Atalaya Mining Plc
Headnote
National Policy 11-206 Process for Cease to be a Reporting Issuer Applications -- Application for an order that the issuer is not a reporting issuer under applicable securities laws -- issuer has one large Canadian securityholder that beneficially owns approximately 5.9% of the issuer's outstanding securities -- Other than the one large Canadian securityholder, Canadian resident shareholders beneficially own approximately 0.38% of the issuer's outstanding securities -- issuer has no present intention of seeking public financing by way of an offering of its securities in any jurisdiction of Canada -- No securities of the issuer trade on any market or exchange in Canada -- issuer's securities listed on AIM stock exchange -- issuer is subject to reporting requirements under UK securities law -- Large Canadian securityholder does not object to the order -- issuer has issued a press release announcing that it has submitted an application to cease to be a reporting issuer in the Jurisdictions -- requested relief granted.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10)(a)(ii).
June 22, 2023
IN THE MATTER OF THE SECURITIES LEGISLATION OF THE PROVINCE OF ONTARIO (the Jurisdiction) AND IN THE MATTER OF THE PROCESS FOR CEASE TO BE A REPORTING ISSUER APPLICATIONS AND IN THE MATTER OF ATALAYA MINING PLC (the Filer)
ORDER
BACKGROUND
The principal regulator in the Jurisdiction has received an application from the Filer for an order under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) that the Filer has ceased to be a reporting issuer in all jurisdictions of Canada in which it is a reporting issuer (the Order Sought).
Under the Process for Cease to be a Reporting Issuer Applications (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application, and
(b) the Filer has provided notice that subsection 4C.5(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in the Provinces of Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, and Saskatchewan.
INTERPRETATION
Terms defined in National Instrument 14-101 Definitions, and MI 11-102 have the same meaning if used in this order, unless otherwise defined.
REPRESENTATIONS
This order is based on the following facts represented by the Filer:
1. The Filer was incorporated under the laws of Cyprus on September 17, 2004.
2. The Filer's registered office is located at 1 Lambousas Street, 1095 Nicosia, Cyprus and the head office is located at 121 Prodromou street, office 705, Strovolos 2064, Nicosia, Cyprus.
3. The Filer is a reporting issuer in Ontario, British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador (Jurisdictions).
4. The Filer has an authorised share capital of 200,000,000 ordinary shares (the Shares). As of March 20, 2023 there were 139,879,209 Shares issued and outstanding.
5. As of March 20, 2023 there were 3,543,500 Share options (Options) outstanding. To the best of the Filer's knowledge, no Options are held by Canadian residents.
6. The Filer's Shares were previously listed on the Toronto Stock Exchange (TSX), but were delisted from the TSX effective at the close of business on March 20, 2023.
7. The Filer's Shares are admitted to trading on the AIM market of the London Stock Exchange (AIM) (having been admitted to trading in May 2005) and trade under the symbol "ATYM".
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. The Filer is applying for a decision that it is not a reporting issuer in the Jurisdictions.
10. 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 Shares were delisted from the TSX. The Filer has only attracted a de minimis number of Canadian investors and the daily average volume of trading of the Shares in the 12 months prior to delisting from the TSX was approximately 1,326,592 Shares which accounted for 1.04% of the Filer's worldwide daily trading volumes.
11. The Filer is not in default of any of the requirements of the Legislation, the Reporting Requirements (as defined below), or any other securities or corporate legislation to which it is subject.
12. In support of the representations in paragraph 13 below, the Filer represents that it requested and reviewed: (i) its shareholder register from its Canadian transfer agent, Computershare Investor Services Inc.; (ii) its shareholder register from its United Kingdom transfer agent, Computershare Investor Services PLC (UK); (iii) a geographical breakdown report from Peel Hunt indicating the geographical location of residence of beneficial shareholders; and (iv) its internal option holder register, for the purpose of ascertaining the representation of Canadian resident beneficial holders of the Filer's securities. The Filer believes that these inquiries were diligent and reasonable in the circumstances.
13. As at February 27, 2023 (the date of the Peel Hunt report), the Filer had 228 registered shareholders, and based on the reasonable and diligent inquiries described above, to the best of the Filer's information, knowledge and belief:
(a) 8,782,907 Shares of the Filer were beneficially held by entities who could be deemed to be Canadian residents, representing 6.28% of the total number of outstanding Shares of the Filer;
(b) the largest shareholding which may be deemed to be owned or controlled by a Canadian resident are the beneficial holdings of Odyssey Reinsurance Company (a US incorporated reinsurance company), Newline Insurance Company Limited (a UK incorporated insurance company), Brit Reinsurance (Bermuda) Company Limited (a Bermuda reinsurance company) and Brit Syndicates Limited (a UK insurance company), which in aggregate hold 8,251,795 Shares representing approximately 5.9% of the total issued and outstanding Shares. These Shares are all held at Bank of New York Mellon and the underlying beneficial owners being the companies mentioned above. All of the above companies are subsidiaries of Fairfax Financial Holdings Limited (a Canadian incorporated company) (Fairfax) and investment management and the related voting rights in respect of all the Shares described above are controlled and directed by Hamblin Watsa Investment Counsel Ltd. (Hamblin), a Canadian company that is registered as a portfolio manager with the Ontario Securities Commission and which is also owned by Fairfax;
(c) Other Canadian securityholders hold an aggregate of 531,112 Shares (representing 0.38% of the total issued and outstanding Shares );
(d) Hamblin, as investment manager of the above-noted Fairfax entities, has confirmed in writing to the Filer that (i) it receives disclosure from the Filer under the Reporting Requirements (as defined below); and (ii) it does not object to the Filer's request for an order or decision of the Commission to cease being a reporting issuer in Ontario;
(e) the Filer has no Canadian resident optionholders;
(f) the Filer has no other outstanding securities;
(g) other than Fairfax, the residents of Canada do not beneficially own, directly or indirectly, more than 2% of each class or series of issued and outstanding securities (including debt securities) of the Filer worldwide; and
(h) the residents of Canada, including Fairfax, do not directly or indirectly comprise more than 2% of the total number of beneficial holders of issued and outstanding securities of the Filer worldwide.
14. The Filer is subject to the reporting requirements of the AIM Rules for Companies, as amended (the Reporting Requirements). The Reporting Requirements are similar in nature to the reporting requirements under National Instrument 51-102 Continuous Disclosure Requirements (NI 51-102) and the Filer will remain subject to the reporting requirements of a regulated public market.
15. On January 15, 2015 the Filer became a foreign issuer pursuant to, and has complied with, National Instrument 71-102 Continuous Disclosure and Other Exemptions Relating to Foreign Issuers (NI 71-102).
16. 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 Reporting Requirements, filing on SEDAR the equivalent disclosure documents required to be filed or furnished to the regulatory authorities pursuant to the Reporting Requirements and sending to shareholders in Canada the same documents it sends to its shareholders pursuant to the 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.
17. The Filer has provided advance notice to Canadian resident securityholders in a news release dated May 30, 2023 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. As of the date of this order the Filer has received no response from its securityholders in response to that press release.
18. The Filer has provided an undertaking to the Ontario Securities Commission stating that Canadian resident shareholders will continue to receive disclosure material as required by the Reporting Requirements for so long as it is subject to those requirements. Disclosure material is also available under the Filer's website at www.atalayamining.com.
19. The Filer, upon the granting of the Order Sought, will no longer be a reporting issuer or the equivalent thereof in any jurisdiction in Canada.
ORDER
The principal regulator is satisfied that the order meets the test set out in the Legislation for the principal regulator to make the order.
The decision of the principal regulator under the Legislation is that the Order Sought is granted.