National Policy 11-203 Process For Exemptive Relief Applications in Multiple Jurisdictions -- Application by Australian issuer for a decision that it is not a reporting issuer -- The issuer has de minimis market presence in Canada -- the issuer satisfies the criteria set out in CSA Staff Notice 12-307 Applications for a Decision that an Issuer is not a Reporting Issuer -- 2% de minimis threshold for securities met -- Requested relief granted.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10)(a)(ii).
July 30, 2014
IN THE MATTER OF THE SECURITIES LEGISLATION OF BRITISH COLUMBIA, ALBERTA AND ONTARIO (THE JURISDICTIONS) AND IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS AND IN THE MATTER OF SOUTHERN HEMISPHERE MINING LIMITED (THE FILER)
1 The securities regulatory authority or regulator in each of the Jurisdictions (Decision Maker) has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) that the Filer is deemed to have ceased to be a reporting issuer under the Legislation (the Exemptive Relief Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a coordinated review application):
(a) the British Columbia Securities Commission is the principal regulator for this application; and
(b) the decision is the decision of the principal regulator and evidences the decision of each other Decision Maker.
2 Terms defined in National Instrument 14-101 Definitions have the same meaning in this decision, unless otherwise defined.
3 This decision is based on the following facts represented by the Filer:
1. the Filer was incorporated under the laws of British Columbia on December 23, 2005 as Old Bond Capital Corp.;
2. on May 2, 2006, the Filer changed its name to Youandi Capital Corp.;
3. on December 17, 2007, the Filer changed its name to Southern Hemisphere Mining Limited;
4. effective April 23, 2013, the Filer continued out of British Columbia and into Australia under the Corporations Act of Australia;
5. the Filer is engaged in mineral exploration; the Filer's current property interests are located in Chile; the Filer's head office is located in Perth, Australia and its management is located in Australia and Chile;
6. the authorized capital of the Filer consists of an unlimited number of common shares without par value (the Shares); as of April 24, 2014, there were 248,532,950 Shares issued and outstanding;
7. the Filer is currently a reporting issuer in each of the Jurisdictions, but is not a reporting issuer (or equivalent) in any other jurisdiction in Canada;
8. the Filer's Shares were previously listed on the TSX Venture Exchange (the TSXV) but, at the request of the Filer, were voluntarily delisted from the TSXV effective at the close of business on November 8, 2013;
9. the Filer's Shares are listed on the Australian Securities Exchange (the ASX) (official listing date of January 5, 2010) and currently trade under the symbol "SUH";
10. none of the Filer's securities, including debt securities, are traded on a marketplace in Canada (as that term is defined in National Instrument 21-101 Marketplace Operation), or listed or quoted on any other market or exchange, other than the ASX;
11. in the last twelve (12) months, the Filer has not conducted any offerings of its securities in Canada nor does the Filer currently intend to conduct any offerings of its securities in Canada; the Filer has not taken any steps to indicate that there is a market for the Shares in Canada since the Shares were delisted from the TSXV;
12. the Filer is not in default of any of the requirements of securities legislation in the Jurisdictions, the Australian Reporting Requirements (as defined below), or any other securities or corporate legislation to which it is subject;
13. the Filer has made enquiries with its transfer agent, Computershare Investor Services Pty Limited, with regard to ownership of the Shares; based upon these searches, as of April 24, 2014, there were:
(a) 2,940,698 Shares held by Canadian residents, representing 1.20% of the total number of issued and outstanding Shares worldwide; and
(b) seventeen (17) holders of Shares resident in Canada, representing 1.76% of the Filer's total number of holders of Shares worldwide;
14. based on the enquiries of the Filer described above, residents in Canada:
(a) do not directly or indirectly beneficially own more than 2% of each class or series of issued and outstanding securities of the Filer worldwide; and
(b) do not directly or indirectly comprise more than 2% of the total number of holders of issued and outstanding securities of the Filer worldwide;
15. the Filer is subject to the reporting requirements of the ASX and the Australian Corporations Act (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;
16. the Filer delivers to holders of Shares resident in Canada all disclosure material required by Australian Reporting Requirements to be delivered to shareholders; the disclosure material is also available on the website of the ASX at www.asx.com.au;
17. the Filer's annual report, which incorporates the principal annual financial statements, notes to the financial statements and a directors' report about the statements and notes, is sent to all holders of Shares, including those resident in Canada, who have indicated in writing that they prefer to receive such material; the annual report is publicly available on the ASX's website;
18. the Filer is subject to, and in compliance with, the ASX Listing Rules and its policies, including reporting obligations, which are substantially similar to those imposed on reporting issuers under Canadian securities laws;
19. the Filer has provided advance notice to Canadian resident securityholders via a news release dated May 5, 2014 that the Filer has applied to the security regulatory authorities for a decision that it is not a reporting issuer in Canada and that, if that decision is made, the Filer will no longer be a reporting issuer in any jurisdiction in Canada; and
20. the Filer has undertaken that it will concurrently deliver to any holder of Shares resident in Canada all disclosure material required by Australian Reporting Requirements to be delivered to shareholders resident in Australia.
4 Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
The decision of the Decision Makers under the Legislation is that the Exemptive Relief Sought is granted.