National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- an issuer wants relief from the requirement to include prospectus-level disclosure in an information circular to be circulated in connection with an arrangement, reorganization, acquisition or amalgamation -- The issuer will be acquired by a foreign entity that is not currently a reporting issuer in Canada -- The foreign entity is not required to prepare quarterly financial statements according to its governing laws -- the issuer proposes to not include in the information circular the foreign entity's interim financial report and related MD&A as at and for the three-month period ended March 31, 2013 (and comparative period ended March 31, 2012) and applicable pro forma financial statements -- the issuer will provide alternate financial information about the foreign entity in an addendum to the information circular -- the addendum will include the foreign entity's interim financial report and related MD&A as at and for the six-month period ended June 30, 2013 (and comparative period ended June 30, 2012) and applicable pro forma financial statements -- sufficient information about the parties to the transaction to enable shareholders to assess it as a whole.
Applicable Legislative Provisions
National Instrument 51-102 Continuous Disclosure Obligations, s.13.1
August 7, 2013
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
PORTAGE MINERALS INC. (Portage) AND
TRI-STAR RESOURCES PLC
(Tri-Star and together with Portage, the Filers)
The principal regulator in the Jurisdiction has received an application from the Filers for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) exempting the Filers from the requirements under Item 14.2 of Form 51-102F5, Information Circular (Form 51-102F5) which would include the requirements under Item 32.3 of Form 41-101F1, Information Required in a Prospectus (Form 41-101F1) to provide a comparative interim financial report of Tri-Star for the three-month period ended March 31, 2013 (and the comparative period ended March 31, 2012), the requirements in Item 8.2 of Form 41-101F1 to include management's discussion and analysis (MD&A) for such interim financial report, and the requirements under Item 35.6(3) of Form 41-101F1 to include Interim Pro Forma Financial Statements (as defined below) as at and for the three-month period ended March 31, 2013 in the Portage Circular (as defined below) (the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application, and
(b) the Filers have provided notice that section 4.7(1) of Multilateral Instrument 11-102, Passport System (MI 11-102) is intended to be relied upon in Alberta and British Columbia (together with the Jurisdiction, the 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 Filers:
1. Portage is a corporation incorporated under the Canada Business Corporations Act (the CBCA) and the registered and head office of Portage is located in Toronto, Ontario.
2. The common shares of Portage are listed on the Canadian National Stock Exchange (CNSX) under the symbol "RKX".
3. Portage is a reporting issuer, or the equivalent, in each of the Jurisdictions, and, to its knowledge, is not in default of any requirements under the Legislation.
4. Portage is a junior mining exploration and development company engaged in mineral exploration in New Brunswick, Canada.
5. Tri-Star was incorporated under the laws of England and Wales under the name of "Canisp plc". It changed its name to "Tri-Star Resources plc" on August 26, 2010.
6. The registered office and the head office of Tri-Star are located in the United Kingdom; the mind and management of Tri-Star is located outside Canada.
7. The ordinary shares of Tri-Star are traded on the AIM Market (AIM) of the London Stock Exchange under the symbol "TSTR".
8. Tri-Star is subject to the overall regulation of the Financial Conduct Authority of the United Kingdom (the FCA) and the ongoing reporting requirements under the AIM Rules for Companies (collectively, the UK Requirements).
9. Tri-Star is not currently a reporting issuer in the Jurisdictions or any Canadian jurisdiction, and, to its knowledge, is not in default of any requirements under the Legislation.
10. Tri-Star is an antimony mining, exploration and development company with projects in Turkey, Canada and in member states of Cooperation Council for the Arab States of the Gulf.
11. Portage and Tri-Star entered into a letter of intent dated May 1, 2013 (LOI) which sets out the terms and conditions of a proposed transaction (the Transaction), whereby Tri-Star will acquire all of the issued and outstanding common shares of Portage (the Portage Shares), through the amalgamation of Tri-Star Antimony Canada Inc. (Tri-Star Canada), a wholly-owned subsidiary of Tri-Star, and Portage in exchange for the ordinary shares of Tri-Star (Tri-Star Shares). In connection with the Transaction the shareholders of Portage (Portage Shareholders) will receive approximately an aggregate of 1,086,000,000 Tri-Star Shares representing approximately 15.95% of the issued and outstanding Tri-Star Shares as of the effective date of the Transaction.
12. At the date of the LOI, Tri-Star had a market capitalization of approximately £19,173,881.38 (approximately $30,678,210.21 CAD) and the aggregate purchase price (based on the value of Tri-Star Shares on AIM to be issued to the Portage Shareholders) was approximately £3,529,489.14 (approximately $5,647,182.62 CAD).
13. There is currently no market in Canada for Tri-Star's securities and none is expected to develop. Tri-Star does not currently intend to list any securities on any exchange or marketplace in Canada.
14. If Tri-Star were a reporting issuer as of the date thereof, Tri-Star would meet the definition of a "designated foreign issuer" under National Instrument 52-107 -- Acceptable Accounting Principles and Auditing Standards (NI 52-107) and National Instrument 71-102 -- Continuous Disclosure and Other Exemptions Relating to Foreign Issuers (NI 71-102).
15. Upon completion of the Transaction, Tri-Star will be a reporting issuer in the Jurisdictions and will be subject to continuous disclosure obligations under National Instrument 51-102 -- Continuous Disclosure Obligations (NI 51-102).
16. Upon completion of the Transaction, Tri-Star would not meet the definition of a "designated foreign issuer" under NI 52-107 and NI 71-102 if, for the purposes of paragraph (c) of the definition of "designated foreign issuer" in NI 52-107 and NI 71-102 and paragraph (a) of the definition of "foreign issuer" in NI 52-107 and paragraph (a) of the definition of "foreign reporting issuer" in NI 71-102, the calculation were made immediately upon the completion of the Transaction.
17. In connection with the Transaction, Portage will be preparing and filing, on the System for Electronic Document Analysis and Retrieval (SEDAR), and mailing to Portage Shareholders a management information circular providing Portage Shareholders with notice of the special meeting that will be called and held to consider the approval of the Transaction (the Special Meeting) and describing, among other things, the terms of the Transaction and the Tri-Star Shares to be issued as consideration for the acquisition of the Portage Shares (the Portage Circular).
18. Item 14.2 of Form 51-102F5 provides that in respect of, restructuring transactions under which securities are to be changed, exchanged, issued or distributed, management information circulars must include disclosure for each entity, other than the company in respect of which the applicable management information circular has been prepared, whose securities are being changed, exchanged, issued or distributed, if:
a. the matter is a restructuring transaction; and
b. the securityholders of the company in respect of which the management information circular has been prepared will have an interest in that entity after the restructuring transaction has been completed.
The disclosure in this regard must be the disclosure (including financial statements) prescribed under securities legislation and described in the form of prospectus that the applicable entity would be eligible to use immediately prior to the sending and filing of the information circular in respect of the restructuring transaction, for a distribution of securities in the jurisdiction.
19. Immediately prior to the sending and filing of the Portage Circular, Tri-Star will only be eligible to use a long-form prospectus prepared in accordance with Form 41-101F1.
20. Item 32.3 of Form 41-101F1 requires the Portage Circular to contain a comparative interim financial report and MD&A for Tri-Star for the interim period ending March 31, 2013 (and the comparative period ended March 31, 2012).
21. Under Item 35.6(3) of Form 41-101F1, the following pro forma financial statements must be included in the Portage Circular:
(i) a pro forma statement of financial position of Tri-Star as at March 31, 2013 giving effect to the acquisition of Portage by Tri-Star as if it had occurred on such date; and
(ii) pro forma income statements of Tri-Star for the period ended March 31, 2013, giving effect to the acquisition of Portage by Tri-Star as if it had occurred on January 1, 2013 and related pro forma earnings per share (collectively, the March Interim Pro Forma Financial Statements).
22. Pursuant to the UK Requirements, Tri-Star is required to prepare interim financial statements on a semi-annual basis. Tri-Star's most recently prepared interim statements are for the six-month period ended June 30, 2012. Tri-Star announced its annual results for the financial year ended December 31, 2012 on June 20, 2013. Quarterly financial statements are not required by the UK Requirements and Tri-Star has not prepared and is not in a position to prepare or include in the Portage Circular an interim financial report and the MD&A for the three-month period ended March 31, 2013 or the comparative three-month period ended March 31, 2012.
23. Additionally, at least 5 days prior to the Special Meeting, Tri-Star will file on SEDAR (under Portage's profile since Tri-Star will not yet be a reporting issuer) and on Portage's website / Tri-Star's website an addendum to the Portage Circular (the Addendum) that will include:
(a) unaudited interim financial report of Tri-Star as at, and for the six-month period ended, June 30, 2013 (and the comparative period ended June 30, 2012), (the Tri-Star Half-Year Financial Report) which in accordance with the UK Requirements do not include a statement of comprehensive income for the three-month period then ended (and the comparative period ended June 30, 2012);
(b) MD&A in respect of the Tri-Star Half-Year Financial Report; and
(c) pro forma financial statements of Tri-Star giving effect to the acquisition of Portage by Tri-Star as if it had occurred, for purposes of the pro forma statement of financial position as at June 30, 2013, on such date, and for purposes of the pro forma income statement for the period ended June 30, 2013 related pro forma earnings per share, as if the acquisition of Portage by Tri-Star had occurred on January 1, 2013 (the Half-Year Pro Forma Financial Statements), provided the acquisition of Portage by Tri-Star meets the definition of a "significant acquisition" under Section 8.3 of NI 51-102 as at June 30, 2013.
24. The Filers will issue a news release announcing the issuance and the filing of the Addendum concurrently with the filing of the Addendum (theNews Release) and Portage will include in the Portage Circular a reference to the Addendum, the content to be included in the Addendum, and the procedure for its dissemination.
25. The Filers will provide hard copies of the Addendum and the News Release to all Portage Shareholders present at the Special Meeting.
26. In accordance with the provisions of the CBCA and Portage's by-laws, and as noted in the Portage Circular, any registered Portage Shareholder will have an opportunity to revoke a previously-returned proxy after review of the Addendum prior to the Special Meeting by executing and delivering a written notice of revocation in the manner specified in the proxy instructions or at the Special Meeting by depositing such executed written notice with the chair of the Special Meeting.
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:
(a) the Portage Circular will otherwise provide prospectus-level disclosure as required by Form 51-102F5 and Form 41-101F1, including the following financial statements/disclosure for Tri-Star:
(i) audited statements of comprehensive income, changes in equity and cash flow statements for the years ended December 31, 2012, 2011 and 2010, all prepared in accordance with International Financial Reporting Standards (IFRS) and audited in accordance with International Standards on Auditing (U.K. and Ireland);
(ii) audited balance sheets for the years ended December 31, 2012 and 2011, all prepared in accordance with IFRS and audited in accordance with International Standards on Auditing (U.K. and Ireland);
(iii) unaudited pro forma financial statements in respect of the combination of Tri-Star and Portage for the year ended December 31, 2012;
(iv) all material changes in the affairs of Tri-Star between the date of Tri-Star's 2012 annual financial statements and the date of the Portage Circular; and,
(b) at least 5 days prior to the Special Meeting, Tri-Star will file on SEDAR the Addendum;
(c) the Filers will issue the News Release concurrently with the filing of the Addendum; and,
(d) Portage will include in the Portage Circular (i) a reference to the Addendum, the content to be included in the Addendum, and the procedure for its dissemination, and (ii) a statement as to a registered Portage Shareholder's right to revoke a proxy as described in paragraph 26 above, and the Filers will provide hard copies of the Addendum and the News Release to all Portage Shareholders present at the Special Meeting.