Subsection 1(10) of the Securities Act -- Application by a reporting issuer for an order that it is not a reporting issuer -- To the knowledge of the reporting issuer, and based on diligent enquiry, residents of Canada (i) do not directly or indirectly beneficially own more than 2% of each class or series of outstanding securities of the reporting issuer worldwide, and (ii) do not directly or indirectly comprise more than 2% of the total number of shareholders of the reporting issuer worldwide -- Issuer only attracted a de minimis number of Canadian investors and the daily average volume of trading of the issuer's ordinary shares in the 12 months prior to de-listing from the TSX accounted for less than 0.2% of the issuer's worldwide daily trading volumes -- Issuer is subject to Australian securities law and requirements of the Australian Stock Exchange -- Issuer has undertaken that it will concurrently deliver to its Canadian securityholders all disclosure material it is required under Australian reporting requirements to deliver to Australian resident securityholders -- Issuer has provided notice through a press release that it has submitted an application to cease to be a reporting issuer in Ontario.
Applicable Legislative Provisions
Securities Act (Ontario), s. 1(10)(a)(ii).
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, CHAPTER S.5, AS AMENDED
IN THE MATTER OF
TIGER RESOURCES LIMITED
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 was incorporated under the laws of Australia on January 31, 1997.
2. The registered and head office of the Filer is located at Level 1, 1152 Hay Street, West Perth, WA 6005, Australia.
3. The Filer is authorized to issue an unlimited number of ordinary shares ("Ordinary Shares"). As of September 16, 2013, there were 674,770,269 Ordinary Shares issued and outstanding.
4. As of September 16, 2013, there were also 7,975,000 options ("Options") and 5,612,718 performance rights ("Performance Rights") issued and outstanding. Options and Performance Rights are only held by a small number of employees of the Filer, each of whom is well-known to the Filer. To the Filer's knowledge, no Options or Performance Rights are held by Canadian residents.
5. The Filer is a reporting issuer in Ontario and is not a reporting issuer in any other jurisdiction in Canada.
6. The Filer's Ordinary Shares were previously listed on the Toronto Stock Exchange ("TSX"), but at the request of the Filer, were voluntarily delisted from the TSX effective at the close of business on April 30, 2013. Following delisting from the TSX, the Filer closed its Canadian share register.
7. The Filer's Ordinary Shares are listed on the Australian Securities Exchange (the "ASX") (official listing date was May 8, 1997) and trade under the symbol "TGS".
8. None of the Filer's securities are listed, traded or quoted on a marketplace in Canada (as that term is 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.
9. In the last twelve months, the Filer has not conducted any offerings, whether by way of a prospectus offering or a private placement, of its securities in Canada, nor does the Filer currently intend to conduct any offerings, whether by way of a prospectus offering or a private placement, of its securities in Canada. The Filer has not taken any steps to create a market for its securities in Canada since its Ordinary Shares were delisted from the TSX. The Filer has only ever 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 66,656 Ordinary Shares, which accounted for less than 0.2% of the Filer's worldwide daily trading volumes. In contrast, the daily average volume of trading on the ASX for the same period represented approximately 34,102,846 shares.
10. The Filer is not in default of any of the requirements of the Legislation, the Australian Reporting Requirements (as defined below), or any other securities or corporate legislation to which it is subject.
11. In support of the representations in paragraph 12 below, the Filer makes the following representations:
(a) The Filer engaged the services of Orient Capital Pty Ltd ("Orient"), an independent advisory firm that is the largest analyser of share registers globally and the dominant provider of equity ownership analytics in multiple markets, for the purposes of ascertaining the representation of Canadian resident beneficial holders on the Filer's share register. Orient obtained access to the Filer's complete share register of almost 4,000 registered shareholders (as at July 31, 2013) and undertook the following review process:
(i) Orient analysed the top 20 registered shareholders, which represented just over 75% of the total number of Ordinary Shares of the Filer. Orient advised the Filer that the top 20 registered shareholders generally include the vast majority of custodian nominees normally used by institutional investors, fund managers and international investors. Pursuant to governing Australian legislation, Orient, on behalf of the Filer, sent tracing notices to the top 20 registered shareholders (irrespective of residence) recognized as custodians, nominees or brokers. Recipients of tracing notices are legally required to disclose the underlying beneficial ownership/relevant interest holders to the Filer. Orient noted that in cases where Canadian resident custodians, nominees or brokers could not disclose the name and address details of the beneficial owner/relevant interest holders under their custody (due to Canadian privacy laws), Orient obtained a generic breakdown of the number of beneficial holders under their custody, together with the total number of Ordinary Shares held by each beneficial holder and the Canadian jurisdiction in which such beneficial holder resides. In cases where the custodians, nominees and brokers did not provide a breakdown of Canadian jurisdiction of residence, Orient recorded the Canadian jurisdiction where the custodian is resident. From this information, Orient provided the Filer with its determination regarding the number and shareholdings of Canadian beneficial owners or relevant interest holders (i.e. investment managers resident in Canada) represented by the top 20 registered shareholders;
(ii) In addition to examining and reporting on Canadian beneficial shareholdings represented in the top 20 registered shareholders, Orient also conducted an in-depth review of the Filer's entire share register, including shareholders outside of the top 20.
(iii) Orient reviewed each of the names on the register against their experience in the Australian market and their specific experience with the Filer's register obtained from having conducted a monthly register analysis for the past period of time. Orient identified and extracted registered shareholders with a Canadian address, which exercise yielded six holders with Canadian addresses holding an aggregate of 430,885 Ordinary Shares (representing approximately 0.06% of outstanding Ordinary Shares as at July 31, 2013). Orient also assessed nominee holders and custodians outside the top 20 with a view to judging whether there were any reasonable grounds for thinking that Canadian resident shareholders might be represented by such nominees or custodians and concluded there were no such reasonable grounds;
(iv) Orient combined the data obtained from the above and provided a written report to the Filer of its determination regarding the representation of Canadian resident beneficial holders on the Filer's share register, as set out in paragraph 12, below; and
(b) The Filer's Managing Director, Chief Financial Officer and Company Secretary also each reviewed the Filer's entire register of shareholders to satisfy themselves that Orient's determination as to the representation of Canadian resident beneficial holders on the Filer's share register was reasonable.
The Filer believes that these inquiries were reasonable in the circumstances.
12. As at July 31, 2013, the Filer had 3,995 registered shareholders, and based on the diligent inquiries described above, to the best of the Filer's information, knowledge and belief:
(a) 8,059,743 Ordinary Shares of the Filer were beneficially held by Canadian residents, representing 1.19% of the total number of outstanding Ordinary Shares of the Filer;
(b) there are 70 Canadian resident beneficial shareholders, representing approximately 1.75% of its total number of holders of Ordinary Shares worldwide; and
(c) accordingly, as at July 31, 2013, residents of Canada:
(i) do not beneficially own, directly or indirectly, more than 2% of each class or series of issued and outstanding securities of the Filer worldwide; and
(ii) do not directly or indirectly comprise more than 2% of the total number of holders of issued and outstanding securities of the Filer worldwide.
13. The Filer is subject to the reporting requirements of the ASX and the Australian Corporations Act, 2001 (Cth) (together, the Australian Reporting Requirements). The Australian Reporting Requirements are similar in nature and scope to the reporting requirements under National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102).
14. During the time the Filer has been a reporting issuer in Ontario, the Filer has been a designated foreign issuer pursuant to, and has complied with, National Instrument 71-102 Continuous Disclosure and Other Exemptions Relating to Foreign Issuers (NI 71-102).
15. Pursuant to NI 71-102, the Filer is deemed to have complied with most continuous disclosure requirements under NI 51-102 by complying with the Australian Reporting Requirements, filing on SEDAR the equivalent disclosure documents required to be filed or furnished to the regulatory authorities pursuant to the Australian Reporting Requirements and sending to shareholders in Canada the same documents it sends to its shareholders pursuant to the Australian Reporting Requirements, in the same manner and at the same time, or as soon as practicable after, it sends such documents to its shareholders pursuant to such requirements.
16. The Filer has provided advance notice to Canadian resident securityholders in a news release dated September 18, 2013 that it has applied to securities regulatory authorities 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 of Canada.
17. The Filer undertakes to concurrently deliver to its Canadian resident shareholders all disclosure material that it would be required by Australian Reporting Requirements to deliver to Australian resident shareholders. Disclosure material is also available under the Filer's profile on the ASX website at www.asx.com.au.
18. The Filer will not be a reporting issuer or the equivalent in any jurisdiction in Canada immediately following an order from the Commission that the Filer is not a reporting issuer in Ontario.
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.
DATED this 25th day of October, 2013.