February 1, 2013
IN THE MATTER OF
THE SECURITIES ACT
R.S.O. 1990, CHAPTER S.5, AS AMENDED
IN THE MATTER OF
UPON the Director having received an application from the Filer for an order under subparagraph 1(10)(a)(ii) of the Act that the Filer 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 Filer representing to the Commission as follows:
1. The Filer is a company established under the Companies (Jersey) Law 1991 (as amended).
2. The registered and head office of the Filer is located at Third Floor, Mielles House, La Rue des Mielles, St. Helier, Jersey, JE2 3QD, Channel Islands. The operational headquarters of the Filer is located at Rua de Mukumburra, no386, Maputo, Mozambique.
3. The Filer has no operations, employees or offices in Canada.
4. The Filer is a producer of tantalum pentoxide concentrate, a rare specialty metal used widely in the consumer electronics industry. The Filer's mining assets are located in the Zambezia province of north eastern Mozambique and include its open cast mine, the Marropino mine and the Morrua project.
5. The Filer's ordinary shares (the "Ordinary Shares") have been listed on AIM since March 20, 2007 and on the Plus Stock Exchange (now the Growth Market of the ICAP Securities and Derivatives Exchange or "ISDX Growth Market") since April 11, 2011.
6. On December 23, 2010, the Ordinary Shares were listed on the Toronto Stock Exchange (the "TSX").
7. On March 4, 2011, the articles of the Filer were amended by special resolution to consolidate every twenty existing £0.0004 Ordinary Shares into one new £0.008 Ordinary Shares and to increase the authorised share capital to £7,500,000 by the creation of 7,000,000 preference shares of £1.00 each (the "Preference Shares"). The Ordinary Shares began trading on a post-consolidation basis on March 11, 2011. On April 11, 2011, the Preference Shares were listed on the Plus Stock Exchange. The only securities that the Filer currently has outstanding are the Ordinary Shares and the Preference Shares.
8. The Filer is not a reporting issuer in any other jurisdiction in Canada other than Ontario.
9. The Filer had discussions 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 March 8, 2012.
10. None of the Filer's securities are listed, traded or quoted on a marketplace in Canada as defined in National Instrument 21-101 -- Marketplace Operation and the Filer does not intend to have its securities listed, traded or quoted on such a marketplace in Canada.
11. The Filer is not in default of any reporting or other requirement of AIM or the ISDX Growth Market.
12. The Filer is not in default of any of its obligations under the Securities Act (Ontario) as a reporting issuer.
13. To the knowledge of the Filer, residents of Canada do not directly or indirectly beneficially own more than 2% of each class or series of outstanding securities of the Filer worldwide. The due diligence conducted by the Filer in support of the foregoing representation is as follows:
a. Using a record date of September 25, 2012, the Filer caused Broadridge Financial Services, Inc. ("Broadridge") to conduct a search to confirm the residency of the beneficial holders of the Ordinary Shares held through intermediaries who are clients of Broadridge. The search found that 129 residents of Canada beneficially held 1,028,400 Ordinary Shares, broken down by province as follow:
• Alberta -- 29 shareholders holding 193,455 Ordinary Shares;
• British Columbia -- 28 shareholders holding 55,250 Ordinary Shares;
• Manitoba -- 4 shareholders holding 5,451 Ordinary Shares;
• Northwest Territories -- 1 shareholder holding 1,600 Ordinary Shares;
• Ontario -- 49 shareholders holding 710,915 Ordinary Shares;
• Quebec -- 15 shareholders holding 56,624 Ordinary Shares;
• Saskatchewan -- 2 shareholders holding 4,105 Ordinary Shares; and
• Unknown -- 1 shareholder holding 1,000 Ordinary Shares,
b. An additional search of the Jersey share register by the Filer's transfer agent, Computershare Investor Services PLC ("Computershare UK"), indicated there were an additional 4 registered nominees/brokers and 2 registered shareholders with a Canadian address as of September 17, 2012. These registered holders together held 339,053 shares at that time.
c. As of September 17, 2012, there were 119,658,819 Ordinary Shares issued and outstanding. Therefore, based on the information provided by Computershare UK and Broadridge and assuming Canadian registered nominees/brokers hold Ordinary Shares only on behalf of Canadian resident beneficial shareholders, Canadian residents beneficially owned can be no more than 1.14% of the total outstanding Ordinary Shares.
14. To the knowledge of the Filer, residents of Canada do not directly or indirectly comprise more than 2% of the total number of shareholders of the Filer worldwide. The due diligence conducted by the Filer in support of the foregoing representation is as follows:
a. According to the Jersey share register, as of September 17, 2012, there were 573 registered holders, 386 of which were nominees/brokers. According to Allenby Capital Limited, the Filer's Nominated Advisor, and Computershare UK, the only way to obtain information about beneficial holders indirectly holding Ordinary Shares worldwide is to contact each nominee/broker directly by mailing an inquiry letter to each of the nominee/brokers. the Filer believes that the majority of nominees/brokers would likely not respond. As such, information concerning the total number of shareholders holding Ordinary Shares indirectly worldwide is practically impossible to obtain.
b. However, given the percentage of Canadian registered nominees/brokers holding Ordinary Shares directly is approximately 1.04% (4 nominees/brokers with Canadian addresses divided by 386 nominees/brokers in total) and assuming the percentage of Canadian registered nominees/brokers holding Ordinary Shares directly is proportional to the percentage of Canadian beneficial shareholders holding Ordinary Shares indirectly, it is reasonable to conclude that the percentage of Canadian beneficial shareholders holding Ordinary Shares indirectly is also approximately 1.04%.
c. Based on the information above, assuming that each Canadian registered nominee/broker holds Ordinary Shares on behalf of, on average, 32 (129 beneficial holders divided by 4 registered brokers) Canadian beneficial shareholders and that this average is representative of the holdings of non-Canadian nominees/brokers, it is reasonable to conclude that there are a total of 12,925 beneficial and registered shareholders of the Filer worldwide and that the percentage of Ordinary Shares held by residents of Canada is approximately 1.04%.
d. Alternatively, assuming that each registered nominee/broker holds Ordinary Shares on behalf of at least 15 beneficial shareholders on average, it is reasonable to conclude that there are a total of at least 6,363 registered and beneficial shareholders of the Filer worldwide and that the percentage of Ordinary Shares held by residents of Canada is no more than approximately 2%.
15. All Preference Shares are beneficially owned, directly or indirectly, by non-Canadians or non-residents of Canada.
16. In the past 12 months, the Filer has not taken steps to create a market in Canada for the Ordinary Shares or Preference 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 Filer only attracted a de minimis number of Canadian investors and the daily average volume of trading of the Ordinary Shares in the 12 months prior to delisting from the TSX was approximately 28,000 Ordinary Shares, which accounted for approximately 8% of the Filer's worldwide daily trading volumes. In contrast, the average daily volume on AIM for the same period represented approximately 313,000 Ordinary Shares.
17. The Filer files continuous disclosure reports under U.K. securities laws and follows the exchange requirements of AIM and the ISDX Growth Market.
18. The Filer qualifies as a "Designated Foreign Issuer" under National Instrument 71-102 -- Continuous Disclosure and Other Exemptions Relating to Foreign Issuers ("NI 71-102") and has relied on and complied with the exemptions from Canadian continuous disclosure requirements afforded to Designated Foreign Issuers under Part 5 of NI 71-102.
19. The Filer has provided advance notice to Canadian resident securityholders in a press release dated December 14, 2012 that it has applied to the Commission for a decision that it is not a reporting issuer in Canada and, if that decision is made, the Filer will no longer be a reporting issuer in any jurisdiction in Canada.
20. The Filer undertakes to concurrently deliver to its Canadian securityholders all disclosure it would be required under U.K. securities law or exchange requirements to deliver to U.K. resident securityholders.
21. The Filer 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 Filer is not a reporting issuer.