QMX Gold Corporation
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., ss.1(10)(a)(ii).
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 QMX GOLD CORPORATION (the "Filer")
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.
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this order, unless otherwise defined.
This order is based on the following facts represented by the Filer:
1. The Filer is a corporation existing under the Business Corporations Act (Ontario) (the "OBCA") and, until promptly after the closing of the Arrangement (defined below), its head office was located at 77 King Street West, TD North Tower, Suite 700, Toronto, Ontario, M5K 1G8. After the closing of the Arrangement and the Filer becoming a wholly-owned subsidiary of Eldorado Gold Corporation (the "Purchaser"), the Filer's head office was changed to 11th Floor -- 550 Burrard Street, Vancouver, British Columbia, V6C 2B5.
2. The Filer is a mining company involved in the mining, exploration and development of mineral properties in Québec.
3. The Filer is a reporting issuer in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador.
4. The Purchaser is a corporation existing under the Canada Business Corporations Act. The common shares of the Purchaser are listed on the Toronto Stock Exchange under the symbol "ELD" and on the New York Stock Exchange under the symbol "EGO". The Purchaser is a reporting issuer in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador.
5. The Filer and the Purchaser entered into an arrangement agreement dated January 20, 2021 (the "Arrangement Agreement") and issued a joint news release on January 21, 2021 publicly announcing the Arrangement Agreement.
6. Immediately prior to the Effective Time (defined below), the Filer had the following issued and outstanding securities: (i) 438,026,744 common shares of the Filer (the "Filer Shares"), of which the Purchaser already owned 68,125,000 Filer Shares; (ii) 22,610,000 options to purchase Filer Shares (the "Filer Options"); and (iii) 11,900,000 warrants to purchase Filer Shares (the "Filer Warrants"). The Filer Shares were listed on the TSX Venture Exchange (the "TSXV") under the symbol "QMX". No other securities of the Filer were listed on any exchange.
7. The Filer distributed the meeting materials (which included, among other things, the information circular, notice of meeting, notice of application and the interim order) on March 1, 2021 to the holders of the Filer Shares in connection with the special meeting of holders of Filer Shares that took place on March 23, 2021 to consider the statutory plan of arrangement under the OBCA pursuant to the Arrangement Agreement (the "Arrangement") in accordance with the interim order of the Ontario Superior Court of Justice rendered February 18, 2021 (the "Interim Order"). The meeting materials were not delivered to holders of Filer Options or Filer Warrants as these holders do not have the right to receive notice of meetings pursuant to the Interim Order and the governing documents in respect of the Filer Options and Filer Warrants.
8. On March 23, 2021, at the special meeting of holders of Filer Shares, holders of the Filer Shares approved the Arrangement with (i) 98.59% of the votes cast by shareholders of the Filer being in favour of the Arrangement and (ii) excluding votes cast by the Purchaser and other interested parties in accordance with the minority approval requirements for a business combination under Multilateral Instrument 61-101 Protection of Minority Security Holders in Special Transactions, 98.11% of the votes cast by shareholders of the Filer being in favour of the Arrangement.
9. On April 1, 2021, the Filer received a final order from the Ontario Superior Court of Justice approving the Arrangement.
10. At 12:01 a.m. (Eastern time) on April 7, 2021 (the "Effective Time"), the Purchaser acquired all of the Filer Shares pursuant to the Arrangement and the Filer became a wholly-owned subsidiary of the Purchaser.
11. Pursuant to the Arrangement, among other things, the following occurred as of the Effective Time:
(i) each Filer Share, other than the Filer Shares held by the Purchaser, was transferred to the Purchaser in exchange for $0.075 in cash and 0.01523 of a common share in the Purchaser (collectively, the "Arrangement Consideration");
(ii) each Filer Option automatically vested and was transferred to, and cancelled by, the Filer in exchange for a certain cash payment;
(iii) each Filer Warrant was adjusted, in accordance with their terms, to become exercisable solely for the Arrangement Consideration.
12. The Filer Shares were delisted from the TSXV as of the close of business on April 13, 2021. As such, as of the date hereof, none of the securities of the Filer are currently listed for trading on any stock exchange.
13. The only outstanding securities of the Filer held by persons other than the Purchaser are the Filer Warrants.
14. The Filer is unable to determine the number of holders of the Filer Warrants, which may not be beneficially owned, directly or indirectly, by fewer than 15 holders of Filer Warrants in each of the jurisdictions of Canada and fewer than 51 holders of Filer Warrants in total worldwide. As a result, the Filer is not eligible to surrender its status as a reporting issuer pursuant to the simplified procedure in National Policy 11-206 Process for Cease to be a Reporting Issuer Applications. The Filer has made diligent enquiry (the "Investigation") to determine the number and jurisdiction of the beneficial holders of the Filer Warrants. The Investigation included the procurement of a share range report from Broadridge. Based on the Investigation, to the Filer's knowledge, there are 4 beneficial holders of the Filer Warrants. However, the Filer Warrants, by their terms, are exercisable for only the Arrangement Consideration, being a fraction of a Purchaser common share, together with a certain cash payment from the Purchaser. No Filer Shares or other securities of the Filer are issuable upon exercise of any Filer Warrants.
15. 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 or holders of the Filer Warrants will not be prejudiced by the Order Sought.
16. 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.
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 the Filer 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 the securities legislation in any jurisdiction as a reporting issuer.
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.
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.
DATED at Toronto on this 17th day of May, 2021.
Ontario Securities Commission
Ontario Securities Commission
OSC File #: 2021/0244