $200,000 payable in Shares at a price per Share equal to 92.5% of the average of the volume-weighted average price of a Share on the TSX-V on five trading days, chosen by the Purchaser, during the 20 trading days immediately prior to the initial Cash Advance Date, provided that such price shall not be less than the Set Floor Price on the trading day immediately preceding the initial Cash Advance Date.
24. The Convertible Security, and the Warrants and Shares underlying the Convertible Security, will be subject to the resale restrictions of applicable securities laws.
25. The SPA will provide that, at the time of each issuance and sale of Shares, the Issuer will represent to the Purchaser that the Base Shelf Prospectus, as supplemented (the Prospectus), contains full, true and plain disclosure of all material facts relating to the Issuer and the Shares being distributed. The Issuer would therefore be unable to issue Shares pursuant to the Distribution (as defined below) if it is in possession of undisclosed information that would constitute a material fact or a material change.
26. On or after each Issuance Date, the Purchaser may seek to sell all or a portion of the Shares acquired in a tranche (or Shares underlying Warrants acquired in a tranche) that have been delivered by the Issuer to the Purchaser.
27. During the term of the SPA, the Purchaser and its affiliates, associates or insiders (together, the Purchaser Entities), as a group, will not own at any time, directly or indirectly, Shares representing more than 9.99% of the issued and outstanding Shares (excluding the Shares issuable upon the conversion of the Convertible Security and the exercise of the Warrants).
28. The Purchaser Entities will not engage in short sales of the Shares during the term of the SPA. Specifically, each of the Purchaser Entities will not:
(a) sell Shares that it does not hold in its inventory and that it does not own outright;
(b) pre-sell Shares that it expects to receive or has contracted to receive, where such Shares have not yet been issued and delivered to the Purchaser Entity;
(c) borrow Shares to be sold; or
(d) borrow Shares to cover a short position.
29. Disclosure of the restrictions on the activities of the Purchaser Entities described in paragraph 28 above will be included in the Prospectus Supplement. In addition, the Issuer will disclose in the Prospectus Supplement, as a risk factor, that the Purchaser may engage in resales or other hedging strategies to reduce or eliminate investment risks associated with a tranche and the possibility that such transactions could have a significant effect on the price of the Shares.
30. No extraordinary commission or consideration will be paid by the Purchaser or the Purchase Manager to a person or company in respect of the disposition of Shares by the Purchaser to purchasers who purchase the same on the TSX-V or another exchange recognized or exempted from recognition by the securities regulatory authorities in the Jurisdictions (each, a Recognized Exchange) through registered dealer(s) engaged by the Purchaser (the Exchange Purchasers).
31. The Purchaser and the Purchase Manager, in effecting any resale of Shares, will not engage in any sales, marketing or solicitation activities of the type undertaken by dealers or underwriters in the context of a public offering. Specifically, neither the Purchaser nor the Purchase Manager will: (a) advertise or otherwise hold itself out as a dealer; (b) purchase or sell securities as principal from or to customers; (c) carry a dealer inventory in securities; (d) quote a market in securities; (e) extend, or arrange for the extension of, dealer credit in connection with transactions of securities of the Issuer by customers; (f) run a book of repurchase and reverse repurchase agreements; (g) use a carrying broker for securities transactions; (h) lend securities for customers; (i) guarantee contract performance or indemnify the Issuer for any loss or liability from the failure of the transaction to be successfully consummated; or (j) participate in a selling group.
32. The Purchaser and the Purchase Manager will not solicit offers to purchase Shares in any jurisdiction of Canada and will sell the Shares to Exchange Purchasers via the facilities of a Recognized Exchange, through one or more registered dealer(s) unaffiliated with the Purchaser or the Purchase Manager.
The Prospectus Supplement
33. The Issuer intends to file with the securities regulatory authority in each of the Jurisdictions: (i) a prospectus supplement to the Base Shelf Prospectus (the Prospectus Supplement) as soon as commercially reasonable following the date on which the Base Shelf Prospectus is receipted by the applicable securities regulatory authorities; and (ii) a pricing supplement (each, a Pricing Supplement) within two trading days of each Issuance Date.
34. The Prospectus Supplement will disclose: (i) the Aggregate Commitment Amount; (ii) the formula to calculate the Purchase Price; (iii) in addition to the information otherwise required by NI 44-102, the disclosure prescribed by subsection 9.1(3) thereof; (iv) certain other information required by NI 44-101 omitted from the Base Shelf Prospectus in accordance with NI 44-102, and (v) the following statement (the Amended Statement of Rights):
Securities legislation in certain of the provinces of Canada provides purchasers with the right to withdraw from an agreement to purchase securities. This right may be exercised within two business days after receipt or deemed receipt of a prospectus and any amendment. In several of the provinces, the securities legislation further provides a purchaser with remedies for rescission or, in some jurisdictions, revisions of the price or damages if the prospectus and any amendment are not delivered to the purchaser, provided that the remedies for rescission, revisions of the price or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser's province. However, such rights and remedies will not be available to purchasers of common shares distributed under this Prospectus Supplement because the Prospectus, the Prospectus Supplement and the relevant Pricing Supplement will not be delivered to purchasers, as permitted under a decision document issued by the Alberta Securities Commission on [insert date of decision document].
The securities legislation further provides a purchaser with remedies for rescission or, in some jurisdictions, revisions of the price or damages, if the prospectus and any amendment contain a misrepresentation, provided that the remedies for rescission, revisions of the price or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser's province. Such remedies remain unaffected by the non-delivery of the prospectus permitted under the decision document referred to above.
The purchaser should refer to any applicable provisions of the securities legislation of the purchaser's province for the particulars of these rights or consult with a legal adviser.
35. Each Pricing Supplement will disclose: (i) the number of Shares issued to the Purchaser; (ii) the applicable Purchase Price; and (iii) the aggregate Purchase Price.
36. The Base Shelf Prospectus, as supplemented by the Prospectus Supplement and the relevant Pricing Supplement, will qualify,inter alia, (a) the distribution of Shares and, if applicable, Warrants (and Shares underlying such Warrants), to the Purchaser on the relevant Issuance Date and the distribution of the Shares issuable pursuant to the Commitment Fee on the initial Cash Advance Date, and (b) the disposition of Shares to Exchange Purchasers who purchase Shares from the Purchaser through the dealer(s) engaged by the Purchaser via the facilities of a Recognized Exchange during the period that commences on the relevant Cash Advance Date and ends on the earlier of (i) the date on which the distribution of such Shares has ended, and (ii) the 40th day following the relevant Issuance Date (or the initial Cash Advance Date, as the case may be) (collectively, the Distribution), provided that, at any particular time, the Base Shelf Prospectus, as supplemented, shall not qualify a greater number of Shares than were qualified by the Prospectus pursuant to clause (a) above and issued to the Purchaser pursuant to the SPA to that time.
37. The Prospectus Delivery Requirement is not workable in the context of the Distribution because Exchange Purchasers will not be readily identifiable as the dealer(s) acting on behalf of the Purchaser may combine the sell orders made under the Prospectus with other sell orders and the dealer(s) acting on behalf of Exchange Purchasers may combine a number of purchase orders.
38. The Prospectus Supplement will contain an underwriter's certificate, signed by the Purchaser, in the form set out in section 1.2 of Appendix A to NI 44-102.
39. At least three business days prior to the filing of the Prospectus Supplement to be filed as described in paragraph 33, the Issuer will provide for comment to the Decision Makers a draft of such Prospectus Supplement.
News Releases/Continuous Disclosure
40. Within two business days after the execution of the SPA, the Issuer will:
(a) issue and file on SEDAR a news release and a material change report disclosing the material terms of the SPA, including: (i) the Aggregate Commitment Amount; (ii) the dollar value of the monthly tranches of Shares to be issued; (iii) the Issuer Floor Price; (iv) the restrictions on short sales described in paragraph 28 above; and (v) the formula to calculate the Purchase Price; and
(b) file on SEDAR a copy of the SPA.
41. In the event of (i) a change in the size of a monthly tranche; (ii) the cancellation of the issuance of Shares on an Issuance Date as a result of the Purchase Price being lower than the Issuer Floor Price or the Set Floor Price; (iii) the suspension of prepayments and purchases by the Purchaser if the volume-weighted average price of a Share is at or below the Base Price for two consecutive trading days; (iv) the termination of the SPA; or (v) a change in (A) the Aggregate Commitment Amount; (B) the dollar value of the monthly tranches of Shares to be issued; (C) the Issuer Floor Price; (D) the restrictions on short sales described in paragraph 28 above; or (E) the formula to calculate the Purchase Price, the Issuer will:
(a) as soon as practicable, issue and file on SEDAR a news release disclosing such information and:
(i) that the Base Shelf Prospectus, the Prospectus Supplement and each Pricing Supplement will be available on SEDAR and specifying how a copy of these documents can be obtained; and
(ii) the Amended Statement of Rights; and
(b) within 10 days, file a material change report with respect to such event if it constitutes a material change under applicable securities legislation.
42. If the Distribution on a particular Issuance Date constitutes a material change under applicable securities legislation, the Issuer will:
(a) as soon as practicable after that Issuance Date, issue and file on SEDAR a news release disclosing at a minimum the number of Shares issued to and the Purchase Price paid by the Purchaser and the information required by subparagraphs 41(a)(i) and (ii) above; and
(b) within 10 days after that Issuance Date file a material change report with respect to such event.
43. The Issuer will disclose in its financial statements and management's discussion and analysis filed on SEDAR under National Instrument 51-102 Continuous Disclosure Obligations, for each financial period: (i) the number and price of Shares issued to the Purchaser pursuant to the SPA; and (ii) that the Base Shelf Prospectus, the Prospectus Supplement and the relevant Pricing Supplement are available on SEDAR and specifying where and how a copy of these documents can be obtained.
Deliveries upon Request
44. The Purchaser will make available to the securities regulatory authority in each of the Jurisdictions, upon request, full particulars of trading and hedging activities by the Purchaser or the Purchase Manager (and, if required, trading and hedging activities by their respective affiliates, associates or insiders) in relation to the securities of the Issuer during the term of the SPA.
Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Makers to make the decision.
The decision of the Decision Makers under the Legislation is that the Exemptive Relief Sought is granted, provided that:
(a) the number of Shares distributed by the Issuer under the SPA does not exceed, in any 12 month period, 20% of the aggregate number of Shares outstanding calculated at the beginning of such period;
(b) as it relates to the Prospectus Disclosure Requirements, the Issuer complies with the representations in paragraphs 8, 29, 34, 35, 36, 38, 40, 41, 42 and 43 above;
(c) as it relates to the Prospectus Delivery Requirement and the Dealer Registration Requirement, the Purchaser and the Purchase Manager comply with the representations in paragraphs 28, 30, 31, 32, 38 (in respect of the Purchaser only) and 44 above;
(d) the Confidentiality Relief is granted until the earliest of:
(i) the date on which the Issuer issues the news release described in paragraph 40 above;
(ii) the date on which the Issuer advises the principal regulator that there is no longer a need for the application and this decision to remain confidential; and
(iii) 90 days from the date of this decision; and
(e) this decision will terminate 25 months from the date of the receipt for the final Base Shelf Prospectus.
For the Commission:
"Glenda Campbell, QC"Vice-Chair"Stephen Murison"Vice-Chair