First Mining Gold Corp. and Cantor Fitzgerald Canada Corporation
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Application for exemptive relief to permit issuer and underwriter, acting as agent 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 or other Canadian marketplace -- ATM distributions to be made pursuant to shelf prospectus procedures in Part 9 of NI 44-102 Shelf Distributions -- issuer will issue a press release and file agreements 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 entering into of an equity distribution agreement, waiver of confidentiality, or 90 days from the date of the decision.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 71 and 147.
National Instrument 44-101 Short Form Prospectus Distributions, s. 8.1, and Item 20 of Form 44-101F1.
National Instrument 44-102 Shelf Distributions, s. 5.5, items 2 and 3; s. 6.7, Part 9, s. 11.1, and ss. 2.1 and 2.2 of Appendix A.
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions.
August 13, 2019
IN THE MATTER OF THE SECURITIES LEGISLATION OF BRITISH COLUMBIA AND ONTARIO (the Jurisdictions) AND IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS AND IN THE MATTER OF FIRST MINING GOLD CORP. (the Issuer) AND CANTOR FITZGERALD CANADA CORPORATION (the Agent and, together with the Issuer, the Filers)
¶ 1 The securities regulatory authority or regulator in each of the Jurisdictions (Decision Maker) has 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 Exemption Sought):
(a) 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 or its agent 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 Agent or any other registered investment dealer acting on behalf of the Agent as a selling agent (each a Selling Agent) in connection with any at-the-market distribution (as defined in National Instrument 44-102 Shelf Distributions (NI 44-102)) (each, an ATM Distribution and collectively, the ATM Offering) of common shares (Common Shares) of the Issuer in Canada pursuant to one or more substantially identical equity distribution agreements (each, an Equity Distribution Agreement) to be entered into between the Filers;
(b) the requirements to include the statements (the cover page disclosure) specified by items 2 and 3 of section 5.5 of NI 44-102 does not apply to the Base Shelf Prospectus (as defined below);
(c) the requirement to include the following in a prospectus supplement or any amendment thereto does not apply to a Prospectus Supplement (as defined below) or any amendment thereto:
(i) a forward-looking form of issuer certificate 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.
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 made public until the earliest of (i) the date on which the Filers enter into the Equity Distribution Agreement, (ii) the date on which the Filers jointly advise the Decision Makers that there is no longer any need for the Confidential Material to remain confidential, and (iii) 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 British Columbia Securities Commission is the principal regulator for the Application;
(b) the Filers have provided notice that section 4.7(1)(c) of Multilateral Instrument 11 102 Passport System (MI 11-102) is intended to be relied upon in Alberta, Saskatchewan, Manitoba, Québec, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland and Labrador; and
(c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
¶ 2 Terms defined in National Instrument 14-101 Definitions, National Instrument 13-101 System for Electronic Document Analysis and Retrieval (SEDAR), MI 11-102, National Instrument 44-101 Short Form Prospectus Distributions (NI 44-101) or NI 44-102 have the same meaning if used in this decision, unless otherwise defined.
¶ 3 This decision is based on the following facts represented by the Filers:
1. the Issuer is incorporated under the laws of the Province of British Columbia with its head office located in Vancouver, British Columbia;
2. the Issuer is an emerging development company with a diversified portfolio of gold projects in North America and is a reporting issuer or the equivalent under the securities legislation of each of the provinces of Canada and is not in default of securities legislation in any jurisdiction of Canada, except that the cover page disclosure in its Base Shelf Prospectus contained the language set out below in paragraph 36 in addition to the language required by items 2 and 3 of section 5.5 of NI 44-102;
3. the Common Shares are listed on the Toronto Stock Exchange (the TSX);
4. the Agent, a wholly owned subsidiary of Cantor Fitzgerald L.P., is incorporated under the laws of the Province of Nova Scotia with its head office in Toronto, Ontario;
5. Cantor Fitzgerald L.P. is a limited partnership with its head office in New York City, New York;
6. the Agent is registered as an investment dealer under the securities legislation of each of the provinces and territories of Canada, is a member of the Investment Industry Regulatory Organization of Canada, and is a participating organization of the TSX;
7. the Agent is not in default of securities legislation in any jurisdiction of Canada;
Proposed ATM Distributions
8. subject to mutual agreement on terms and conditions, including without limitation, internal committee approvals from the Agent's applicable committees, the Filers propose to enter into Equity Distribution Agreements providing for the sale from time to time of Common Shares by the Issuer through the Agent, as agent, pursuant to ATM Offerings under the base shelf prospectus procedures prescribed by Part 9 of NI 44-102;
9. the Issuer has filed a short form base shelf prospectus pursuant to NI 44-101 and NI 44-102 in each of the provinces of Canada dated June 24, 2019 (the Base Shelf Prospectus) providing for the distribution from time to time of Common Shares, preferred shares, debt securities, subscription receipts, warrants and units comprised of the foregoing; the Base Shelf Prospectus constitutes an "unallocated shelf" within the meaning of Part 3 of NI 44-102;
10. prior to making any ATM Distributions, the Issuer will have filed in each of the provinces of Canada a prospectus supplement describing the terms of the ATM Offering including the terms of the applicable Equity Distribution Agreement and otherwise supplementing the disclosure in the Base Shelf Prospectus (the Prospectus Supplement, and together with the Base Shelf Prospectus as supplemented or amended and including any documents incorporated by reference therein (which shall include any Designated News Release (as defined below)), the Prospectus);
11. the Issuer included in the Base Shelf Prospectus a forward-looking certificate of the Issuer in the form prescribed by section 1.1 of Appendix A to NI 44-102;
12. if an Equity Distribution Agreement is entered into, the Issuer will immediately:
(a) issue and file a news release to announce the Equity Distribution Agreement pursuant to section 3.2 of NI 44-102 for an expected distribution of equity securities indicating that the Base Shelf Prospectus and the Prospectus Supplement have been filed on SEDAR, and will specify where and how purchasers of Common Shares under the ATM Offering may obtain copies; and
(b) file a copy of the Equity Distribution Agreement on SEDAR;
13. under the proposed Equity Distribution Agreements, the Issuer may conduct one or more ATM Offerings subject to the 10% limitation set out in subsection 9.1(1) of NI 44-102;
14. the Issuer will conduct ATM Distributions through the Agent, as agent, directly or through a Selling Agent, only through the TSX or any other recognized Canadian "marketplace" within the meaning of National Instrument 21-101 Marketplace Operation upon which the Common Shares are listed, quoted or otherwise traded (a Marketplace);
15. subject to execution of the Equity Distribution Agreement, the Agent will act as the sole agent on behalf of the Issuer in connection with the sale of Common Shares on the TSX or another Marketplace through methods constituting ATM Distributions, and will be the only person or company paid an agency fee or commission by the Issuer in connection with such sales; the Agent will sign an agent's certificate, in the form set out in paragraph 33 below, in the Prospectus Supplement;
16. the Agent will effect ATM Distributions on the TSX or another Marketplace, either itself or through a Selling Agent; if sales are effected through a Selling Agent, the Selling Agent will be paid a customary seller's commission for effecting the trades on the Agent's behalf; a purchaser's rights and remedies under the Legislation against the Agent, as agent of an ATM Distribution through a Marketplace will not be affected by a decision to effect the sale directly or through a Selling Agent;
17. the aggregate number of Common Shares sold on one or more Marketplaces pursuant to an ATM Distribution on any trading day will not exceed 25% of the trading volume of the Common Shares on all Canadian Marketplaces on that day;
18. each Equity Distribution Agreement will provide that, at the time of each sale of Common Shares pursuant to an ATM Offering, the Issuer will represent to the Agent that the Prospectus contains full, true and plain disclosure of all material facts relating to the Issuer and the Common Shares being distributed; the Issuer will therefore be unable to proceed with sales pursuant to an ATM Offering 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;
19. after the date of the Prospectus Supplement and before the termination of any ATM Offering, 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);
20. if, after the Issuer delivers a notice to the Agent directing the Agent to sell Common Shares on the Issuer's behalf pursuant to the Equity Distribution Agreement (a Sell Notice), the sale of the Common Shares specified in the Sell Notice, taking into consideration prior sales under ATM Offerings, would constitute a material fact or material change, the Issuer will suspend sales under the Equity Distribution Agreement until either (i) it has disseminated and filed a Designated News Release, in the case of a material fact, or has filed a material change report or amended the Prospectus, or (ii) circumstances have changed so that the sales would no longer constitute a material fact or material change;
21. 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 Issuer may impose with respect to the particular ATM Distribution, (ii) the percentage of outstanding Common Shares that the number of Common Shares proposed to be sold pursuant to the Sell Notice represents, (iii) sales under prior Sell Notices, (iv) trading volume and volatility of the Common Shares, (v) recent developments in the business, affairs and capital structure of the Issuer and (vi) prevailing market conditions generally;
22. the Agent will monitor closely the market's reaction to trades made on the TSX or another Marketplace pursuant to an ATM Offering in order to evaluate the likely market impact of future trades; the Agent has experience and expertise in managing sell orders to limit downward pressure on the Common Share price; if the Agent has concerns as to whether a particular sell order placed by the Issuer may have a significant effect on the market price of the Common Shares, the Agent will recommend against effecting the trade at that time; it is in the interests of both the Issuer and the Agent to minimize the market impact of sales under an ATM Offering;
Disclosure of Common Shares Sold in ATM Offering
23. within seven calendar days after the end of each calendar month during which the Issuer conducts an ATM Distribution, the Issuer will disclose in a report filed on SEDAR the number and average selling price of the Common Shares distributed through an ATM Distribution, and the commission and gross and net proceeds for such sales;
24. the Issuer will disclose the number and average price of Common Shares sold pursuant to an ATM Offering under the Prospectus, as well as gross proceeds, commission and net proceeds, during a particular calendar year in its annual financial statements and management's discussion and analysis and during a particular interim period, in its interim financial statements and management's discussion and analysis for such interim period filed on SEDAR;
Prospectus Delivery Requirement
25. pursuant to the Prospectus Delivery Requirement, a dealer effecting a trade of securities offered under a prospectus 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;
26. delivery of a prospectus is not practicable in the circumstances of an ATM Distribution, as the Agent or any Selling Agent, as applicable, effecting the trade will not know the identity of the purchasers;
27. the Prospectus (together with all documents incorporated by reference therein) will be filed and readily available electronically via SEDAR to all purchasers under ATM Distributions; as stated in paragraph 12 above, the Issuer will issue a news release that specifies where and how copies of the Base Shelf Prospectus and the Prospectus Supplement can be obtained;
28. the liability of an issuer or an underwriter (or 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, because purchasers of securities offered by a prospectus during the period of distribution have a right of action for damages or rescission without regard to whether or not the purchaser relied on the misrepresentation or in fact received a copy of the prospectus;
Withdrawal Right and Right of Action for Non-Delivery
29. pursuant to the Legislation, an agreement to purchase a security in respect of a distribution to which the prospectus requirement applies is not binding on the purchaser if the dealer from whom the purchaser purchases the security receives, not later than the prescribed time following 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);
30. pursuant to the Legislation, a purchaser of a security to whom a prospectus was required to be sent or delivered in compliance with the Prospectus Delivery Requirement, 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 Requirement (the Right of Action for Non-Delivery);
31. neither the Withdrawal Right nor the Right of Action for Non-Delivery is workable in the context of an ATM Offering because of the impracticability of delivering the Prospectus to a purchaser of Common Shares thereunder;
Modified Certificates and Statements
32. to reflect the fact that an 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 Base Shelf Prospectus solely with regard to the ATM Offering:
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 the prospectus and this supplement, will, as of that date, constitute full, true and plain disclosure of all material facts relating to the securities offered by the prospectus and this supplement, as required by the securities legislation of each of the provinces of Canada.
33. to reflect the fact that an ATM Offering is a continuous distribution, 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 the prospectus and this supplement, will, as of that date, constitute full, true and plain disclosure of all material facts relating to the securities offered by the prospectus and this supplement, as required by the securities legislation of each of the provinces of Canada.
34. a different statement of purchasers' rights than that required by the Legislation is necessary so that the Prospectus 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 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 Common Shares under an "at-the-market" distribution by the Issuer will not have the right to withdraw from an agreement to purchase the Common Shares and will not have remedies of rescission or, in some jurisdictions, revisions of the price, or damages for non-delivery of the prospectus supplement, the accompanying prospectus and any amendment thereto relating to Common shares purchased by such purchaser, because the prospectus supplement, the accompanying prospectus and any amendment thereto relating to the Common Shares purchased by such purchaser will not be delivered as permitted under a decision document 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 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 in the jurisdictions that a purchaser of Common Shares under an "at-the-market" distribution by the Issuer may have against the Issuer or the Agent for rescission, or in some jurisdictions, revisions of the price, or damages if the prospectus supplement, the accompanying prospectus and any amendment thereto relating to securities purchased by a purchaser and any amendment contain a misrepresentation will remain unaffected by the non-delivery of the prospectus and the decision referred to above.
Purchasers should refer to any applicable provisions of the securities legislation of the purchaser's province and the decision document referred to above for the particulars of these rights or consult with a legal advisor.
35. the Prospectus Supplement will disclose that, solely with regards to the ATM Offering, the statement prescribed in paragraph 34 above supersedes and replaces the statement of purchasers' rights contained in the Base Shelf Prospectus; and
36. the statements required by subsections 5.5(2) and (3) of NI 44-102 included in the Base Shelf Prospectus, are qualified by the additional words "except in cases where an exemption from such delivery requirement has been obtained".
¶ 4 Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
The decision of the Decision Makers under the Legislation is that the Exemption Sought is granted, provided that:
(a) the Issuer complies with the disclosure requirements set out in paragraphs 23 and 24 and 32 through 36 above; and
(b) the Issuer complies with the representations made in paragraphs 2, 9 through 14 and 17 through 21 and the Agent complies with the representations made in paragraphs 6, 7, 13 through 17 and 22.
This decision will terminate 25 months after the issuance of the receipt for the Base Shelf Prospectus.
The further decision of the Decision Makers is that the Confidentiality Relief is granted.