Gold X Mining Corp.
Headnote
National Policy 11-206 Process for Cease to be a Reporting Issuer Applications -- Application for an order that the issuer is not a reporting issuer under applicable securities laws -- issuer has outstanding warrants exercisable into securities of acquirer and another reporting issuer -- warrant holders no longer require public disclosure in respect of the issuer -- relief granted.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10)(a)(ii).
July 23, 2021
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction) AND IN THE MATTER OF THE PROCESS FOR CEASE TO BE A REPORTING ISSUER APPLICATIONS AND IN THE MATTER OF GOLD X MINING CORP. (the Filer)
ORDER
Background
The principal regulator in the Jurisdiction has received an application from the Filer for an order under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) that the Filer has ceased to be a reporting issuer in all jurisdictions of Canada in which it is a reporting issuer (the Order Sought).
Under the Process for Cease to be a Reporting Issuer Applications (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application, and
(b) the Filer has provided notice that subsection 4C.5(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador.
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this order, unless otherwise defined.
Representations
This order is based on the following facts represented by the Filer:
1. The Filer was amalgamated and currently exists under the laws of the Province of British Columbia. The Filer is a reporting issuer or the equivalent in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador.
2. The head office of the Filer is located at 401 Bay Street, Suite 2400, PO Box 15, Toronto, Ontario M5H 2Y4 and the registered address of the Filer is located at 1166 Alberni Street, Suite 1604, Vancouver, British Columbia V6E 3Z3.
3. Gran Colombia Gold Corp. (the Purchaser) was amalgamated and exists under the laws of the Province of British Columbia. The common shares of the Purchaser (the Purchaser Shares) are listed on the Toronto Stock Exchange (the TSX) under the symbol "GCM". The Purchaser is a reporting issuer or the equivalent in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador.
4. At 12:01 a.m. (Pacific Time) on June 4, 2021 (the Effective Time), the Purchaser completed the acquisition of all of the issued and outstanding common shares (the Filer Shares) of the Filer not already owned by the Purchaser by way of a statutory plan of arrangement (the Arrangement) under the Business Corporations Act (British Columbia) pursuant to an arrangement agreement between the Filer and the Purchaser dated March 14, 2021.
5. Immediately prior to the Effective Time, the Filer had the following securities issued and outstanding: (i) 62,424,202 Filer Shares; (ii) 14,020,215 share purchase warrants (the Filer Warrants), each exercisable to purchase one Filer Share; and (iii) 133,750 stock options (the Filer Options), each exercisable to purchase one Filer Share. The Filer Shares were listed on the TSX Venture Exchange (the TSXV) under the symbol "GLDX". No other securities of the Filer were listed on any exchange.
6. The Arrangement was approved by 99.7% of the votes cast by shareholders of the Filer (excluding the votes of certain shareholders of the Filer in accordance with Multilateral Instrument 61-101 -- Protection of Minority Security Holders in Special Transactions) at the shareholder meeting held on May 27, 2021 (the Meeting).
7. The Filer distributed the meeting materials (the Meeting Materials) in respect of the Meeting (which included, among other things, the notice of meeting and the management information circular) on April 27, 2021 to the holders of the Filer Shares in accordance with the interim order of the Supreme Court of British Columbia dated April 22, 2021 (the Interim Order). The Filer did not distribute the Meeting Materials to holders of Filer Warrants or Filer Options as such holders did not have the right to receive the Meeting Materials pursuant to the Interim Order or the governing documents in respect of the Filer Warrants and the Filer Options.
8. The Supreme Court of British Columbia granted the final order approving the Arrangement on June 1, 2021.
9. Pursuant to the Arrangement:
(a) the Purchaser acquired all of the outstanding Filer Shares not already held by the Purchaser, each holder of Filer Shares (other than the Purchaser) became entitled to receive 0.6948 of a Purchaser Share for each Filer Share so held (the Exchange Ratio) immediately prior to the Effective Time and the Filer became a wholly-owned subsidiary of the Purchaser;
(b) all Filer Warrants outstanding immediately prior to the Effective Time remained outstanding immediately following the Effective Time and any unexercised Filer Warrants entitle the holders thereof to receive, upon exercise and for the same aggregate consideration, Purchaser Shares in accordance with the Exchange Ratio, on and subject to the terms and conditions of such Filer Warrants; and
(c) all Filer Options not exercised prior to the Effective Time were terminated at the Effective Time without payment of any consideration to the holders of such terminated Filer Options.
10. In connection with the Arrangement, the Filer Shares were delisted from the TSXV as of the close of business on June 7, 2021.
11. The Filer issued a news release on March 15, 2021 announcing the Arrangement and issued a news release on June 4, 2021 announcing the completion of the Arrangement.
12. To the best of the Filer's knowledge and based on its diligent enquiry to determine the number and jurisdiction of the beneficial holders of the Filer Warrants, including a review of the registers of holders of the Filer Warrants maintained by the Filer, as of the date hereof, there are a maximum of 164 beneficial holders of Filer Warrants, 44 of which are resident in Ontario, 68 of which are resident in British Columbia, 5 of which are resident in Alberta, 1 of which is resident in Manitoba, 11 of which are resident in Québec, 22 of which are resident in the United States of America and 13 of which are resident in other foreign jurisdictions.
13. The only outstanding securities of the Filer held by persons other than the Purchaser are the Filer Warrants. No Filer Shares or other securities of the Filer are issuable upon exercise of any Filer Warrants.
14. The Filer is not required to remain a reporting issuer in any jurisdiction under any contractual arrangement between the Filer and the holders of the Filer Warrants and holders of the Filer Warrants will not be prejudiced by the Order Sought.
15. The Filer cannot rely on the exemption available in Section 13.3 of National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102) for issuers of exchangeable securities because the Filer Warrants are not "designated exchangeable securities" as defined in NI 51-102. The Filer Warrants do not provide their holders with voting rights in respect of the Purchaser.
16. The Filer cannot apply to cease to be a reporting issuer pursuant to the simplified procedure under section 19 of National Policy 11-206 Process for Cease to be a Reporting Issuer Applications as the Filer Warrants are not beneficially owned, directly or indirectly, by fewer than 15 securityholders in each of the jurisdictions of Canada and fewer than 51 securityholders in total worldwide.
17. The Filer is not an OTC reporting issuer under Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets.
18. No securities of the Filer, including debt securities, are traded in Canada or another country on a marketplace as defined in National Instrument 21-101 Marketplace Operation or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported.
19. The Filer is not a reporting issuer in any jurisdiction of Canada other than the jurisdictions identified in this order. The Filer is applying for an order that it has ceased to be a reporting issuer in all of the jurisdictions of Canada in which it is a reporting issuer.
20. The Filer and the Purchaser are not in default of any of their obligations under securities legislation in any jurisdiction.
21. The Filer has no intention to seek public financing by way of an offering of securities and has no intention of issuing any securities other than the issuance of securities to the Purchaser or its affiliates.
22. Upon the granting of the Order Sought, the Filer will not be a reporting issuer or the equivalent in any jurisdiction of Canada.
Order
The principal regulator is satisfied that the order meets the test set out in the Legislation for the principal regulator to make the order.
The decision of the principal regulator under the Legislation is that the Order Sought is granted.