Nomad Royalty Company Ltd.
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 acquiror -- 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).
DÉCISION No: 2022-IC-1049773
No dossier SEDAR: 7533
August 30, 2022
[TRANSLATION]
IN THE MATTER OF THE SECURITIES LEGISLATION OF QUÉBEC AND ONTARIO (the "Jurisdictions") AND IN THE MATTER OF THE PROCESS FOR CEASE TO BE A REPORTING ISSUER APPLICATIONS AND IN THE MATTER OF NOMAD ROYALTY COMPANY LTD. (the "Filer")
ORDER
Background
The securities regulatory authority or regulator in each of the Jurisdictions (Decision Maker) has received an application from the Filer for an order under the securities legislation of the Jurisdictions (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 dual application):
(a) the Autorité des marchés financiersis the principal regulator for this application;
(b) the Filer has provided notice that subsection 4C.5(1) of Regulation 11-102 Passport System, CQLR c V-1.1, r 1 (Regulation 11-102) is intended to be relied upon in each of British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador; and
(c) this order is the order of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Interpretation
Terms defined in Regulation 14-101 respecting Definitions, CQLR c V-1.1, r 3, Regulation 11-102 and, in Québec, in Regulation 14-501Q on definitions, CQLR c V-1.1, r 4 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 is a corporation governed by the Canada Business Corporations Act, RSC 1985, c C-44 (the CBCA), after having previously been continued from the British Columbia Business Corporation Act, SBC 2002 c 57 (the BCBCA) on December 20, 2019. Its head office is located in Québec.
2. On May 1, 2022, the Filer and Sandstorm Gold Ltd. (the Purchaser) entered into an arrangement agreement (the Arrangement Agreement) providing for, among other things, the acquisition by the Purchaser of all of the issued and outstanding common shares of the Filer (the Filer Shares), by way of a plan of arrangement under the CBCA (the Arrangement).
3. The Arrangement was completed on August 15, 2022.
4. The Purchaser is a reporting issuer in all of the provinces and territories of Canada. Its head office is located in British Columbia. The Purchaser's common shares are listed on the Toronto Stock Exchange (TSX) and the New York Stock Exchange (NYSE).
5. The Filer is a reporting issuer in all of the provinces and territories of Canada.
6. The Arrangement was approved by the shareholders of the Filer at a special meeting of the shareholders held on August 9, 2022 (the Meeting) by 99.73% of the votes cast by shareholders entitled to vote at the Meeting, excluding the votes cast by certain persons required to be excluded pursuant to Regulation 61-101 respecting Protection of Minority Security Holders in Special Transactions, CQLR c V-1.1, r 33 and by the Superior Court of Québec during a final hearing held on August 12, 2022.
7. The full details of the Arrangement and the intention of the Filer to make an application to cease to be a reporting issuer are contained in a management proxy circular of the Filer dated July 11, 2022, a copy of which (in English only) is available under the Filer's profile on SEDAR at www.sedar.com.
8. Pursuant to the Arrangement:
(a) on August 15, 2022, the Purchaser acquired the Filer Shares in exchange for 1.21 common shares of the Purchaser (the Purchaser Shares) per one Filer Share; and
(i) the holders of such acquired Filer Shares have ceased to have any rights as holders of the Filer Shares;
(ii) the names of such holders have been removed from the register of holders of the Filer Shares maintained by or on behalf of the Filer; and
(iii) the Purchaser has been recorded as the holder of the Filer Shares so transferred and the legal and beneficial owner thereof.
(b) each holder of the Filer's restricted share units (the RSUs), whether or not vested, received a cash payment for each RSU;
(c) each holder of the Filer's performance share units (the PSUs), whether or not vested, received a cash payment for each PSU;
(d) each holder of the Filer's deferred share units (the DSUs) received a cash payment for each DSU; and
(e) each holder of any stock options to acquire the Filer Shares, whether or not vested, received in exchange for each Filer stock option a fully vested stock option from the Purchaser to purchase from the Purchaser a number of Purchaser Shares calculated according to the terms provided in the Arrangement plan attached as Schedule A to the Arrangement Agreement.
9. The authorized capital of the Filer consists of an unlimited number of the Filer Shares and an unlimited number of preferred shares issuable in one or more series. As of the date hereof, there are 61,469,857 shares outstanding, and no preferred shares issued and outstanding. All the Filer Shares are held by the Purchaser. The Filer Shares are listed on the TSX, the NYSE and the Frankfurt Stock Exchange (FSE).
10. The Filer Shares were delisted from the TSX as at the close of business on August 16, 2022, from the FSE as at the close of business on August 17, 2022 and from the NYSE as at the close of business on August 25, 2022. The Filer is no longer required to comply with the continuous disclosure requirements under Section 15(d) of the Securities Exchange Act of 1934. Pursuant to Rule 12h-3 under the U.S. Securities Exchange Act of 1934, the Filer's duty to file reports under the Act of 1934 were suspended immediately upon the filing of Form 15. Accordingly, the Filer is no longer required to comply with any of the continuous disclosure requirements in the United States.
11. As at the date hereof, there are 21,991,846 warrants to purchase common shares of the Filer issued and outstanding (the Warrants) entitling the holders thereof (each, a Warrant Holder), upon the exercise of each Warrant to subscribe to Purchaser Shares.
12. The Warrants registered on the TSX were delisted from the TSX at the close of business on August 16, 2022.
13. The Warrants are held by approximately 1,670 Warrant Holders, which includes the beneficial Warrant Holders as at June 17, 2022, and the registered Warrant Holders as at August 12, 2022, residing in the following jurisdictions:
(a) 136 in Ontario;
(b) 78 in Alberta;
(c) 201 in British Columbia;
(d) 36 in Québec;
(e) 10 in Saskatchewan;
(f) 10 in Manitoba;
(g) 6 in New Brunswick;
(h) 6 in Nova Scotia;
(i) 1 in Newfoundland and Labrador;
(j) 1 in the Northwest Territories;
(k) 1,143 in the United States; and
(l) 42 in other foreign jurisdictions (other than the United States).
14. Upon completion of the Arrangement, the Warrants may be exercisable only for Purchaser Shares and may no longer be exercisable for Filer Shares.
15. Under the Arrangement, the Purchaser is obligated to meet the Filer's obligations upon exercise of the Warrants and such number of Purchaser Shares have been reserved for issuance.
16. The Filer is not required to remain a reporting issuer in any jurisdiction in Canada under any contractual arrangement between the Filer and the Warrant Holders.
17. The Filer cannot rely on the simplified procedure set out in section 19 of National Policy 11-206 respecting Process for Cease to be a Reporting Issuer Applications (National Policy 11-206) as the Filer's outstanding securities are beneficially owned, directly or indirectly, by more than 15 securityholders in each of the jurisdictions of Canada and more than 51 securityholders in total worldwide. Moreover, the Filer is unable to rely on the modified procedure set out in National Policy 11-206 as the Filer is a corporation existing under the CBCA and does not meet the criteria listed in Section 20 of National Policy 11-206 in respect of foreign issuers.
18. The Filer has no intention to seek a financing in the future by issuing any further securities to the public and has no intention of issuing any securities other than the issuance of securities to the Purchaser or its affiliates.
19. The Filer is not in default of securities legislation in any jurisdiction in Canada, except for the filing of the Filer's condensed consolidated interim financial statements for the three and six months ended June 30, 2022 and 2021, the Filer's management's discussion and analysis for the three and six months ended June 30, 2022 and the corresponding certification of interim filings of the Chief Executive Officer and Chief Financial Officer of the Filer under Form F2 of Regulation 52-109 respecting Certification of Disclosure in Issuers' Annual and Interim Filings, CQLR c V-1.1, r 27.
20. The Filer is not an OTC reporting issuer under Regulation 51-105 respecting Issuers Quoted in the U.S. Over-the-Counter Markets, CQLR c V-1.1, r 24.1.
21. No securities of the Filer, including debt securities, are traded in Canada or another country on a marketplace as defined in Regulation 21-101 respecting Marketplace Operation, CQLR c V-1.1, r 5, or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported.
22. Upon granting the Order Sought, the Filer will no longer be a reporting issuer in any of the provinces of Canada.
Order
Each of the Decision Makers is satisfied that the order meets the test set out in the Legislation for the Decision Maker to make the order.
The decision of the Decision Makers under the Legislation is that the Order Sought is granted.