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 Argonaut Gold Inc.
(the Filer)
Order
Background
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, Newfoundland and Labrador, Northwest Territories, Yukon and Nunavut.
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 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:
The Filer is a corporation existing under the Business Corporations Act (Ontario) (the OBCA) and its head office is located at 200 Bay Street, Suite 1302, Toronto, Ontario, M5J 2J3.
The Filer is a reporting issuer in each of the provinces and territories of Canada.
The authorized capital of the Filer consists of an unlimited number of common shares (the Argonaut Shares), of which 1,278,776,190 Argonaut Shares were issued and outstanding as at September 10, 2024. The Argonaut Shares were listed for trading on the Toronto Stock Exchange (the TSX) under the symbol “AR” until their de-listing at the close of business on July 16, 2024.
On March 27, 2024, the Filer entered into an arrangement agreement with Alamos Gold Inc. (Alamos), as amended on May 24, 2024 (the Arrangement Agreement), to complete a transaction (the Arrangement) by way of statutory plan of arrangement under section 182 of the OBCA (the Plan of Arrangement) pursuant to which: (i) Alamos would acquire all of the issued and outstanding Argonaut Shares; and (ii) certain American and Mexico based assets of the Filer would be spun out to shareholders of the Filer. Alamos and the Filer issued a joint news release on the same date publicly announcing the Arrangement.
The Arrangement was approved by shareholders of the Filer (Argonaut Shareholders) at a special meeting that took place on June 28, 2024 to consider the Arrangement (the Meeting), in accordance with the interim order of the Ontario Superior Court of Justice (Commercial List) (the Court) dated May 24, 2024. The management information circular and related meeting materials distributed in connection with the Meeting included prospectus-level disclosure of the business and affairs of each of Alamos and the Filer and information regarding the Arrangement.
On July 5, 2024, Alamos and the Filer received the final order of the Court pursuant to section 182 of the OBCA, approving the Arrangement. The Arrangement became effective at 3:01 a.m. (Toronto time) on July 12, 2024 (the Effective Time).
Pursuant to the Arrangement:
(a) the Filer’s assets in the United States and Mexico were spun out to former Argonaut Shareholders as a newly-created junior gold producer named Florida Canyon Gold Inc. (SpinCo) and former Argonaut Shareholders received one (1) Class A common share in the capital of the Filer created pursuant to the Plan of Arrangement (each, an Argonaut Class A Share) and 0.1 of a common share of SpinCo in exchange for each Argonaut Share held;
(b) each restricted share unit granted under, or governed by, the Filer’s incentive plan (an Argonaut RSU) that had vested prior to the Effective Time was redeemed and cancelled, in exchange for such number of fully-paid Argonaut Shares as were due to such holders under the terms of the Filer’s incentive plan (less any amounts withheld in accordance with the Plan of Arrangement);
(c) each deferred share unit granted under, or governed by, the Filer’s incentive plan immediately vested, and upon such vesting was immediately redeemed and cancelled, in exchange for such number of fully-paid Argonaut Shares as were due to such holder under the terms of the Filer’s incentive plan (less any amounts withheld in accordance with the Plan of Arrangement);
(d) holders of Argonaut Class A Shares received 0.0185 of a Class A common share of Alamos (each whole share, an Alamos Share) in exchange for each Argonaut Class A Share held;
(e) each option to purchase an Argonaut Share (an Argonaut Option) outstanding prior to the Effective Time was exchanged for a replacement option (a Replacement Option) to acquire 0.0185 of an Alamos Share for each Argonaut Share that was the subject of such Argonaut Option prior to the Effective Time;
(f) each Argonaut RSU that had not vested prior to the Effective Time was adjusted such that the holders of Argonaut RSUs are entitled upon vesting to receive 0.0185 of an Alamos Share for each Argonaut Share that was the subject of such Argonaut RSUs; and
(g) each performance share unit granted under, or governed by, the Filer’s incentive plan (an Argonaut PSU) that had not vested prior to the Effective Time expired with no consideration. There were no Argonaut PSUs outstanding immediately prior to the Effective Time that had vested prior to the Effective Time.
As at the Effective Time, the Filer had outstanding a class of 4.625% senior unsecured convertible debentures (the Argonaut Debentures) listed on the TSX. The Argonaut Debentures remained outstanding following the completion of the Arrangement.
As a result of the Arrangement, Alamos ultimately assumed the obligations of the Filer under the Argonaut Debentures and the indenture governing the Argonaut Debentures (the Indenture). As required under the terms of the Indenture, Alamos entered into a supplemental debenture indenture with Computershare Trust Company of Canada (the Debenture Trustee) and the Filer (the Supplemental Indenture) providing, among other things, that: (i) from and after the Effective Time, the Argonaut Debentures entitled the holder thereof to receive, upon exercise in accordance with the terms thereof, in lieu of the number of Argonaut Shares otherwise issuable upon exercise under the Indenture, such number of Alamos Shares at an adjusted conversion price; and (ii) Alamos assumed the Filer’s obligations under the Argonaut Debentures and the Indenture.
As Alamos had acquired 100% of the equity of the Filer, the terms of the Indenture required that Alamos make an offer to purchase (the Debenture Offer), for cash, all of the Argonaut Debentures at a price equal to 100% of the principal amount of Argonaut Debentures, together with accrued and unpaid interest thereon up to, but excluding, the debenture take-up date (the Offer Price). The Indenture required that the Debenture Offer be made within 30 days of the completion of the Arrangement. Alamos made the Debenture Offer on July 24, 2024. The Debenture Offer was open for acceptance for 35 days in accordance with the terms of the Indenture, and expired on August 28, 2024 at 5:00 p.m. (Toronto time), with a take-up and payment date of September 3, 2024.
On August 28, 2024 at 5:00 p.m. (Toronto time), the Debenture Offer expired. Holders of Debentures with an aggregate principal amount of US$52,577,000 (the Tendered Argonaut Debentures), representing approximately 91.4% of the total principal amount of Debentures outstanding, tendered to the Debenture Offer. Shortly thereafter, Alamos determined that it would redeem (the 90% Redemption) all of the outstanding Argonaut Debentures that were not tendered to the Debenture Offer (the Untendered Argonaut Debentures). In accordance with the Indenture, the Untendered Argonaut Debentures were to be redeemed for a redemption price equal to the Offer Price, being 100% of the principal amount of the Untendered Argonaut Debentures, together with accrued and unpaid interest thereon up to, but excluding, September 3, 2024 (the Redemption Price).
On September 3, 2024, the Filer purchased all of the Tendered Argonaut Debentures for the Offer Price. On September 3, 2024, in connection with the 90% Redemption, the Filer:
(a) provided a notice of exercise of the 90% redemption right under the Indenture (the 90% Redemption Notice) to the Debenture Trustee, which provided the 90% Redemption Notice to holders of the Untendered Argonaut Debentures;
(b) filed a copy of the 90% Redemption Notice on its issuer profile on SEDAR+;
(c) deposited the aggregate Redemption Price with the Debenture Trustee; and
(d) issued a news release publicly announcing that more than 90% of the Argonaut Debentures had been tendered to the Debenture Offer and that the Filer was providing notice of the 90% Redemption pursuant to the Indenture.
In connection with the 90% Redemption, effective as of the close of business on September 3, 2024, the Argonaut Debentures were delisted from the TSX.
On September 6, 2024, all of the Untendered Argonaut Debentures were surrendered to the Debenture Trustee, the Redemption Price was paid by the Debenture Trustee to the holders of the Untendered Argonaut Debentures and all of the Argonaut Debentures ceased to be outstanding in accordance with the terms of the Indenture.
The Filer is not an OTC reporting issuer under Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets.
The Filer’s outstanding securities, including debt securities, are beneficially owned, directly or indirectly, by fewer than 15 securityholders in each of the jurisdictions of Canada and fewer than 51 securityholders in total worldwide.
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.
The Filer is not in default of securities legislation in any jurisdiction, except for its failure to file on or before August 14, 2024 its interim financial report and related interim management’s discussion analysis for its interim period ended June 30, 2024, as required under National Instrument 51-102 Continuous Disclosure Obligations, and related certificates as required under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (collectively, the Q2 Defaults).
The Filer would be eligible to surrender its status as a reporting issuer pursuant to the simplified procedure under section 19 of National Policy 11-206 Process for Cease to be a Reporting Issuer Applications but for the Q2 Defaults.
The Filer has no intention to seek public financing by way of an offering of securities.
The Filer is applying for an order that it has ceased to be a reporting issuer in all of the jurisdictions of Canada in which it is currently a reporting issuer.
The Filer is not required to obtain any consents or approvals to cease to be a reporting issuer in any jurisdiction, other than the Order Sought.
Upon the granting of the Order Sought, the Filer will not be a reporting issuer or the equivalent in any jurisdiction of Canada.
Order
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 1st day of October, 2024.
“Lina Creta”
Lina Creta
Manager, Corporate Finance
Ontario Securities Commission
OSC File#: 2024/0532