COURT FILE NO.: CV-22-690769
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: IN THE MATTER OF AN APPLICATION UNDER SECTION 182 OF THE CANADA BUSINESS CORPORATIONS ACT, R.S.C. 1985, C. C-44, AS AMENDED
AND IN THE MATTER OF RULES 14.05(2) and 14.05(3) OF THE RULES OF CIVIL PROCEDURE
AND IN THE MATTER OF A PROPOSED PLAN OF ARRANGEMENT INVOLVING MAVERIX METALS INC. AND TRIPLE FLAG PRECIOUS METALS CORP.
BEFORE: Osborne J.
COUNSEL: Ryan A. Morris, for Maverix Metals Inc.
Andrew Gray & Carley Klinkhoff, for Triple Flag Precious Metals Corp.
HEARD: November 30, 2022
ENDORSEMENT
1The Applicant, Maverix Metals Inc. (“Maverix” or the “Applicant”) has brought this Application pursuant to section 192 of the Canada Business Corporations Act, R.S.C. 1985, c.C-44, as amended, for approval of a plan of arrangement (the “Arrangement”).
2As further described below, the principal purpose of the Arrangement is to effect the acquisition of all of the common shares of Maverix by Triple Flag Precious Metals Corp. (“Triple Flag”). The total equity value pursuant to the Arrangement is approximately CDN $606 million on a fully diluted basis.
3Today, Maverix brings this motion under s. 192(4) for advice and directions from this Court by way of an interim order (the “Interim Order”) which would direct the Applicant to hold a special meeting of shareholders to consider and vote on a special resolution to approve the Arrangement. The interim order sought today also deals with the necessary notice and other mechanical requirements for the meeting.
4Maverix is a CBCA corporation. It operates as a mining royalty streaming company, the shares of which are listed and traded on the Toronto Stock Exchange and the NYSE American Exchange.
5Triple Flag is also a CBCA corporation operating as a streaming and royalty company. Its shares are listed and trade on the TSE and the NYSE.
6The Arrangement and the terms thereof are described in detail in the Management Information Circular, attached to the Affidavit of Matthew Fargey sworn November 28, 2022 as Exhibit “A”, on which the Applicant relies today. The Arrangement would, if approved, provide for the acquisition by Triple Flag of all of the issued and outstanding common shares of Maverix for consideration of USD $3.92 per share in cash, or 0.36 of a common share in the capital of Triple Flag, in each case subject to proration in accordance with the terms of the Arrangement.
7The Arrangement also addresses outstanding options and restricted share units according to its terms.
8As a result, proceeding by way of the Arrangement allows the various necessary steps to occur in a controlled and sequenced manner for of all of the securities referred to above. It would be impracticable to proceed with this transaction other than by way of arrangement pursuant to the CBCA.
9The Arrangement as proposed results from extensive arm’s-length negotiations. It was reviewed by a Strategic Committee of independent directors of Maverix struck for the purpose of reviewing options and reporting to the Board. The Strategic Committee considered the terms, and obtained a fairness opinion from each of Raymond James and CIBC.
10The proposed Arrangement is the subject of favourable voting support agreements executed by Newmont Corporation and Pan American Silver Corp. pursuant to which each of those entities has agreed to vote its shares in favour of the Arrangement.
11On November 9, 2022, and having considered the materials including the fairness opinions, the Strategic Committee unanimously determined that the Arrangement is fair to the shareholders, in the best interests of Maverix and recommended approval to the Board. The Board similarly unanimously approved the Arrangement and recommends it to shareholders.
12I observe that the consideration for shares offered to shareholders pursuant to the Arrangement represents a premium of 10% and 22% to the closing price and the 10 day VWAP, respectively, of shares on the NYSE American Exchange as of November 9, 2022. The Arrangement provides optionality for shareholders in that they may elect to receive cash or the proportional fraction of a Triple Flag share. The Board remains able to respond to any unsolicited bona fide written proposal that constitutes a Company Superior Proposal [as defined in the Arrangement Agreement]. Finally, the Arrangement provides for dissent rights which, if exercised and successful, would yield for shareholders fair value for their shares.
13Maverix is not insolvent. Notice to the CBCA Director is required and has been provided. By correspondence dated November 29, 2022 filed with the Court, the Director has confirmed that it does not need to appear or be heard on the Application.
14The proposed Arrangement is an “arrangement” within the meaning of section 192 of the CBCA, and Maverix meets the statutory requirements to apply for approval.
15Maverix proposes to call, hold and conduct virtually a special meeting of shareholders on January 12, 2023 for the shareholders to consider and if so inclined, approve a special resolution approving, with or without variation, the Arrangement and Plan of Arrangement [as defined in the motion materials].
16Maverix intends to rely on the fairness hearing in this proceeding and the final order approving the Arrangement, if the Arrangement is approved by the shareholders, for an exemption pursuant to section 3(a)(10) of the United States Securities Act of 1933, as amended.
17The proposed Interim Order primarily deals with notice and voting mechanics. It is in a form substantively consistent with the Model Interim Order of the Commercial List issued by this Honourable Court in respect of similar plans of arrangement. I note the now common variation contained in paragraph 22 requiring dissenting shareholders to exercise their dissent rights two days prior to the scheduled meeting, to allow Triple Flag an extra day before the meeting to determine whether the dissent threshold has been exceeded and/or whether it will be waived.
18In assessing whether to approve an Interim Order under section 192 of the CBCA, an applicant must demonstrate that it: 1) is acting in good faith in putting the proposed plan forward; and 2) satisfies the applicable statutory requirements.
19Having regard to the record before the Court, I am satisfied that Maverix is acting in good faith and that the statutory requirements are satisfied at this stage.
20It is not incumbent upon the Judge being asked to grant an interim order to carry out a detailed examination of the draft Information Circular that is to be distributed to for its sufficiency. The Court does not approve or authorize the Information Circular (see Re First Marathon Inc., 1999 CarswellOnt 2295 (Ont. S.C.J. - Comm. List) at paragraphs 9 to 11; Re 45133541 Canada Inc., 2009 QCCS 6440 at paras. 23-24 and 52). The Court at this stage is concerned with the approval and authorization of the mechanics for the notice and calling of the meeting for the shareholder vote and for shareholders to express their views and exercise their voting and dissent rights.
21Nor does the Court have to undertake a detailed fairness analysis at this stage. It is enough that it be satisfied that there is sufficient indication of fairness to warrant the matter proceeding to a vote and fairness hearing. The purpose of the interim order is “simply to set the wheels in motion for the application process relating to the arrangement.” (Re Canopy Rivers Inc., 2021 ONSC 355 at para. 2 (Ont. S.C.J. - Comm. List)).
22I am satisfied that the steps proposed to be taken pursuant to the draft Interim Order are appropriate. They provide for notice and the exercise of rights by all shareholders and holders of options and restricted share units. The proposed meeting and voting mechanics would provide for sufficient and appropriate approval by shareholders if so desired and, if not, to exercise dissent rights and obtain fair value.
23Moreover, shareholders, and holders of options and restricted share units, will receive notice and have the opportunity to attend on the return of this Application to consider whether the proposed Arrangement is fair and reasonable and should be approved, should they wish to do so.
24Having considered both the written and oral submissions of counsel, I am satisfied that it is appropriate for the requested Interim Order to be granted.
25Order to go in the form signed by me today, with immediate effect and without the necessity of formal issuance and entry, although a formal order may be taken out by any interested party, if so required.
Osborne J.
Date: November 30, 2022