Research Now PLC et al. - s. 74(1)
Headnote
Relief from the prospectus requirements in connection with the first trade of shares distributed to residents of Canada in connection with an agreement of sale and purchase -- issuer not a reporting issuer in any jurisdiction of Canada -- the conditions of the exemption in section 2.14 of National Instrument 45-102 Resale of Securities not fully met as resident of Canada own more than 10% of the total number of shares -- relief granted subject to conditions, including that the first trade must be made through an exchange or market outside of Canada or to a person or company outside of Canada.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 53, 74(1).
Rules Cited
National Instrument 45-102 Resale of Securities.
December 11, 2007
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, CHAPTER S. 5 AS AMENDED
(the Act)
AND
IN THE MATTER OF
RESEARCH NOW PLC
(the Corporation)
AND
THE CANADIAN SHAREHOLDERS
OF THE CORPORATION BEING
THE KARRY TRUST, THE VISSER TRUST,
WILLIAM JEFFREY KARRY, JOHN VISSER,
LAUREL KARRY, MICHELLE VISSER AND
BERRYCOVE ESTATES INC.
(collectively the Canadian Shareholders)
RULING
(Subsection 74(1) of the Act)
UPON the application of Research Now Plc (the Corporation) and the Canadian Shareholders of the Corporation to the Ontario Securities Commission (the Commission) for a ruling pursuant to subsection 74(1) of the Act that section 53 of the Act will not apply to first trades, as such term is used in NI 45-102 -- Resale of Securities (NI 45-102), of the Earn-Out Shares (as defined below) issued to the Canadian Shareholders by the Corporation in respect of the purchase on February 6, 2007, of the whole of the issued and outstanding share capital (the Samplenet Shares) of Samplenet e-Research Solutions Inc. (Samplenet) from the Canadian Shareholders, among others, provided that at the date of the first trade of the Earn-Out Shares, the Corporation is not a reporting issuer in any jurisdiction in Canada where such concept exists and the first trade of the Earn-Out Shares is made on the AIM market of the London Stock Exchange (AIM) or on another exchange or market outside of Canada or to a person or company outside of Canada.
AND UPON considering the application and the recommendation of staff to the Commission;
AND UPON the Corporation and the Canadian Shareholders having represented to the Commission that:
1. The Corporation is a company incorporated and existing under the laws of England and Wales with number 3975073 whose registered office is at Elizabeth House, 8th Floor, 39 York Road, London SE1 7NQ.
2. The authorized capital of the Corporation consists of £500,000 divided into 25,000,000 ordinary shares (each a Share and collectively the Shares) of which, as of March 19, 2007, 14,261,457 Shares (including the Initial Consideration Shares, as defined below) were issued and admitted to trading on AIM, a market operated by the London Stock Exchange.
3. The Corporation is not a reporting issuer or its equivalent in any jurisdiction in Canada, nor are any of its securities listed or posted for trading on any stock exchange in Canada or elsewhere other than on AIM.
4. The Corporation has no present intention of becoming a reporting issuer in any jurisdiction in Canada.
5. As of March 19, 2007, the Corporation had approximately 189 registered shareholders, including the Canadian Shareholders, many of which appear to be nominee holders.
6. Except for the Canadian Shareholders, the Corporation is not aware of any Shares being held by a broker, dealer, bank, trust company or nominee for the account of residents of Canada, of any residents of Canada beneficially owning Shares, or of any holders of Shares having a principal place of business in Canada.
7. The Corporation and each of the holders of the Samplenet Shares (collectively the Sellers), entered into an agreement of sale and purchase dated January 30, 2007 (the Purchase Agreement) providing for the sale by the Sellers to the Corporation of all of the Samplenet Shares for consideration which included cash and Shares.
8. On February 6, 2007 (the Initial Distribution Date), pursuant to the terms of the Purchase Agreement, the Corporation paid, as consideration for the Samplenet Shares, cash to the Sellers and issued 1,115,322 Shares (the Initial Consideration Shares) to those holders of Samplenet Shares (the Canadian Shareholders) entitled to the Initial Consideration Shares pursuant to the terms of the Purchase Agreement. Initial Consideration Shares were not distributed to anyone other than the Canadian Shareholders.
9. The Initial Consideration Shares represented approximately 8% of the issued and outstanding Shares of the Corporation on the Initial Distribution Date after giving effect to the issuance of such Shares.
10. The seven Canadian Shareholders, each resident in the Province of Ontario, represent less than 4% of the registered holders of the Shares of the Corporation.
11. Of the seven Canadian Shareholders, approximately 80% of the Initial Consideration Shares and the Earn-Out Shares issued to the Canadian Shareholders have been, or will be, as the case may be, issued to two sets of spouses and their respective family trusts, with the remaining Initial Consideration Shares and Earn-Out Shares having been, or to be issued, as the case may be, to a single corporate shareholder.
12. Pursuant to the terms of the Purchase Agreement, the Corporation may, upon the achievement of certain performance targets by the Corporation (relating to the performance of the Samplenet business) or alternatively the occurrence of certain triggering events in respect of the Corporation, be required to pay additional consideration, subject to a maximum amount, to the Sellers for the Samplenet Shares, by way of an earn-out (the Earn-Out).
13. The Earn-Out, if payable, will be paid in respect of the fiscal years of the Corporation ending October 31, 2007 and October 31, 2008 and shall be determined and paid within approximately six months of October 31, 2007 and October 31, 2008, respectively, in respect of such fiscal years (each an Earn-Out Distribution Date) or earlier in one or both cases if a triggering event occurs.
14. The Corporation may, in its sole discretion, pay up to 50% of the Earn-Out payable in respect of the 2007 and 2008 fiscal years, respectively, by issuing additional Shares to the Canadian Shareholders (the Earn-Out Shares). The Corporation may, alternatively, elect to pay cash in respect of more than 50% of the Earn-Out payable in respect of each of the 2007 and 2008 fiscal years, respectively.
15. Pursuant to the terms of the Purchase Agreement, the Initial Consideration Shares and the Earn-Out Shares issued to the Canadian Shareholders will be subject to:
(a) a one-year lock-up period following the relevant distribution date or Earn-Out Distribution Date, as the case may be, on which they were issued; and
(b) a contractual orderly marketing arrangement for a second year, with trades being required to be made through a broker nominated by the Corporation and requiring that the broker act in good faith with a view to maintaining an orderly market in the Shares, and in accordance with all applicable securities laws.
16. All of the issued Shares are admitted to trading on AIM. There is no market for the Shares in Canada and none is expected to develop. Accordingly, any first trade of the Initial Consideration Shares or Earn-Out Shares is expected to be made on AIM or another exchange or market outside of Canada (if the Shares became listed on any such other exchange or market) in accordance with the rules and regulations of such foreign market or to a person or company outside of Canada.
17. The Earn-Out Shares will be and the Initial Distribution Shares were distributed under the prospectus exemption in Section 2.16(2) of National Instrument 45-106 -- Prospectus and Registration Exemptions (NI 45-106) and the first trades of the Initial Consideration Shares are expected to meet the eligibility requirements for the exemption in Section 2.14(1) of NI 45-102.
18. In the absence of an order granting relief, the first trade in the Earn-Out Shares by any of the Canadian Shareholders will be deemed a distribution pursuant to NI 45-102, unless, among other things, the Corporation has been a reporting issuer for four months immediately proceeding the trade in one of the jurisdictions set forth in Appendix B to NI 45-102.
19. The first trade of the Earn-Out Shares will be deemed to be a distribution under NI 45-102 if the Corporation is not a reporting issuer in any jurisdiction in Canada
20. Unless the Corporation becomes a reporting issuer, it will meet all eligibility criteria for the exception provided in Section 2.14(1) of NI 45-102 except that residents of Canada may own, at one or more of the Earn-Out Distribution Dates, more than 10% of the outstanding Shares.
21. The Corporation is under no obligation to file a prospectus for the Earn-Out Shares and the Earn-Out Shares may as a result be subject to resale restrictions that may never expire.
22. Each of the Canadian Shareholders will receive copies of all shareholder materials provided to all other holders of Shares as required by the rules of the London Stock Exchange. The Corporation will be subject to reporting obligations under the rules of the London Stock Exchange.
UPON the Commission being satisfied that to do so would not be prejudicial to the public interest.
IT IS RULED, pursuant to subsection 74(1) of the Act that Section 53 of the Act does not apply to the first trades of the Earn-Out Shares, provided that at the date of the first trade of the Earn-Out Shares by the Canadian Shareholders, the Corporation is not a reporting issuer in any jurisdiction in Canada where such concept exists and the first trade of the Earn-Out Shares is made on AIM or on another exchange or market outside of Canada or to a person or company outside of Canada.
DATED December 11th, 2007