Premier American Uranium Inc. (Re), 2023 CanLII 111769

Ontario Commission des 22nd Floor 22e étage Securities valeurs mobilières 20 Queen Street West 20, rue queen oust Commission de l’Ontario Toronto ON M5H 3S8 Toronto ON M5H 3S8

November 20, 2023

In the Matter of the Securities Legislation of Ontario (the Jurisdiction)

and

In the Matter of the Process for Exemptive Relief Applications in Multiple Jurisdictions

and

In the Matter of Premier American Uranium Inc. (the Filer)

DECISION

Background

The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) that the requirements under:

(a) Section 12.2 of National Instrument 41-101 General Prospectus Requirements (NI 41-101) relating to the use of restricted security terms, sections 1.13 and 10.6 of Form 41-101F1 Information Required in a Prospectus (Form 41-101F1), and sections 1.12 and 7.7 of Form 44-101F1 Short Form Prospectus (Form 44-101F1) relating to restricted security disclosure, shall not apply to the common shares of the Filer (the Common Shares) in connection with any prospectuses that may be filed by the Filer (the Prospectuses) under NI 41-101, National Instrument 44-101 Short Form Prospectus Distributions (NI 44-101), including a prospectus filed under National Instrument 44-102 Shelf Distributions (the Prospectus Disclosure Relief);

(b) Section 12.3 of NI 41-101 relating to prospectus filing eligibility for distributions of restricted securities, subject securities or securities that are, directly or indirectly, convertible into, or exercisable or exchangeable for, restricted securities or subject securities, shall not apply to distributions of Common Shares, compressed shares of the Filer (the Compressed Shares) or securities that are, directly or indirectly, convertible into, or exercisable or exchangeable for, Common Shares or Compressed Shares in connection with the Prospectuses (the Prospectus Eligibility Relief);

(c) Part 10 of National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102) relating to the use of restricted security terms and restricted security disclosure shall not apply to the Common Shares (the CD Disclosure Relief) in connection with continuous disclosure documents (the CD Documents) that may be filed by the Filer under NI 51-102;

(d) Part 2 of Ontario Securities Commission Rule 56-501 Restricted Shares (OSC Rule 56-501) relating to the use of restricted share terms and restricted share disclosure shall not apply to the Common Shares in connection with dealer and adviser documentation, rights offering circulars and offering memoranda (collectively, the OSC Rule 56-501 Documents) of the Filer (the OSC Rule 56-501 Disclosure Relief); and

(e) Part 3 of OSC Rule 56-501 relating to the withdrawal of prospectus exemptions for distributions of restricted shares, subject securities or securities that are, directly or indirectly, convertible into, or exercisable or exchangeable for, restricted shares or subject securities, shall not apply to the distribution of the Common Shares, Compressed Shares or securities that are, directly or indirectly, convertible into, or exercisable or exchangeable for, Common Shares or Compressed Shares (the OSC Rule 56-501 Withdrawal Relief) in connection with stock distributions (as defined in OSC Rule 56-501) of the Filer.

The aforementioned requirements are collectively referred to as the Restricted Security Rules. The Prospectus Disclosure Relief, Prospectus Eligibility Relief, CD Disclosure Relief, OSC Rule 56-501 Disclosure Relief and OSC Rule 56-501 Withdrawal Relief are collectively referred to as the Exemption Sought.

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):

(a) the Ontario Securities Commission is the principal regulator for this application, and

(b) the Filer has provided notice that section 4.7(1) of Multilateral Instrument 11‑102 Passport System (MI 11-102) is intended to be relied upon in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, the Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island, Quebec, Saskatchewan and the Yukon Territory.

Interpretation

Terms defined in National Instrument 14-101 Definitions, MI 11-102, NI 41-101, NI 51-102, and OSC Rule 56-501 have the same meaning if used in this decision, unless otherwise defined.

Representations

This decision is based on the following facts represented by the Filer:

1. The Filer was incorporated on September 9, 2022, is a corporation validly existing under the Business Corporations Act (Ontario) (the OBCA) and is in good standing.

2. The Filer's head office is located at 217 Queen Street West, Floor 4, Toronto, Ontario M5V 0R2.

3. The Filer has not carried on any active business since its incorporation, other than limited financings and limited staking consisting of 347 mining claims, covering approximately 6,940 acres, in the areas of the Uravan Belt in Montrose County, Colorado.

4. The Filer is not a reporting issuer in any jurisdiction. The Filer is not in default of any applicable requirements under securities legislation.

5. The Filer is not a “private issuer” as defined in National Instrument 45-106 Prospectus Exemptions or a “private company” as defined in the Securities Act (Ontario) as its securities are not subject to transfer restrictions.

6. The Filer's authorized share capital currently consists of three (3) classes of shares, being the Common Shares, the Compressed Shares, and super voting shares (the Super Voting Shares).

7. Holders of Common Shares shall be entitled to receive notice of and to attend all meetings of shareholders of the Filer, except meetings at which only holders of another particular class or series shall have the right to vote. At each such meeting, each Common Share shall entitle the holder to one (1) vote.

8. Holders of Compressed Shares shall be entitled to receive notice of and to attend all meetings of shareholders of the Filer, except meetings at which only holders of another particular class or series shall have the right to vote. At each such meeting, each Compressed Share shall entitle the holder to 1,000 votes.

9. Holders of Super Voting Shares shall be entitled to receive notice of and to attend all meetings of shareholders of the Filer, except meetings at which only holders of another particular class or series shall have the right to vote. At each such meeting, each Super Voting Share shall entitle the holder to 100,000,000 votes.

10. The holders of the Common Shares, Compressed Shares and Super Voting Shares vote together as a class, except as otherwise expressly provided in the articles of the Filer (the Articles) or as provided by law.

11. As at November 15, 2023, the Filer has 3,246,428 Common Shares, nil Compressed Shares and 1 Super Voting Share issued and outstanding.

12. The Super Voting Share is held by Consolidated Uranium Inc. (CUR), a reporting issuer listed on the TSX Venture Exchange (the TSXV). Accordingly, the Filer is a majority-controlled subsidiary of CUR.

13. The Common Shares are held among 23 persons who subscribed for Common Shares pursuant to various private placements of the Filer. None of the holders of Common Shares are “related parties” (within the meaning of Multilateral Instrument 61-101 Protection of Minority Security Holders in Special Transaction) of CUR.

14. On May 24, 2023, the Filer and CUR entered into a purchase agreement (the Premier Agreement) with Premier Uranium Inc. (Premier) and the shareholders of Premier, pursuant to which the Filer has agreed to acquire all of the outstanding shares of Premier in exchange for 12,000 Compressed Shares (the Premier Transaction). Premier is a privately held U.S. uranium focused project acquisition vehicle which owns a 100% interest in the Cyclone project in the Great Divide Basin of Wyoming and various mining claims in the Uravan Mineral Belt of Colorado.

15. On May 24, 2023, the Filer and CUR also entered into an arrangement agreement pursuant to which a spin-out of the Filer from CUR will be effected (the Transaction). Pursuant to the Transaction, CUR will transfer to the Filer certain assets currently held through subsidiaries of CUR, being eight U.S. Department of Energy Leases located in Colorado and certain patented mining claims in Montrose County, Colorado in consideration for 7,753,572 Common Shares. CUR will then distribute 50% of these Common Shares, being 3,876,786 Common Shares, to the holders of common shares of CUR (the CUR Shareholders) on a pro rata basis.

16. The Premier Transaction is conditional on the completion of the Transaction. Upon completion of the Premier Transaction and the Transaction, the pro forma holdings of the Filer will consist of a group of assets focused on the Uravan Belt, a geographic region in the southwest United States known for uranium and vanadium deposits, and Wyoming.

17. The Transaction is also conditional on conditional approval from the TSXV for the listing of the Common Shares, which conditional approval was received on November 15, 2023.

18. On September 27, 2023, CUR and IsoEnergy Ltd. (IsoEnergy) entered into an arrangement agreement pursuant to which IsoEnergy agreed to acquire all of the issued and outstanding common shares of CUR not already held by IsoEnergy in exchange for common shares of IsoEnergy (the IsoEnergy Transaction). The IsoEnergy Transaction will be effected by way of a court-approved plan of arrangement under section 182 of the OBCA. If the IsoEnergy Transaction is completed, CUR will become a wholly-owned subsidiary of IsoEnergy.

19. The IsoEnergy Transaction is conditional upon the completion of the Transaction.

20. Upon completion of the Transaction, the Filer will be a reporting issuer in each of British Columbia, Alberta, Ontario and Quebec. It is anticipated that the Filer will become a reporting issuer in each of Manitoba, New Brunswick, Newfoundland and Labrador, the Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island, Saskatchewan and the Yukon Territories, as a result of future prospectus filings.

21. The Transaction was approved by a majority of the votes cast by CUR Shareholders at a meeting on August 3, 2023.

22. The Filer’s share structure has been created solely for the purposes of maintaining the Filer’s foreign private issuer status as defined in Rule 405 of the United States Securities Act of 1933, as amended, on a go-forward basis and to ensure that the Filer is not immediately offside the foreign private issuer rules upon completion of the Premier Transaction, so as to avoid a commensurate material increase in the Filer's ongoing compliance costs.

23. The Compressed Shares are only being issued to the shareholders of Premier in connection with the Premier Transaction. One U.S. resident shareholder of Premier, being Sachem Cove Special Opportunities Fund LP, is expected to hold approximately 90% of the Compressed Shares. No CUR Shareholders who are receiving Common Shares pursuant to the Transaction will be required to exchange their Common Shares into Compressed Shares.

24. Upon completion of the Transaction, the Super Voting Share will be tendered back to the Filer for no consideration, and the Super Voting Shares will be removed as an authorized class of shares such that the Filer’s authorized capital will consist solely of Common Shares and Compressed Shares (the Shares), with the terms and provisions described below. The unanimous approval of the securityholders of the Filer to amend the Articles to remove the Super Voting Shares as an authorized class of shares of the Filer following closing of the Transaction was obtained on June 12, 2023.

25. Following the Transaction:

(a) The Common Shares may at any time, at the option of the holder thereof and with the consent of the Filer, be converted into Compressed Shares at a ratio of one (1) Compressed Share for one thousand (1,000) Common Shares.

(b) The Compressed Shares may at any time, at the option of the holder thereof and with the consent of the Filer, be converted into Common Shares on the basis of one thousand (1,000) Common Shares for one (1) Compressed Share, subject to certain limitations on conversion that maintain the Filer’s status as a “foreign private issuer” as defined in Rule 405 of the United States Securities Act of 1933, as amended.

(c) If the board of directors of the Filer (the Board) determines that it is no longer in the Corporation's interest to maintain the Compressed Shares as a separate class of shares, then the Compressed Shares shall be converted into Common Shares on the basis of one thousand (1,000) Common Shares for one (1) Compressed Share.

(d) Holders of Common Shares and Compressed Shares are entitled to dividends if, as and when dividends are declared by the Board, with each Compressed Share being entitled to one thousand (1,000) times the amount paid or distributed per Common Share (whether in cash or property), and otherwise without preference or distinction among or between the Shares.

(e) In the event of the liquidation, dissolution or winding-up of the Filer, the holders of Common Shares and Compressed Shares are entitled to participate in the distribution of the remaining property and assets of the Filer, with each Compressed Share being entitled to one thousand (1,000) times the amount distributed per Common Share, and otherwise without preference or distinction among or between the Shares.

(f) The holders of the Common Shares and Compressed Shares will be entitled to receive notice of, attend and vote at any meeting of shareholders of the Filer, except those meetings at which holders of a specific class of shares are entitled to vote separately as a class under the OBCA.

(g) The Common Shares will carry one (1) vote per share and the Compressed Shares will carry one thousand (1,000) votes per share.

26. The rights, privileges, conditions and restrictions attaching to the Shares may be modified if the amendment is authorized by not less than 66 2/3% of the votes cast at a meeting of holders of the Shares duly held for that purpose. However, holders of Common Shares and Compressed Shares shall each be entitled to vote separately as a class, in addition to any other vote of shareholders that may be required, in respect of any proposal to add to, remove or change the rights, privileges, restrictions or conditions attached to the shares of such class and, without limiting the generality of the foregoing, (i) remove or change prejudicially rights to accrued dividends or rights to cumulative dividends, (ii) add, remove or change prejudicially redemption rights or sinking fund provisions, (iii) reduce or remove a dividend preference or a liquidation preference, or (iv) add, remove or change prejudicially conversion privileges, options, voting, transfer or pre-emptive rights, or rights to acquire securities of a corporation.

27. No subdivision or consolidation of the Common Shares or Compressed Shares may be carried out unless, at the same time, the shares of the other class are subdivided or consolidated in the same manner and on the same basis, so as to preserve the relative rights of the holders of each such class of shares.

28. In addition to the conversion rights described above, in the event that an offer is made to purchase Compressed Shares, and such offer is:

(a) required, pursuant to applicable securities legislation or the rules of any stock exchange on which the Compressed Shares and/or the Common Shares may then be listed (or would be required if the offeree was located in Canada), to be made to all or substantially all of the holders of Compressed Shares in a province or territory of Canada to which the requirement applies (such offer to purchase, a Compressed Offer); and

(b) not made to the holders of Common Shares for consideration per Common Share equal to one-one-thousandth (1/1,000) of the consideration offered per Compressed Share and otherwise on identical terms, and with no condition attached other than the right not to take up and pay for shares tendered if no shares are purchased under the Compressed Offer,

then each Common Share shall become convertible at the option of the holder into Compressed Shares on the basis of one-one-thousandth (1/1,000) of a Compressed Share for each Common Share while the Compressed Offer is in effect until one day after the time prescribed by applicable securities laws for the offeror to take up and pay for such shares as are to be acquired pursuant to the Compressed Offer (the Common Conversion Right).

29. If Compressed Shares, resulting from the exercise of the Common Conversion Right and deposited pursuant to the Compressed Offer, are withdrawn by the holder or are not taken up by the offeror, or the Compressed Offer is abandoned, withdrawn or terminated by the offeror or the Compressed Offer otherwise expires without such Compressed Shares being taken up and paid for, the Compressed Shares resulting from the exercise of the Common Conversion Right will be re-converted into Common Shares on the basis of one-thousand (1,000) Common Shares for each Compressed Share then held.

30. In addition to the conversion rights described above, in the event that an offer is made to purchase Common Shares, and such offer is:

(a) required, pursuant to applicable securities legislation or the rules of any stock exchange on which the Common Shares and/or the Compressed Shares may then be listed (or would be required if the offeree was located in Canada), to be made to all or substantially all of the holders of Common Shares in a province or territory of Canada to which the requirement applies (such offer to purchase, a Common Offer); and

(b) not made to the holders of Compressed Shares for consideration per Common Share equal to the consideration offered per Common Share multiplied by one-thousand (1,000) and otherwise on identical terms, and with no condition attached other than the right not to take up and pay for shares tendered if no shares are purchased under the Common Offer,

then each Compressed Share shall become convertible at the option of the holder into Common Shares on the basis of one-thousand (1,000) Common Shares for each Compressed Share while the Common Offer is in effect until one day after the time prescribed by applicable securities laws for the offeror to take up and pay for such shares as are to be acquired pursuant to the Common Offer (the Compressed Conversion Right).

31. If Common Shares, resulting from the exercise of the Compressed Conversion Right and deposited pursuant to the Common Offer, are withdrawn by the holder or are not taken up by the offeror, or the Common Offer is abandoned, withdrawn or terminated by the offeror or the Common Offer otherwise expires without such Common Shares being taken up and paid for, the Common Shares resulting from the exercise of the Compressed Conversion Right will be re-converted into Compressed Shares on the basis of one-one-thousandth (1/1,000) of a Compressed Share for each Common Share then held.

32. Upon completion of the Transaction, the Compressed Shares will be the Filer’s only issued and outstanding subject securities.

33. The Filer is seeking the Exemption Sought in respect of, among other things, references to the Common Shares in Prospectuses, CD Documents and OSC Rule 56-501 Documents.

34. Section 12.2 of NI 41-101 requires that an issuer must not refer to a security in a prospectus by a term or a defined term that includes the word "common" unless the security is an equity security to which are attached voting rights exercisable in all circumstances, irrespective of the number or percentage of securities owned, that are not less, per security, than the voting rights attached to any other outstanding security of the issuer.

35. Section 12.3 of NI 41-101 requires that an issuer must not file a prospectus under which restricted securities, subject securities or securities that are, directly or indirectly, convertible into, or exercisable or exchangeable for, restricted securities or subject securities, are distributed unless:

(a) the distribution has received prior majority approval of the securityholders of the issuer in accordance with applicable law, including approval on a class basis if required and excluding any votes attaching at the time to securities held, directly or indirectly, by affiliates of the issuer or control persons of the issuer, or

(b) at the time of any restricted security reorganization related to the securities to be distributed:

(i) the restricted security reorganization received prior majority approval of the securityholders of the issuer in accordance with applicable law, including approval on a class basis if required and excluding any votes attaching at the time to securities held, directly or indirectly, by affiliates of the issuer or control persons of the issuer,

(ii) the issuer was a reporting issuer in at least one jurisdiction, and

(iii) no purposes or business reasons for the creation of restricted securities were disclosed that are inconsistent with the purpose of the distribution.

36. Sections 1.13 and 10.6 of Form 41-101F1 and sections 1.12 and 7.7 of Form 44-101F1 require that an issuer provide certain restricted security disclosure.

37. Section 2.2 of OSC Rule 56-501 requires dealer and adviser documentation to include the appropriate restricted share term if restricted shares and the appropriate restricted share term, or a code reference to restricted shares or the appropriate restricted share term, are included in a trading record published by the TSXV or other exchange listed in OSC Rule 56-501.

38. Section 2.3 of OSC Rule 56-501 requires that a rights offering circular or offering memorandum for a stock distribution prepared for a reporting issuer comply with certain requirements including, among others, that restricted shares may not be referred to by a term or a defined term that includes “common”, “preference” or “preferred” and that such shares shall be referred to using a term or a defined term that includes the appropriate restricted share term.

39. Section 3.2 of OSC Rule 56-501 provides that the prospectus exemptions under Ontario securities law are not available for a stock distribution of securities of a reporting issuer unless either the stock distribution received minority approval of shareholders or all the conditions set out in subsection 3.2(2) are satisfied and the information circular relating to the shareholders' meeting held to obtain such minority approval for the stock distribution included prescribed disclosure.

40. Section 10.1 of NI 51-102 requires a reporting issuer that has outstanding restricted securities, or securities that are directly or indirectly convertible into or exercisable or exchangeable for restricted securities or securities that will, when issued, result in an existing class of outstanding securities being considered restricted securities, to provide specific disclosure with respect to such securities in its information circular, a document required by NI 51-102 to be delivered upon request by a reporting issuer to any of its securityholders, an annual information form prepared by the reporting issuer as well as any other documents that it sends to its securityholders.

41. Section 10.2 of NI 51-102 sets out the procedure to be followed with respect to the dissemination of disclosure documents to holders of restricted securities.

42. Pursuant to the Restricted Security Rules, a "restricted security" means an equity security of a reporting issuer if any of the following apply:

(a) there is another class of securities of the reporting issuer that, to a reasonable person, appears to carry a greater number of votes per security relative to the equity security,

(b) the conditions attached to the class of equity securities, the conditions attached to another class of securities of the reporting issuer, or the reporting issuer's constating documents have provisions that nullify or, to a reasonable person, appear to significantly restrict the voting rights of the equity securities, or

(c) the reporting issuer has issued another class of equity securities that, to a reasonable person, appears to entitle the owners of securities of that other class to participate in the earnings or assets of the reporting issuer to a greater extent, on a per security basis, than the owners of the first class of equity securities.

43. As the Compressed Shares will entitle the holders thereof to 1,000 votes per Compressed Share held, it will technically represent a class of securities carrying a greater number of votes per security relative to the Common Shares, which entitle the holders thereof to one (1) vote per Common Share. The greater number of votes per Compressed Share (vis-à-vis the Common Shares) would, absent the Exemption Sought, have the following consequences in respect of the technical status of the Common Shares:

(a) pursuant to NI 41-101 and NI 44-101, the Filer would be unable to use the word "common" to refer to the Common Shares in the Prospectuses and the Filer would be required to provide the specific disclosure required by NI 41-101 and NI 44-101 because the Compressed Shares would represent a security to which are attached voting rights exercisable in all circumstances, irrespective of the number or percentage of securities owned, that are more, per security, than the voting rights attached to the Common Shares,

(b) the Common Shares would be considered "restricted shares" pursuant to OSC Rule 56-501 and the Filer would be subject to the dealer and advisor documentary disclosure obligations and distribution restrictions in OSC Rule 56-501 because the Compressed Shares would represent a security to which is attached voting rights exercisable in all circumstances, irrespective of the number of percentage of shares owned, that are more, on a per share basis, than the voting rights attaching to the Common Shares and the Filer would be unable to use the word "common" to refer to the Common Shares in a rights offering circular or offering memorandum for a stock distribution, and

(c) the Common Shares could be considered "restricted securities" pursuant to para. (a) of the definition of the term in NI 51-102 and the Filer would be required to provide the specific disclosure required by NI 51-102 in respect of the Common Shares because the Compressed Shares would represent another class of securities of the Filer that, to a reasonable person, appears to carry a greater number of votes per security relative to the Common Shares.

Decision

The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.

The decision of the principal regulator under the Legislation is that the Exemption Sought is granted provided that:

(a) in connection with the Prospectus Disclosure Relief and the Prospectus Eligibility Relief as they apply to Prospectuses, at the time the Filer relies on the Exemption Sought:

(i) the representations in paragraphs 24 to 32, above, continue to apply;

(ii) the Filer has no restricted securities issued and outstanding other than the Common Shares; and

(iii) the Prospectuses include disclosure consistent with the representations in paragraphs 24 to 32 above;

(b) in connection with the OSC Rule 56-501 Disclosure Relief as it applies to the OSC Rule 56-501 Documents, at the time the Filer relies on the Exemption Sought:

(i) the representations in paragraphs 24 to 32, above, continue to apply; and

(ii) the Filer has no restricted shares issued and outstanding other than the Common Shares;

(c) in connection with the OSC Rule 56-501 Withdrawal Relief, at the time the Filer relies on the Exemption Sought:

(i) the representations in paragraphs 24 to 32, above, continue to apply; and

(ii) the Filer has no restricted shares issued and outstanding other than the Common Shares; and

(d) in connection with the CD Disclosure Relief as it applies to the CD Documents, at the time the Filer relies on the Exemption Sought:

(i) the representations in paragraphs 24 to 32, above, continue to apply; and

(ii) the Filer has no restricted securities issued and outstanding other than the Common Shares.

“Erin O’Donovan”

Erin O’Donovan Manager, Corporate Finance Ontario Securities Commission OSC File# 2023/0286