Scheduled outage for OSC Electronic Filing Portal on Thursday, April 25, 2024 from 6:00 to 11:00 pm (EST)
Aguia Resources Limited – s. 1(11)(b)
Headnote
Subsection 1(11)(b) -- Order that the issuer is a reporting issuer for the purposes of Ontario securities law -- Issuer is already a reporting issuer in Alberta and British Columbia -- Issuer's securities listed for trading on the TSX Venture Exchange -- Continuous disclosure requirements in Alberta and British Columbia are substantially the same as those in Ontario -- Issuer has a significant connection to Ontario.
Statues Cited
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(11)(b).
IN THE MATTER OF THE SECURITIES ACT, R.S.O. 1990, CHAPTER S.5, AS AMENDED (the Act) AND IN THE MATTER OF AGUIA RESOURCES LIMITED
ORDER (clause 1(11)(b))
UPON the application of Aguia Resources Limited (the Applicant) to the Ontario Securities Commission (the Commission) for an order pursuant to clause 1(11)(b) of the Act that the Applicant is a reporting issuer for the purposes of Ontario securities law;
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. The Applicant was incorporated under the Australian Corporations Act 2001 (Cth) (the Corporations Act) as Newport Mining Limited on October 31, 2007. On October 6, 2010, Newport Mining Limited changed its name to Aguia Resources Limited.
2. The head and registered office of the Applicant is located at Level 5, 126 Phillip Street, Sydney, NSW, Australia, 2000.
3. The ordinary shares of the Applicant (the Ordinary Shares) were first listed on the Australian Securities Exchange (ASX) on February 13, 2008. The Ordinary Shares are the Company's only securities listed on the ASX.
4. The Ordinary Shares began trading on the TSX Venture Exchange (the TSXV) on July 6, 2017 under the symbol "AGRL." The Ordinary Shares are not traded on any other stock exchange or trading or quotation system.
5. Australian companies do not have authorized share capital. There is generally no limit in the Corporations Act or the corporate constitution of the Applicant on the power of the Board to issue Ordinary Shares. However, subject to certain exceptions, the ASX Listing Rules (the rules of the ASX which govern the conduct and disclosure of companies listed thereon and which are amended from time to time) prohibit an ASX-listed company from issuing shares or options representing more than 15% of the issued capital in any 12-month period without shareholder approval. The ASX Listing Rules also permit an ASX-listed company to issue up to an additional 10% of its issued capital within the following 12 months, if approved by the shareholders at an annual general meeting. The Ordinary Shares have no nominal or par value, they entitle their holder to vote at general meetings, and are recorded in the accounts of the Applicant at their issue price.
6. As of June 24, 2019, the Applicant had issued and outstanding the following securities:
(i) 164,255,158 Ordinary Shares,
(ii) unlisted options issued under the Applicant's employee share ownership plan to acquire an aggregate of 9,160,000 Ordinary Shares at exercise prices ranging from A$0.14 to A$0.64;
(iii) unlisted warrants to acquire an aggregate of 13,180,418 Ordinary Shares at a price of C$0.65 each expiring June 30, 2020; and
(iv) unlisted warrants to acquire an aggregate of 7,142,900 Ordinary Shares at a price of C$0.65 each expiring April 12, 2021.
7. As a consequence of listing its shares on the TSXV, the Applicant became a reporting issuer under the Securities Act (Alberta) (the Alberta Act) and under the Securities Act (British Columbia) (the BC Act) on July 6, 2017.
8. The Applicant is not a reporting issuer or the equivalent in any jurisdiction in Canada other than Alberta or British Columbia.
9. The Applicant is not on the list of defaulting reporting issuers maintained pursuant to the Alberta Act or the BC Act and is not in default of any of its obligations under the Alberta Act or the BC Act or the rules and regulations made thereunder. There is no Australian equivalent to the lists of defaulting reporting issuers maintained pursuant to the BC Act and the Alberta Act.
10. The continuous disclosure materials filed by the Applicant under the securities legislation in Alberta and British Columbia are available on the System for Electronic Document Analysis and Retrieval.
11. The continuous disclosure materials filed by the Applicant under the requirements of the Alberta Act and the BC Act are substantially the same as the continuous disclosure requirements under the Act.
12. The Applicant is also subject to the continuous disclosure reporting requirements of the ASX.
13. The Applicant is not in default of any of the rules, regulations or policies of the TSXV.
14. The Applicant does not intend to list or post the Ordinary Shares for trading on any other stock exchange or marketplace in Canada, other than the TSXV.
15. The TSXV requires all of its listed issuers, which are not otherwise reporting issuers in Ontario, to assess whether they have a significant connection with Ontario, as defined in Policy 1.1 of the TSXV Corporate Finance Manual, and, upon first becoming aware that it has a significant connection to Ontario, to promptly make a bona fide application to the Commission to be designated a reporting issuer in Ontario.
16. The Applicant has determined that it has a significant connection to Ontario in accordance with the policies of the TSXV as several of the Applicant's officers, including the Managing Director, Chief Financial Officer and Chief Commercial Officer, are residents of Ontario.
17. The Applicant's principal regulator is the British Columbia Securities Commission. The Commission will be the principal regulator of the Applicant once it has obtained reporting issuer status in Ontario. Upon granting of this Order, the Applicant will amend its SEDAR profile to indicate that the Commission is its principal regulator.
18. On March 28, 2019 a group of shareholders in Australia filed a notice under the Corporations Act indicating that they were acting together to requisition two shareholders' meetings for the purpose of removing certain directors of the Applicant and appointing new directors. The maximum shareholding of these persons was 13.12% of the outstanding Ordinary Shares. The requisitioning shareholders were successful in that the directors that they wanted to remove resigned from office and the new directors nominated by them were elected. On June 17, 2019, these shareholders filed a further notice under the Corporations Act indicating that they were no longer acting together.
19. The Applicant does not have a shareholder that holds sufficient securities of the Applicant to affect materially the control of the Applicant.
20. Neither the Applicant nor any of its officers or directors has:
a) been subject to any penalties or sanctions imposed by a court relating to Canadian securities legislation or by a Canadian securities regulatory authority;
b) entered into a settlement agreement with a Canadian securities regulatory authority; or
c) been subject to any other penalties or sanctions imposed by a court or regulatory body that would be likely to be considered important to a reasonable investor making an investment decision.
21. Neither the Applicant nor any of its officers or directors is or has been subject to:
a) any known ongoing or concluded investigation by a Canadian securities regulatory authority, or a court or regulatory body, other than a Canadian securities regulatory authority, that would be likely to be considered important to a reasonable investor making an investment decision; or
b) any bankruptcy or insolvency proceedings, or other proceedings, arrangements or compromises with creditors, or the appointment of a receiver, receiver manager or trustee, within the preceding 10 years.
22. None of the officers or directors of the Applicant, is or has been at the time of such event an officer or director of any other issuer which is or has been subject to:
a) any cease trade or similar orders, or orders that denied access to any exemptions under Ontario securities law, for a period of more than 30 consecutive days within the preceding 10 years; or
b) any bankruptcy or insolvency proceedings, or other proceedings, arrangements or compromises with creditors, or the appointment of a receiver, receiver manager or trustee, within the preceding 10 years.
AND UPON the Commission being satisfied that granting this Order would not be prejudicial to the public interest;
IT IS HEREBY ORDERED pursuant to clause 1(11)(b) of the Act, that the Applicant is a reporting issuer for the purposes of Ontario securities law.
DATED at Toronto, Ontario on this 4th day of July, 2019.
"Michael Balter"
Manager, Corporate Finance
Ontario Securities Commission