Subsection 1(10) of the Securities Act -- Application by a reporting issuer for an order that it is not a reporting issuer -- To the knowledge of the reporting issuer, and based on diligent enquiry, residents of Canada (i) do not directly or indirectly beneficially own more than 2% of each class or series of outstanding securities of the reporting issuer worldwide, and (ii) do not directly or indirectly comprise more than 2% of the total number of shareholders of the Applicant worldwide -- Issuer is subject to U.K. securities law and requirements of the AIM -- Applicant has provided notice through a press release that it has submitted an application to cease to be a reporting issuer in Ontario.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10).
IN THE MATTER OF THE SECURITIES ACT, R.S.O. 1990, CHAPTER S.5, AS AMENDED (THE "ACT") AND IN THE MATTER OF MARIANA RESOURCES LIMITED (THE "APPLICANT")
The Applicant has applied to the Ontario Securities Commission (the "Commission") for an order under subclause 1(10)(a)(ii) of the Act that the Applicant is not a reporting issuer.
UPON the Director having received an application from the Applicant for an order under subparagraph 1 (10)(a)(ii) of the Act that the Applicant is not a reporting issuer in Ontario (the "Requested Order");
AND UPON considering the application and the recommendation of the staff of the Commission;
AND UPON the Applicant representing to the Commission as follows:
1. Mariana Resources Limited was incorporated in Guernsey under The Companies (Guernsey) Laws, 1994 to 1996 (as amended) (Registered No. 44276) on January 31, 2006 and is organized under The Companies (Guernsey) Law, 2008, as amended.
2. The Applicant is a mineral exploration and development company focused on the areas of Peru and southern Argentina. Its head office is located at Suite 102, 3 Eden Street, North Sydney, NSW 2060, Australia. The Applicant does not have operations in Canada.
3. The Company's share capital is divided into ordinary shares (the "Shares") of £0.0001 each, of which 423,908,074 Shares were issued and outstanding as of March 18, 2014. All of the issued Shares are fully paid and non-assessable.
4. The Applicant is a reporting issuer in Ontario. The Applicant is not noted as being in default on the list of reporting issuers maintained by the Commission.
5. The Applicant is listed on the Alternative Investment Market of the London Stock Exchange ("AIM") in the United Kingdom (the "UK") under the trading symbol "MARL". The Applicant voluntarily delisted its Shares from the Toronto Stock Exchange (the "TSX") on or about February 12, 2013.
De minimis securityholder base in Canada
6. In support of the representations set forth in paragraph 10 below concerning the percentage of outstanding securities and the total number of securityholders in Canada, the Applicant sought and obtained information from Orient Capital Pty Ltd. (the "Analyst"). The Analyst is the largest analyser of share registers globally and the dominant provider of equity ownership analytics in multiple markets. The Applicant directed the Analyst to undertake a thorough and diligent analysis of its shareholdings for the purposes of determining the number, holdings, identity and geographic location of the holders of its outstanding Shares, on a registered and beneficial basis.
7. The Analyst examined the shareholder register as at March 18, 2014 to determine the registered shareholders of the Applicant (the "Registered Shareholders"), their respective places of residence and their respective shareholdings. The Analyst determined that as at March 18, 2014, the Applicant had 423,908,074 Shares outstanding worldwide. The Analyst determined that of 523 worldwide Registered Shareholders, a total of 34,500 Shares were held by two Registered Shareholders with addresses in Canada. As a result, the Analyst concluded that as at March 18, 2014, Registered Shareholders with residences in Canada held 0.01% of the total number of issued and outstanding Shares worldwide and make up approximately 0.38% of Registered Shareholders worldwide.
8. The Analyst contacted each nominee/broker/intermediary directly to determine the beneficial shareholders of the Applicant ("Beneficial Shareholders"), their respective places of residence and their respective shareholdings as at March 18, 2014. The Analyst was able to track the beneficial ownership of 99.96% of the outstanding Shares as of March 18, 2014. The Analyst determined that of 619 worldwide Beneficial Shareholders, a total of 5,431,690 Shares were held by 9 Beneficial Shareholders with addresses in Canada. As a result, the Analyst concluded that as at March 18, 2014, Beneficial Shareholders with residences in Canada held 1.28% of the total number of issued and outstanding Shares and make up approximately 1.45% of Beneficial Shareholders.
9. The Applicant believes that the foregoing inquiries and scope of the analysis of the Analyst were reasonable, given that the Applicant's share register and the method of contacting each nominee/broker/intermediary holding Shares directly are the only sources and methods available to obtain information about the Applicant's shareholders, their respective places of residence and respective shareholdings.
10. Accordingly, based on the four foregoing paragraphs, as of March 18, 2014, residents of Canada do not:
(a) directly or indirectly beneficially own more than 2% of each class or series of outstanding securities (including debt securities) of the Applicant worldwide, and
(b) directly or indirectly comprise more than 2% of the total number of securityholders of the Applicant worldwide.
No Canadian capital markets activity
11. The Applicant has no current intention to seek public financing by way of an offering of securities in any jurisdiction in Canada.
12. In the 12 months before the date hereof, the Applicant has not taken any steps that indicate there is a market for its securities in Canada and, in particular, has not conducted a prospectus offering in Canada, nor has it established or maintained a listing on a Canadian marketplace or exchange. The Applicant voluntarily delisted its Shares from the TSX on or about February 12, 2013. Since then none of the Applicant's securities are or have been listed, traded or quoted on a marketplace in Canada as defined in National Instrument 21-101 Marketplace Operation and the Applicant does not intend to have its securities listed, traded or quoted on such a marketplace in Canada.
No prejudice for Canadian investors
13. On April 3, 2014, the Applicant provided advance notice to Canadian resident securityholders in a news release that it had applied to the Commission for a decision that it is not a reporting issuer in Canada and, if that decision is made, the issuer will no longer be a reporting issuer in any jurisdiction of Canada.
14. The Applicant files continuous disclosure reports under UK securities laws and is listed on AIM in the UK. The Applicant is not in default of any of the requirements of AIM or applicable securities UK law.
15. All disclosure required to be made by the Applicant under applicable UK securities laws and AIM requirements is publicly available to all of the Applicant's securityholders through the Applicant's website at www.marianaresources.com.
16. The Applicant undertakes that it will concurrently deliver to its Canadian registered securityholders, all disclosure the Applicant is required to deliver to its non-Canadian registered securityholders under applicable UK securities law and AIM requirements.
AND UPON the Commission being satisfied that it would not be prejudicial to the public interest.
IT IS HEREBY ORDERED pursuant to subclause 1(10)(a)(ii) of the Act that, for the purposes of Ontario securities law, the Applicant is not a reporting issuer.
DATED this 27th day of May, 2014.