Mutual Reliance Review System for Exemptive Relief Applications -- Take-over bid -- Exemption from Part XX of Securities Act (Ontario) -- De minimis exemption unavailable because Australia is not a jurisdiction recognized for the purposes of clause 93(1)(e) of the Securities Act (Ontario) -- Bid exempted from the requirements of Part XX, subject to certain conditions.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 93(1)(e), 95-100, 104(2)(c).
Recognition Orders Cited
In the Matter of the Recognition of Certain Jurisdictions (Clauses 93(1)(e) and 93(3)(h) of Act) (1997) 20 OSCB 1035.
March 26, 2007
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ONTARIO AND ALBERTA (the "Jurisdictions")
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
PALADIN RESOURCES LTD (the "Filer")
MRRS DECISION DOCUMENT
The local securities regulatory authority or regulator (the "Decision Maker") in each of the Jurisdictions has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the "Legislation") that the requirements contained in the Legislation relating to take-over bids, including the provisions relating to delivery of an offer and take over bid circular and any notices of change or variation thereto, delivery of a directors' circular and any notices of change or variation thereto, minimum deposit periods and withdrawal rights, take-up of and payment for securities tendered to a take-over bid, disclosure, financing, restrictions upon purchases of securities, identical consideration and collateral benefits (the "Take-over Bid Requirements") shall not apply to the proposed offer by the Filer (the "Offer") to acquire all of the outstanding ordinary shares of Summit Resources Limited ("Summit") (the "Requested Relief").
Under the Mutual Reliance Review System for Exemptive Relief Applications:
(a) the Ontario Securities Commission is the principal regulator for this application; and
(b) this MRRS decision document evidences the decision of each Decision Maker.
Defined terms contained in National Instrument 14-101 Definitions have the same meaning in this decision unless they are defined in this decision.
This decision is based on the following facts represented by the Filer:
1. The Filer is a corporation incorporated under the laws of Australia on September 23, 1991. The Filer operates in the resource industry with a principal business of evaluating and developing uranium projects in Africa and Australia.
2. The Filer is listed on both the Australian Securities Exchange (the "ASX") and the Toronto Stock Exchange with subsidiary listings on the Munich Stock Exchange, Berlin-Bremen Stock Exchange, Stuttgart Stock Exchange and Frankfurt Stock Exchange.
3. The Filer's registered office and principal place of business is Grand Central, 1st Floor, 26 Railway Road, Subiaco, Western Australia 6008, Australia.
4. The Filer is a reporting issuer in Ontario.
5. Summit is a corporation originally incorporated under the laws of New Zealand in 1987. It transferred its domicile of incorporation to Western Australia on December 18, 2001 and is thus considered to be incorporated under the laws of Australia. Summit is a uranium, copper, gold and base metal exploration and mine development company with projects in Mount Isa metals province in northwest Queensland, Australia.
6. Summit's registered office and principal place of business is 15 Rheola Street, West Perth Western Australia 6005, Australia.
7. Summit is listed on the ASX and the New Zealand Stock Exchange. Summit is not a reporting issuer or the equivalent in any province or territory of Canada and its securities are not listed for trading on any Canadian stock exchange.
8. On February 27, 2007, the Filer announced its offer (the "Offer") to acquire all of the outstanding ordinary shares of Summit (the "Summit Shares") for consideration of 1 fully paid ordinary share of the Filer (a "Paladin Share") for every 2.04 fully paid Summit Shares.
9. According to documents provided by Summit to the ASX, as at February 27, 2007 there were 197,440,010 Summit Shares issued.
10. The Filer lodged its bidder's statement containing the terms and conditions of the Offer and prescribed disclosure (the "Offer Document") with the Australian Securities and Investments Commission (the "ASIC") on February 27, 2007. In accordance with Australian law, the Filer plans to mail the Offer Document to all holders of Summit Shares (the "Summit Shareholders") on Thursday, March 15, 2007 and Friday March 16, 2007, and the Offer will be expected to close (unless extended or withdrawn) at 5:00 p.m. (Perth time) on Monday, April 16, 2007.
11. The Offer is in accordance with applicable corporate and securities laws of Australia, which include the requirement that a bidder's statement be prepared by the Filer and lodged with the ASIC, and the requirement that the Filer send its bidder's statement and other materials relating to an offer to all Summit Shareholders, including those with registered addresses in the Jurisdictions.
12. Based on the list of registered Summit Shareholders received by the Filer, as at February 28, 2007 there are four (4) Summit Shareholders resident in Canada (out of approximately 5,600 Summit Shareholders worldwide), holding a total of 19,100 Summit Shares representing approximately 0.0095% of the outstanding Summit Shares. Based on the list of registered Summit Shareholders received by the Filer pursuant to applicable ASX rules, the following table sets out the provinces in which the Canadian Summit Shareholders reside:
13. If any material relating to the Offer is sent by the Filer or its exchange agent to Summit Shareholders in Australia or New Zealand, such material will also be sent to Summit Shareholders residing in the Jurisdictions to their addresses as shown on the list of registered Summit Shareholders, and will be filed concurrently with the Decision Maker in each Jurisdiction.
14. All of the holders of Summit Shares to whom the Offer is extended who are resident in Australia, New Zealand or the Jurisdictions will be treated equally and Summit Shareholders resident in the Jurisdictions will be entitled to participate in the Offer on the same terms and conditions as those extended to Summit Shareholders resident in Australia and New Zealand.
15. The de minimis exemption from the Take-over Bid Requirements is not available to the Filer since the bid is not being made in compliance with the laws of a jurisdiction that is recognized by the Decision Makers for the purposes of the de minimis exemption.
16. If the Offer is completed and the Filer acquires 90% or more of the Summit Shares, the Filer intends to compulsorily acquire the remaining outstanding Summit Shares pursuant to Australian corporate law.
17. Each of the Decision Makers is satisfied that the test contained in the Legislation that provides the Decision Maker with the jurisdiction to make the Decision has been met.
18. The decision of the Decision Makers under the Legislation is that the Requested Relief is granted provided that:
(a) the Offer, and any amendments to the Offer, is made in compliance with applicable Australian laws, and
(b) all materials relating to the Offer and any amendments thereto, which are sent by or on behalf of the Filer to Summit Shareholders resident in Australia and New Zealand are concurrently sent to Summit Shareholders with registered addresses in the Jurisdictions and copies of those materials are filed concurrently with the Decision Maker in each Jurisdiction.