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Amara Mining PLC
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Application by foreign issuer for a decision that it is no longer reporting issuers in the jurisdiction -- foreign issuer has a de minimis market presence in Canada -- Residents of Canada do not beneficially own more than 2% of each class or series of outstanding securities of the issuer and do not comprise more than 2% of the total number of securityholders of the issuer -- The issuer's securities are not listed on any stock exchange or traded on a marketplace in Canada- Canadian securityholders will continue to receive continuous disclosure as required by UK securities laws -- The foreign issuer previously announced that it was applying for a decision that it is not a reporting issuer -- Requested relief granted.
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 AMARA MINING PLC (THE "APPLICANT")
ORDER
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 Ontario Securities Commission (the "Commission");
AND UPON the Applicant representing to the Commission as follows:
1. The Applicant is a company established under the Companies Act 1985 (as amended) in England and Wales with registered number 04822520.
2. The Applicant's head and registered office is 29-30 Cornhill, London, EC3V 3NF, United Kingdom.
3. The Applicant is a gold development and production company operating in Burkina Faso, Côte d'Ivoire, Liberia and Sierra Leone, in West Africa. Management is based in London, England.
4. The Applicant does not have operations in Canada.
5. As of April 22, 2014, the Applicant's issued capital is 328,979,827 ordinary shares (the "Ordinary Shares). The Applicant had no debt securities.
6. The Ordinary Shares have been listed on AIM since December 15, 2004.
7. The Ordinary Shares were listed on the Toronto Stock Exchange (the "TSX") on February 17, 2009.
8. The Applicant had discussion with the TSX regarding a voluntary delisting of its Ordinary Shares from the TSX and the TSX delisted the Ordinary Shares at the close of trading on October 25, 2013.
9. The Applicant is not a reporting issuer in any other jurisdiction in Canada other than Ontario.
10. The Applicant is not in default of any of its obligations under the Act as a reporting issuer.
11. The Applicant is not in default of any reporting or other requirement of AIM.
12. Using a record date of April 22, 2014, the Applicant caused Peel Hunt LLP (the "Transfer Agent") to provide a shareholder register and to conduct a search to confirm the residency of the beneficial holders of the Ordinary Shares held through intermediaries. The Applicant determined the number of Canadian residents that beneficially owned its Ordinary Shares, and the number of Ordinary Shares beneficially owned by Canadian residents, directly and indirectly, as at April 22, 2014, by reviewing the results of this search, and the shareholder register maintained by the Transfer Agent.
13. The review carried out by the Applicant revealed that:
(a) residents of Canada beneficially own an aggregate of 4,697,900 Ordinary Shares, broken down by province as follows:
(i) British Columbia: 3 securityholders holding 5,700 Ordinary Shares; and
(ii) Ontario: 6 securityholders holding 4,692,200 Ordinary Shares;
(b) 9 residents of Canada own 4,697,900 Ordinary Shares. Accordingly, residents of Canada hold approximately 1.43% of the Applicant's issued and outstanding Ordinary Shares.
(c) residents of Canada comprise 9 out of 1016 shareholders of the Applicant, representing approximately 0.90% of the total number of shareholders of the Applicant.
14. Based on this review, the Applicant represents that:
(a) Residents of Canada do not directly or indirectly comprise more than 2% of the total number of securityholders of the Applicant worldwide; and
(b) Residents of Canada do not directly or indirectly beneficially own more than 2% of each class or series of outstanding securities of the Applicant worldwide.
15. In the past 12 months, the Applicant has not taken steps to create a market in Canada for the Ordinary Shares and, in particular, never offered securities to the public in Ontario or in any other jurisdiction in Canada by way of a prospectus offering. The Applicant has no current intention to distribute any securities to the public in Canada nor does it intend to seek financing by way of a public offering of its securities in Canada.
16. No securities of the Applicant are traded on a "marketplace" 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. The Applicant's Ordinary Shares were delisted from the TSX on October 25, 2013. However, the TSX only attracted a de minimis number of Canadian investors and the total volume of trading of the Ordinary Shares in the 12 months prior to delisting from the TSX was approximately 1,076,940 shares, which accounted for approximately 0.42% of the Applicant's worldwide trading volumes. In contrast, the total volume on AIM for the same period represented approximately 257,569,688 shares, accounting for approximately 99.58% of the Applicant's worldwide trading volumes.
17. The Applicant has provided advance notice to Canadian-resident securityholders in a press release dated May 13, 2014 that it intends to apply to the Commission for a decision that it is not a reporting issuer in Ontario, and if that decision is made, the Applicant will no longer be a reporting issuer in any jurisdiction in Canada.
18. The Applicant files continuous disclosure reports under the laws, rules and regulations of the United Kingdom and AIM (including the Companies Act 2006, the AIM Rules for Companies and the Disclosure Rules and Transparency Rules issued by the Financial Conduct Authority (together, the "U.K. securities laws")).
19. The Applicant qualifies as a "Designated Foreign Issuer" under National Instrument 71-102 -- Continuous Disclosure and Other Exemptions Relating to Foreign Issuers ("NI 71-102"). Because the Applicant is a Designated Foreign Issuer, it currently satisfies most of the continuous disclosure obligations under Canadian securities legislation by complying with the disclosure requirements of U.K. securities laws pursuant to Part 5 of NI 71-102. In the event that the Applicant ceases reporting in Canada, Canadian securityholders will continue to receive disclosure under U.K. securities laws.
20. The Applicant undertakes to concurrently deliver to its Canadian securityholders all disclosure it would be required under U.K. securities laws to deliver to U.K. resident securityholders.
21. The Applicant will not be a reporting issuer or the equivalent in any jurisdiction in Canada immediately following the Commission granting the relief requested.
AND UPON the Commission being satisfied that it would not be prejudicial to the public interest.
IT IS HEREBY ORDERED pursuant to subparagraph 1(10)(a)(ii) of the Act that, for the purposes of Ontario securities law, the Applicant is not a reporting issuer.
DATED this 10th day of June, 2014.
"Judith Robertson"
Commissioner
Ontario Securities Commission
"Anne Marie Ryan"
Commissioner
Ontario Securities Commission