National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Filer making securities exchange take-over bid -- First trade of securities of the filer issued as consideration under the bid exempted from the prospectus requirement, subject to condition that the trade is not a control distribution -- Filer is a reporting issuer in one jurisdiction as a result of filing take-over bid circular and first trades of Filer's securities that take place in that jurisdiction are not subject to prospectus requirement -- Relief enables all securityholders who receive Filer's securities as consideration in the bid to also receive freely tradable securities.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 53, 74.
August 31, 2010
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
THE PROVINCE OF ONTARIO
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
SYNCHRONICA PLC (the "Filer")
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the "Legislation") that the first trade of ordinary shares (each, a "Synchronica Share") and warrants to purchase Synchronica Shares (each, a "Synchronica Warrant") of the Filer, to be distributed pursuant to the Filer's take-over bid (the "Offer") to acquire all of the issued and outstanding iseemedia Share and iseemedia Warrants (the terms "iseemedia Shares" and "iseemedia Warrants" as defined in the Representations below) in accordance with the terms of the take-over bid circular dated July 22, 2010 (the "Circular") prepared in connection with the Offer, be exempt from the prospectus requirement (the "Exemption Sought").
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) The Ontario Securities Commission ("the Commission") is the principal regulator for this application, and
(b) The Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Nunavut, the Northwest Territories, and Yukon (together with Ontario, the "First Trade Jurisdictions").
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
1. The Filer was incorporated in England and Wales under the name "Synchronica plc" on December 12, 2005.
2. The share capital of the Filer consists of ordinary shares without restrictions on transfer. As of July 19, 2010, 839,619,249 ordinary shares were issued and outstanding, along with 38,850,000 issued and outstanding warrants exercisable for the ordinary shares of Synchronica, and 59,244,443 issued and outstanding options exercisable for the ordinary shares of Synchronica.
3. The Filer is a public limited company traded on AIM, a market operated by the London Stock Exchange, under the symbol SYNC.L.
4. The Filer has applied to list the Synchronica Shares distributed in connection with the Offer on the TSX Venture Exchange (the "TSXV"). Although the Filer's receipt, prior to the date on which the Filer first allots and issues Synchronica Shares in exchange for iseemedia Shares deposited under the Offer, of conditional approval from the TSXV for the listing of the Synchronica Shares on the TSXV is a condition to the completion of the Offer, the Filer does not expect to receive such conditional approval from the TSXV by the expiry date of the Offer, and will likely waive this condition to the completion of the Offer (with the agreement of iseemedia as provided in the Circular).
5. By virtue of the definitions of "reporting issuer" contained in the securities legislation of Québec, the Filer became a reporting issuer in Québec when the securities offered as consideration in the Offer were described in a circular filed with the Autorité des marches financiers (the "non-First Trade Jurisdiction"). However, the Filer will not become a reporting issuer in the First Trade Jurisdictions as a result of filing the Circular and/or taking up the securities tendered to the Offer.
6. iseemedia is a corporation incorporated under the Canada Business Corporations Act, with its registered office and principal place of business located in Toronto, Ontario. iseemedia is a reporting issuer in Alberta, British Columbia, Ontario and Québec, and its common shares (the "iseemedia Shares") are listed on the TSXV under the trading symbol "IEE".
7. On July 20, 2010, the Filer and iseemedia jointly announced that they had entered into a definitive support agreement, pursuant to which the Filer would make the Offer.
8. On July 19, 2010, the Filer entered into lock-up agreements with all of the directors and senior management of iseemedia and certain other iseemedia shareholders with respect to an aggregate of 17,140,535 iseemedia Shares, representing approximately 23.4% of the issued and outstanding iseemedia Shares on a fully-diluted basis as at July 22, 2010, and with respect to the exercise of any warrants to purchase iseemedia Shares (the "iseemedia Warrants") or options to purchase iseemedia Shares (the "iseemedia Options") held by the locked-up shareholders. The Filer does not presently beneficially own, directly or indirectly, any iseemedia Shares.
9. As publicly disclosed by iseemedia, there are outstanding 73,102,363 iseemedia Shares as at July 22, 2010. In addition, there are outstanding 8,498,750 iseemedia Warrants and 5,682,000 iseemedia Options.
10. The Filer has not offered to purchase any options or other securities of iseemedia other than the iseemedia Shares and iseemedia Warrants.
11. The Filer made the Offer by mailing the Circular, together with all related documents, to holders of iseemedia Shares (the "iseemedia Shareholders") and holders of iseemedia Warrants (the "iseemedia Warrantholders"), which Circular described, among other things, the Offer. The Circular has been filed under the iseemedia issuer profile on the System for Electronic Document Analysis and Retrieval ("SEDAR").
12. Pursuant to National Policy 11-203, section 3.6(5), the principal regulator is the Ontario Securities Commission (the "Commission"), for the following reasons:
a. The Filer's request for the Exemption Sought relates to the exemption specified in Section 2.11 of NI 45-102, which is an exemption from the prospectus requirements with respect to a trade in a security acquired in a take-over bid or issuer bid; and
b. The head office of the target company, iseemedia, is located in Ontario and iseemedia is traded on the TSXV.
13. Neither the Filer nor iseemedia is on the list of defaulting reporting issuers maintained by the non-First Trade Jurisdiction, or the First Trade Jurisdictions.
14. The distribution of the Synchronica Shares and Synchronica Warrants pursuant to the Offer will be exempt from the prospectus requirements in each of the provinces and territories in Canada pursuant to Section 2.16 of National Instrument 45-106 -- Prospectus and Registration Exemptions.
15. Pursuant to Section 2.6 of NI 45-102, the first trade in securities acquired pursuant to a securities exchange take-over bid is deemed to be a distribution, unless certain conditions are met. In the current circumstances, Synchronica will not be a "reporting issuer" in the First Trade Jurisdictions on the date that the iseemedia Shares or iseemedia Warrants are first taken up under the Offer, and the Synchronica securities so issued under the Offer would be subject to a four-month seasoning period.
16. While Section 2.11 of NI 45-102 provides first trade relief in respect of a security acquired in a securities exchange take-over bid, such relief is subject to the condition that the offeror was a reporting issuer in the local jurisdiction on the date the securities of the offeree issuer are first taken up pursuant to the take-over bid. As the Filer will not have become a reporting issuer in the First Trade Jurisdictions at such time, the relief to the seasoning period requirement that is provided by Section 2.11 NI 45-102 is unavailable in the First Trade Jurisdictions.
17. If the decision requested herein is not granted, iseemedia Shareholders or iseemedia Warrantholders in the non-First Trade Jurisdiction who acquire Synchronica Shares or Synchronica Warrants pursuant to the Offer will, pursuant to NI 45-102, be free to trade such securities immediately after the Offer is completed, whereas iseemedia Shareholders or iseemedia Warrantholders who acquire Synchronica Shares or Synchronica Warrants pursuant to the Offer in the First Trade Jurisdictions will be subject to a four month seasoning period. The Exemption Sought is intended to result in all of the iseemedia Shareholders and iseemedia Warrantholders resident in Canada being treated in the same manner.
19. It is a condition to the completion of the Offer that the Synchronica Shares and Synchronica Warrants can be freely re-sold in Canada.
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Exemption Sought is granted provided that any first trade of Synchronica Shares or Synchronica Warrants is not a control distribution.