National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- application by a reporting issuer for an order that it is not a reporting issuer in Ontario -- based on diligent inquiry, residents of Canada (i) do not directly or indirectly beneficially own more than 2% of each class or series of outstanding securities of the issuer worldwide, and (ii) do not directly or indirectly comprise more than 2% of the total number of securityholders of the issuer worldwide -- issuer is subject to United Kingdom securities law and requirements of the Alternative Investment Market of the London Stock Exchange -- issuer has provided notice through a press release that it has submitted an application to cease to be a reporting issuer in Ontario.
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10)(a)(ii).
IN THE MATTER OF THE SECURITIES ACT, R.S.O. 1990, CHAPTER S.5, AS AMENDED (THE ACT) AND IN THE MATTER OF POLO RESOURCES LIMITED (THE APPLICANT)
UPON the Director having received an application from the Applicant for an order under subparagraph 1(10)(a)(ii) of the Act that the Applicant 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 Applicant representing to the Commission as follows:
1. The Applicant is a company established under the BVI Business Companies Act, 2004 in the British Virgin Islands with registered number 1406187.
2. The Applicant's registered office is located at Craigmuir Chambers, Road Town, Tortola VG 1110, British Virgin Islands.
3. The Applicant is an investment company focused on natural resources and mine development.
4. The Applicant does not have any operations, employees or offices in Canada.
5. The Applicant's authorized share capital consists of an unlimited number of ordinary shares without par value (the Ordinary Shares). As of February 9, 2015, the Applicant had 276,940,309 outstanding Ordinary Shares. The Applicant has no other securities that are issued and outstanding, including any debt securities.
6. The primary market for the Ordinary Shares is the Alternative Investment Market of the London Stock Exchange (AIM), where the Ordinary Shares have been listed under the symbol "POL" since September 4, 2007. The Ordinary Shares were also listed on the Bermuda Stock Exchange on April 4, 2013 and were delisted from that exchange on May 23, 2014.
7. The Ordinary Shares were conditionally approved for listing on the Toronto Stock Exchange (the TSX) on March 9, 2010 and began trading on the TSX on April 1, 2010, which resulted in the Applicant becoming a reporting issuer in Ontario.
8. On April 5, 2013, the Ordinary Shares were voluntarily delisted from the TSX.
9. The Applicant is not a reporting issuer in any other jurisdiction in Canada other than Ontario.
10. The Applicant is not in default of securities legislation in Ontario.
11. The Applicant is not in default of any reporting or other requirement of AIM.
12. Residents of Canada do not (i) directly or indirectly, beneficially own more than 2% of each class or series of outstanding securities of the Applicant worldwide, and (ii) directly or indirectly comprise more than 2% of the total number of securityholders of the Applicant worldwide. The due diligence conducted by the Applicant in support of the foregoing representation is as follows:
a. The Applicant obtained a report dated January 14, 2014, as updated on July 15, 2014 and February 9, 2015, prepared by RD:IR (Richard Davies Investor Relations Limited) (as updated, the RD:IR Report), which provided a deep analysis of the share register using a record date of February 9, 2015 provided to RD:IR by Computershare Investor Services PLC (Computershare UK), the Applicant's transfer agent, regarding the holdings of registered nominee/brokers and fund managers (Intermediaries) who hold Ordinary Shares to determine the residency of the beneficial holders of the Ordinary Shares held through Intermediaries.
b. The RD:IR Report identified 181 Intermediaries, and all of them were queried with respect to beneficial ownership. Where an Intermediary either failed to respond at all or responded only so as to refuse to provide information, RD:IR followed up with a series of emails and telephone calls and requested that if the Intermediary was unwilling to disclose beneficial ownership, whether they would nonetheless confirm that no beneficial owners were Canadian residents.
c. 12 of the Intermediaries who were queried confirmed that they had no underlying Canadian holders of Ordinary Shares but refused to confirm the overall number of beneficial owners in their accounts.
d. 14 Intermediaries failed to respond to the queries at all. 19 Intermediaries responded to the queries but only so as to refuse any information. These 33 Intermediaries (the Unaccounted Intermediaries) held 12,336,612 Ordinary Shares (the Unaccounted Shares). The RD:IR Report identified that residents of Canada beneficially own an aggregate of 803,793 Ordinary Shares, representing approximately 0.30% of the Applicant's issued and outstanding Ordinary Shares, excluding the Unaccounted Shares (being 276,940,309 -- 12,336,612 = 264,603,697 Ordinary Shares). The Applicant submits that it is unlikely that the Unaccounted Intermediaries hold on behalf of Canadian beneficial owners in any significant number and has no reason to suspect that Canadian residents hold greater than 0.30% of the Unaccounted Shares, given that none of the Unaccounted Intermediaries are based in Canada and there is no identifiable nexus between the Unaccounted Intermediaries and Canadian residents.
e. The RD:IR Report identified 8,792 beneficial holders, 60 of which are residents of Canada representing 0.68% of the total number of beneficial holders worldwide identified by the RD:IR Report. Assuming that 0.30% of the Unaccounted Shares (being 37,010 Ordinary Shares) are held by Canadian residents, and each Canadian resident holds 13,397 Ordinary Shares (being the average number of Ordinary Shares held by a Canadian resident based on the available information), this would result in 3 additional Canadian beneficial holders, accounting for a total of 0.72% of the total number of beneficial holders worldwide identified by the RD:IR Report.
13. In the past 12 months, the Applicant has not taken steps to create a market in Canada for the Ordinary 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 Applicant has no current intention to distribute any securities to the public in Canada nor does it intend to seek financing by way of a public offering of its securities in Canada.
14. None of the Applicant's securities are listed, traded or quoted on a marketplace in Canada as defined in National Instrument 21-101 Marketplace Operation and the Applicant does not intend to have its securities listed, traded or quoted on such a marketplace in Canada. The Applicant 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 747 shares. In contrast, the average daily volume on AIM for the same period represented approximately 683,133 shares. Accordingly, the TSX average daily volume was approximately 0.11% of the AIM average daily volume when the Ordinary Shares were listed in Canada.
15. The Applicant has provided advance notice to Canadian-resident securityholders in a press release dated June 25, 2015 that it has applied to the Commission for a decision that it is not a reporting issuer in Ontario, and if that decision is made, the Applicant will no longer be a reporting issuer in any jurisdiction in Canada.
16. The Applicant files continuous disclosure reports under U.K. securities laws and follows the exchange requirements of AIM.
17. The Applicant 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 disclosure requirements afforded to Designated Foreign Issuers under Part 5 of NI 71-102.
18. The Applicant has provided an undertaking in favour of the Commission that it will 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, in the same manner and at the same time as delivered to its U.K. resident securityholders.
19. The Applicant cannot rely on the "simplified procedure" described in CSA Staff Notice 12-307 Applications for a Decision that an Issuer is not a Reporting Issuer because it has more than 50 security holders in total worldwide and the Ordinary Shares are listed on AIM.
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 Applicant is not a reporting issuer.
DATED this 16th day of December, 2015.