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Organigram Holdings Inc. et al.
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Application for exemptive relief to permit issuer and underwriters, acting as agents for the issuer, to enter into an equity distribution agreement to make at the market (ATM) distributions of common shares over the facilities of the TSX, the NASDAQ or other marketplace upon which the common shares of the issuer are listed -- ATM distributions to be made pursuant to shelf prospectus procedures in Part 9 of NI 44-102 Shelf Distributions -- Issuer will issue a news release announcing the equity distribution agreement and file the agreement on SEDAR -- Application for relief from prospectus delivery requirement -- Delivery of prospectus not practicable in circumstances of an ATM distribution -- Relief from prospectus delivery requirement has effect of removing two-day right of withdrawal and remedies of rescission or damages for non-delivery of the prospectus -- Application for relief from certain prospectus form requirements -- Relief granted to permit modified forward-looking certificate language -- Relief granted on terms and conditions set out in decision document -- Decision will terminate 25 months after the issuance of a receipt for the shelf prospectus -- Decision and application also held in confidence by decision makers until the earlier of the date the issuer announces an ATM distribution, enters into an equity distribution agreement, waives confidentiality, or 60 days from the date of the decision.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 71(1), 140 and 147.
National Instrument 44-101 Short Form Prospectus Distributions, 8.1 and Item 20 of Form 44-101F1.
National Instrument 44-102 Shelf Distributions, s. 6.7, Part 9, s. 11.1 and ss. 2.1, 2.2 and 2.4 of Appendix A.
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions.
November 22, 2019
IN THE MATTER OF THE SECURITIES LEGISLATION OF NEW BRUNSWICK AND ONTARIO (THE "JURISDICTIONS") AND IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS AND IN THE MATTER OF ORGANIGRAM HOLDINGS INC. (THE "ISSUER") AND IN THE MATTER OF BMO NESBITT BURNS INC. (THE "CANADIAN AGENT") AND BMO CAPITAL MARKETS CORP. (THE "U.S. AGENT", AND TOGETHER WITH THE CANADIAN AGENT, THE "AGENTS", AND TOGETHER WITH THE ISSUER, THE "FILERS")
DECISION
Background
The securities regulatory authority or regulator in each of the Jurisdictions (the "Decision Makers"), have received an application (the "Application") from the Filers for a decision under the securities legislation of the Jurisdictions (the "Legislation") for the following relief (the "Exemptions Sought"):
(a) that the requirement that a dealer not acting as agent of the purchaser who receives an order or subscription for a security offered in a distribution to which the prospectus requirement applies send or deliver to the purchaser the latest prospectus (including the applicable prospectus supplement(s) in the case of a base shelf prospectus) and any amendment to the prospectus (the "Prospectus Delivery Requirement") does not apply to the Agents or any other TSX participating organization or other marketplace participant acting as selling agent for the Agents (each, a "Selling Agent") in connection with any at-the-market distribution (each, an "ATM Distribution" and collectively, the "ATM Offering"), as defined in National Instrument 44-102 -- Shelf Distributions ("NI 44-102") of common shares ("Common Shares") of the Issuer pursuant to one or more equity distribution agreements (each, an "Equity Distribution Agreement") to be entered into between the Issuer and the Agents; and
(b) that the requirements to include in a base shelf prospectus or prospectus supplement or an amendment thereto:
(i) a forward-looking issuer certificate of the Issuer in the form specified in section 2.1 or section 2.4, as applicable, of Appendix A to NI 44-102;
(ii) a forward-looking underwriter certificate in the form specified by section 2.2 or section 2.4, as applicable, of Appendix A to NI 44-102; and
(iii) a statement respecting purchasers' statutory rights of withdrawal and remedies of rescission or damages in substantially the form prescribed in Item 20 of Form 44-101F1 -- Short Form Prospectus;
(collectively, the "Prospectus Form Requirements") do not apply to the Shelf Prospectus (as defined below), the Prospectus Supplement (as defined below) or an amendment thereto provided that the Issuer includes in the Prospectus Supplement or an amendment thereto the form of issuer certificate and form of agent certificate and include in the Prospectus Supplement or an amendment thereto the revised description of a purchaser's statutory rights of withdrawal and remedies for rescission or damages described below, in each case (other than with respect to the underwriter certificate) superseding and replacing the corresponding language in the Shelf Prospectus solely with regards to the ATM Offering.
The Decision Makers have also received a request from the Filers for a decision that the Application and this decision (together, the "Confidential Material") be kept confidential and not be made public until the earliest of: (a) the first date on which the Filers publicly announce an ATM Distribution, (b) the first date on which the Filers enter into an Equity Distribution Agreement; (c) the date the Filers advise the Decision Makers that there is no longer any need for the Confidential Material to remain confidential; and (d) the date that is 90 days after the date of this decision (the "Confidentiality Relief").
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
(a) the Financial and Consumer Services Commission (New Brunswick) is the principal regulator for this Application based on the "most significant connection" test articulated under section 3.6(6)(c) of National Policy 11-203 -- Process for Exemptive Relief Applications in Multiple Jurisdictions;
(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, Alberta, Saskatchewan, Manitoba, Quebec, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, the Yukon, the Northwest Territories and Nunavut (together with the Jurisdictions, the "Reporting Jurisdictions"); and
(c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Interpretation
Terms defined in National Instrument 14-101 -- Definitions, National Instrument 13-101 System for Electronic Document Analysis and Retrieval ("SEDAR"), in MI 11-102 or in NI 44-102 have the same meaning if used in this decision, unless otherwise defined herein. All dollar figures in this decision refer to Canadian dollars.
Representations
This decision is based on the following facts represented by the Filers.
The Issuer
1. The Issuer is a corporation incorporated under the Business Corporations Act (British Columbia) on July 5, 2010 and continued under the Canada Business Corporations Act on April 6, 2016.
2. The Issuer's wholly-owned subsidiary, Organigram Inc., is a licensed producer of cannabis and cannabis derived products under the Cannabis Act (Canada) and the Cannabis Regulations (Canada) and regulated by Health Canada.
3. The Issuer's head and registered offices are located at 35 English Drive, Moncton, New Brunswick, E1E 3X3.
4. The Issuer is a reporting issuer in each of the Reporting Jurisdictions other than the territories and, to its knowledge, is not in default of the requirements of securities legislation applicable therein. The Issuer will become a reporting issuer in the territories upon the issuance of a receipt of the Shelf Prospectus (as defined below).
5. The Common Shares are registered under Section 12(b) of the U.S. Securities Exchange Act of 1934, as amended (the "U.S. Exchange Act") and are listed on the Toronto Stock Exchange (the "TSX") and the Nasdaq Global Select Market ("NASDAQ") under the trading symbol "OGI".
6. The Filer is subject to reporting obligations under the U.S. Exchange Act and files its continuous disclosure documents with the Securities and Exchange Commission (the "SEC") in the U.S. as a "foreign private issuer" under SEC rules.
7. The Issuer filed a preliminary short form base shelf prospectus ("Preliminary Shelf Prospectus") in the Reporting Jurisdictions on November 5, 2019, to qualify the distribution from time to time of Common Shares, preferred shares, debt securities, subscription receipts and warrants, and units comprised of some or all of such securities, and a registration statement and base shelf prospectus (the "Registration Statement") under the U.S. Securities Act of 1933, as amended, on Form F-10 with the SEC under the multi-jurisdictional disclosure system on November 6, 2019, providing for the distribution or registration, as applicable, from time to time of Common Shares having an aggregate offering price of up to $175,000,000.
8. The Financial and Consumer Services Commission (New Brunswick) issued a receipt for the Preliminary Shelf Prospectus on November 6, 2019, which also evidenced the issuance of a receipt by Ontario Securities Commission, and which receipt was deemed pursuant to MI 11-102 to have been issued by the securities regulatory authority of each of the other Reporting Jurisdictions.
The Agents
9. The Canadian Agent is a corporation incorporated under the laws of Canada with its head office in Toronto, Ontario.
10. The Canadian Agent is registered as an investment dealer under the securities legislation of each of the Reporting Jurisdictions, is a member of the Investment Industry Regulatory Organization of Canada, and is a participating organization of the TSX.
11. The U.S. Agent is a corporation incorporated under the laws of Delaware with its head office in New York, New York.
12. The U.S. Agent is a broker-dealer registered with the SEC under the U.S. Exchange Act.
13. Neither of the Agents is in default of the requirements of securities legislation applicable in any of the Reporting Jurisdictions.
Proposed ATM Distribution
14. Subject to mutual agreement on terms and conditions, the Filers expect to enter into one or more Equity Distribution Agreements providing for the sale of Common Shares by the Issuer through the Agents, as agents, pursuant to ATM Distributions under the base shelf prospectus procedures prescribed by Part 9 of NI 44-102.
15. Upon entering into an Equity Distribution Agreement, the Issuer will issue a news release to announce the Equity Distribution Agreement and will file a copy of the Equity Distribution Agreement on SEDAR. The news release will state that the related final base shelf prospectus ("Shelf Prospectus") and the Prospectus Supplement (defined below) have been filed on SEDAR and will specify where and how purchasers of Common Shares under the applicable ATM Offering may obtain copies. A copy of the news release will also be posted on the Issuer's website.
16. Prior to making any ATM Distribution, the Issuer will have filed (i) the Shelf Prospectus in the Reporting Jurisdictions, (ii) the Registration Statement with the SEC, and (iii) a prospectus supplement in the Reporting Jurisdictions and with the SEC, describing the terms of the applicable ATM Offering, including the terms of the Equity Distribution Agreement, and otherwise supplementing the disclosure in the Shelf Prospectus and Registration Statement (the "Prospectus Supplement", and together with the Shelf Prospectus, as supplemented or amended and including any documents incorporated by reference therein, the "Prospectus").
17. Under the proposed Equity Distribution Agreement, the Issuer may conduct one or more ATM Distributions subject to the 10% limitation set out in subsection 9.1(1) of NI 44-102.
18. The Issuer will not, during the period that the Shelf Prospectus is effective, distribute by way of one or more ATM Distributions a total market value of Common Shares that exceeds 10% of the aggregate market value of Common Shares, such aggregate market value calculated in accordance with section 9.2 of NI 44-102 and as at the last trading day of the month before the month in which the first ATM Distribution is made.
19. The Issuer will conduct ATM Distributions only through one or more of the Agents (as agent) directly or via a Selling Agent, and only through (i) the TSX, (ii) the NASDAQ, or (iii) another marketplace (as defined in National Instrument 21-101 Marketplace Operation) upon which such Common Shares are listed, quoted or otherwise traded (each a "Marketplace")
20. The Canadian Agent will act as the sole agent of the Issuer in connection with an ATM Distribution directly or through one or more Selling Agents on the TSX or any other Marketplace in Canada, and will be paid an agency fee or commission by the Issuer in connection with such sales. If sales are effected through a Selling Agent, the Selling Agent will be paid a seller's commission for effecting the trades on behalf of the Canadian Agent. The Canadian Agent will sign an agent's certificate in the Prospectus Supplement, and a purchaser's rights and remedies under applicable securities legislation against the Canadian Agent, as agent of an ATM Distribution through the TSX or any other Canadian Marketplace, will not be affected by a decision to effect the sale directly or through a Selling Agent.
21. The aggregate number of Common Shares sold on the TSX or any other Canadian Marketplace pursuant to an ATM Distribution on any trading day will not exceed 25% of the aggregate trading volume of such Common Shares on the TSX or any other Canadian Marketplace on that day.
22. Each Equity Distribution Agreement will provide that, at the time of each sale of Common Shares pursuant to an ATM Distribution, the Issuer will represent to the Agents that the Prospectus contains full, true and plain disclosure of all material facts relating to the Issuer and Common Shares being distributed. The Issuer would, therefore, be unable to proceed with sales pursuant to an ATM Distribution when it is in possession of undisclosed information that would constitute a material fact or a material change in respect of the Issuer or the Common Shares.
23. During the period after the date of the Prospectus Supplement and before the termination of any ATM Distribution, if the Issuer disseminates a news release disclosing information that, in the Issuer's determination, constitutes a "material fact" (as such term is defined in the Legislation), the Issuer will identify such news release as a "designated news release" for the purposes of the Prospectus. This designation will be made on the face page of the version of such news release filed on SEDAR (any such news release, a "Designated News Release"). The Prospectus Supplement will provide that any such Designated News Release will be deemed to be incorporated by reference into the Prospectus. A Designated News Release will not be used to update disclosure in the Prospectus by the Issuer in the event of a "material change" (as such term is defined in the Legislation of the Jurisdictions).
24. If, after the Issuer delivers a sell notice to the Agents directing the Agents to sell Common Shares on the Issuer's behalf pursuant to an Equity Distribution Agreement (a "Sell Notice"), the sale of Common Shares specified in the Sell Notice, taking into consideration undisclosed prior sales under previous ATM Distributions, would constitute a material fact or material change, the Filer will suspend sales under an Equity Distribution Agreement until either: (i) it has filed a Designated News Release or material change report, as applicable, or amended the Prospectus; or (ii) circumstances have changed such that the sales would no longer constitute a material fact or material change.
25. In determining whether the sale of the number of Common Shares specified in a Sell Notice would constitute a material fact or material change, the Issuer will take into account a number of factors, including, without limitation: (i) the parameters of the Sell Notice, including the number of Common Shares proposed to be sold and any price or timing restrictions that the Filer may impose with respect to the particular ATM Distribution; (ii) the percentage of the outstanding type of such Common Shares that the number of Common Shares proposed to be sold pursuant to the Sell Notice represents; (iii) sales under earlier Sell Notices; (iv) the trading volume and volatility of such Common Shares; (v) recent developments in the business, affairs and capital structure of the Issuer; and (vi) prevailing market conditions generally.
26. It is in the interest of both the Issuer and the Agents to minimize the market impact of sales under an ATM Distribution. Therefore, the Agents will closely monitor the market's reaction to trades made on any Marketplace under the ATM Distribution in order to evaluate the likely market impact of future trades. The Agents have experience and expertise in managing sell orders to limit downward pressure on trading prices. If the Agents have concerns as to whether a particular sell order placed by the Issuer may have a significant effect on the market price of the securities, the Agents will recommend against effecting the trade at that time.
Disclosure of ATM Distributions
27. The Issuer will disclose the number and average price of the Common Shares sold pursuant to an ATM Distribution under the Prospectus, as well as total gross proceeds, agent's commission and net proceeds, in its annual and interim financial statements and management discussion and analysis filed on SEDAR.
Prospectus Delivery Requirement
28. Pursuant to the Prospectus Delivery Requirement, a dealer effecting a trade of securities under a prospectus-based offering is required to deliver a copy of the prospectus (including the applicable prospectus supplement(s) in the case of a base shelf prospectus) to the purchaser within prescribed time limits.
29. The delivery of a prospectus is not practicable in the circumstances of an ATM Distribution, as neither the Agents nor a Selling Agent effecting the trade will know the purchaser's identity.
30. The Prospectus will be filed and readily available to all purchasers electronically via SEDAR. In addition, as stated above, the Issuer will issue a news release that specifies where and how copies of the Prospectus can be obtained.
31. The liability of an issuer or an underwriter (among others) for a misrepresentation in a prospectus pursuant to the civil liability provisions of the Legislation will not be affected by the grant of an exemption from the Prospectus Delivery Requirement, as purchasers of securities offered by a prospectus during the period of distribution have a right of action for damages or rescission if there is a misrepresentation in the prospectus, without regard as to whether the purchaser relied on the misrepresentation and whether the purchaser in fact received a copy of the prospectus.
Withdrawal Right and Right of Action for Non-Delivery
32. Pursuant to the Legislation, an agreement to purchase securities in respect of a distribution to which the prospectus requirement applies is not binding on the purchaser if a dealer receives, not later than the prescribed time after receipt by the purchaser of the latest prospectus or any amendment to the prospectus, a notice in writing that the purchaser does not intend to be bound by the agreement of purchase (the "Withdrawal Right").
33. Pursuant to the Legislation, a purchaser of securities to whom a prospectus was required to be sent or delivered in compliance with the Prospectus Delivery Requirements, but was not so sent or delivered, has a right of action for rescission or damages against the dealer who did not comply with the Prospectus Delivery Requirements (the "Right of Action for Non-Delivery").
34. Neither the Withdrawal Right nor the Right of Action for Non-Delivery is workable in the context of an ATM Distribution, because of the impracticability of delivering the Prospectus to a purchaser of Common Shares thereunder.
Prospectus Form Requirements
35. To reflect the fact that the ATM Offering is a continuous distribution, the Prospectus Supplement and any amendment thereto will include the following issuer certificate (with appropriate modifications in respect of the filing of an amendment prescribed by section 2.4 of Appendix A to NI 44-102), such issuer certificate to supersede and replace the issuer certificate in the Shelf Prospectus solely with regard to the ATM Offering:
This short form prospectus, as supplemented by the foregoing, together with the documents incorporated in this prospectus by reference as of the date of a particular distribution of securities offered by this prospectus, will, as of that date, constitute full, true and plain disclosure of all material facts relating to the securities offered by this prospectus as required by the securities legislation of each of the provinces and territories of Canada.
36. The Prospectus Supplement and any amendment thereto will include the following underwriter certificate (with appropriate modifications in respect of the filing of an amendment prescribed by section 2.4 of Appendix A to NI 44-102):
To the best of our knowledge, information and belief, the short form prospectus, as supplemented by the foregoing, together with the documents incorporated in the prospectus by reference as of the date of a particular distribution of securities offered by this prospectus, will, as of that date, constitute full, true and plain disclosure of all material facts relating to the securities offered by this prospectus, as required by the securities legislation of each of the provinces and territories of Canada.
37. A different statement of purchasers' rights than that required by the Legislation is necessary so that the Prospectus Supplement will accurately reflect the relief granted from the Prospectus Delivery Requirement. Accordingly, the Prospectus Supplement will state the following, with the date reference completed:
Securities legislation in certain of the provinces and territories of Canada provides purchasers with the right to withdraw from an agreement to purchase securities and with remedies for rescission or, in some jurisdictions, revision of the price, or damages if the prospectus, prospectus supplements relating to securities purchased by a purchaser and any amendment are not delivered to the purchaser, provided that the remedies are exercised by the purchaser within the time limit prescribed by securities legislation. However, purchasers of securities under an at-the-market distribution by the Issuer will not have the right to withdraw from an agreement to purchase the securities and will not have remedies of rescission or, in some jurisdictions, revision of the price, or damages for non-delivery of the prospectus supplement, the accompanying prospectus and any amendment thereto relating to the securities purchased by the purchaser, because the prospectus relating to securities purchased by such purchaser will not be delivered as permitted under a decision dated [•], 2019 and granted pursuant to National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions.
Securities legislation in certain of the provinces and territories of Canada also provides purchasers with remedies for rescission or, in some jurisdictions, revision of the price or damages if the prospectus, prospectus supplements relating to securities purchased by a purchaser and any amendment contains a misrepresentation, provided that the remedies are exercised by the purchaser within the time limit prescribed by securities legislation. Any remedies under securities legislation that a purchaser of securities under an at-the-market distribution by the Issuer may have against the Issuer or the Agents for rescission or, in some jurisdictions, revision of the price, or damages if the prospectus, prospectus supplements relating to securities purchased by a purchaser and any amendment contain a misrepresentation remain unaffected by the non-delivery and the decision referred to above.
Purchasers should refer to any applicable provisions of securities legislation and the decision referred to above for the particulars of these rights or consult with a legal adviser.
38. The Prospectus Supplement will disclose that, solely with regards to the ATM Offering, the statement prescribed in paragraph 37 above supersedes and replaces the statement of purchasers' rights contained in the Shelf Prospectus.
Decision
The Decision Makers are satisfied that this decision satisfies 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 Exemptions Sought are granted, provided:
(a) at least one of the following is true:
(i) during the 60-day period ending not earlier than 10 days prior to the commencement of an ATM Distribution, the Common Shares have traded, in total, on one or more Marketplaces, as reported on a consolidated market display:
(A) an average of at least 100 times per trading day, and
(B) with an average trading value of at least $1,000,000 per trading day; or
(ii) at the commencement of an ATM Distribution, the Common Shares are subject to Regulation M under the U.S. Exchange Act and are an "actively-traded security" as defined thereunder;
(b) the Issuer does not, during the period that the Shelf Prospectus is effective, distribute by way of one or more ATM Distributions a total market value of Common Shares that exceeds 10% of the aggregate market value of Common Shares, such aggregate market value calculated in accordance with section 9.2 of NI 44-102 and as at the last trading day of the month before the month in which the first ATM Distribution is made;
(c) the Issuer complies with the disclosure requirements set out in paragraphs 27, and 35 through 38 above; and
(d) the Issuer and Agents respectively comply with the representations made in paragraphs 15, and 19 through 26 above.
This decision will terminate on the date that is 25 months from the date on which the receipt for the Shelf Prospectus is issued.
The further decision of the Decision Maker is that the Confidentiality Relief in respect of the Exemptions Sought is granted.
As to the Exemptions Sought from the Prospectus Delivery Requirement and the Prospectus Form Requirements:
"Céline Robichaud-Trifts"Commission MemberFinancial and Consumer Services Commission (New Brunswick)"Vincent L. Duff"Commission MemberFinancial and Consumer Services Commission (New Brunswick)As to the Confidentiality Relief:"Kevin Hoyt"Executive Director of SecuritiesFinancial and Consumer Services Commission (New Brunswick)