Chalice Mining Limited
Headnote
National Policy 11-206 Process for Cease to be a Reporting Issuer Applications -- Application by a reporting issuer for an order that it is not a reporting issuer in Ontario -- Issuer is a public company governed by the Australian Corporations Act 2001 and its securities are traded only on a market or exchange outside of Canada -- 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 (including debt 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 has provided notice through a press release that it has submitted an application to cease to be a reporting issuer in Canada -- Issuer will deliver to Canadian-resident registered securityholders all continuous disclosure documents that the Issuer is required to deliver to its Australian-resident registered securityholders under applicable Australian laws and the requirements of the Australian Securities Exchange.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am.
November 14, 2022
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction) AND IN THE MATTER OF THE PROCESS FOR CEASE TO BE A REPORTING ISSUER APPLICATIONS AND IN THE MATTER OF CHALICE MINING LIMITED (the Filer)
ORDER
Background
The Ontario Securities Commission (the Commission) has received an application from the Filer for an order under the securities legislation of the Jurisdiction (the Legislation) that the Filer has ceased to be a reporting issuer in Ontario (the Order Sought).
Under the Process for Cease to be a Reporting Issuer Applications, the Commission is the principal regulator for this application.
Interpretation
Terms defined in National Instrument 14-101 Definitions 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 is a company existing under the Corporations Act 2001 (Australia) (the Corporations Act).
2. The Filer's registered office and principal place of business is located at Level 3, 46 Colin Street, West Perth, Western Australia, 6005.
3. The Filer's authorized capital consists of an unlimited number of ordinary shares (Ordinary Shares), of which 376,297,194 were issued and outstanding as of July 29, 2022. The Filer has no outstanding securities other than: (a) the Ordinary Shares; (b) options (Options) issued under the Filer's employee securities incentive plan and entitling the holders thereof to acquire 300,000 Ordinary Shares; (c) performance rights (Performance Rights) under the Filer's employee incentive plan and entitling the holders thereof to receive, subject to the satisfaction of the relevant vesting conditions and performance hurdles, up to 5,115,516 Ordinary Shares; and (d) retention rights (Retention Rights) under the Filer's employee incentive plan and entitling the holders thereof to receive, subject to the satisfaction of the relevant vesting conditions, up to 697,270 Ordinary Shares. The residents of Canada do not beneficially own any of the Options, Performance Rights or Retention Rights.
4. The Ordinary Shares are listed on the Australian Securities Exchange (the ASX) under the trading symbol "CHN". The Ordinary Shares were previously listed on the Toronto Stock Exchange (the TSX) and were voluntarily delisted from the TSX on December 16, 2019.
5. The Filer is an exploration and development stage mining company. The Filer's principal asset is its 100% interest in the Julimar Nickel-Copper-PGE Project in Western Australia.
6. The Filer is subject to all applicable corporate requirements of a company formed in Australia, applicable Australian laws and the rules of the ASX. The Filer is not in default of any requirements of Australian law or the rules or requirements of the ASX applicable to it.
7. The Filer is not a reporting issuer in any jurisdiction of Canada other than Ontario.
8. The Filer 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 continuous disclosure requirements afforded to designated foreign issuers under Part 5 of NI 71-102.
9. The Filer is not in default of the securities legislation of any jurisdiction in Canada.
10. The Filer has no material connection to Canada other than an inactive subsidiary and a limited number of securityholders who are residents of Canada. In particular:
a. the Filer's registered office and principal place of business is located in Australia;
b. the Filer's annual general meetings of securityholders take place outside of Canada and will continue to take place outside of Canada;
c. the Filer has no material assets or operations in Canada;
d. none of the Filer's directors, officers or employees are residents of Canada.
11. The Filer is not eligible for the simplified procedure set out in National Policy 11-206 Process for Cease to be a Reporting Issuer Applications because the Filer has more than 51 securityholders worldwide.
12. The Filer is a non-U.S. issuer incorporated or organized under the laws of a foreign jurisdiction and listed on a major foreign exchange. The Filer (i) meets the 2% test regarding the Filer's securityholder base in Canada and (ii) can demonstrate that its Canadian securityholders will receive adequate continuous disclosure under foreign securities law (both as described below).
13. In support of the representations set forth in paragraph 14 below concerning the percentage of outstanding securities and the total number of securityholders in Canada, the Filer sought and obtained information from several sources about the number, holdings, identity and geographic location of the beneficial holders of its outstanding Ordinary Shares. The Filer has undertaken a thorough and diligent examination of its share register and has made inquiries to the Filer's share registry, Computershare Investor Services Australia. In addition, the Filer engaged the advisory services of Orient Capital Pty Ltd (Orient Capital) to provide analysis of Canadian-resident beneficial owners by issuing tracing notices to the nominee shareholders listed on the Filer's share register. Orient Capital issued notices in accordance with s. 672 of the Corporations Act of Australia, which requires the recipient to disclose details of all persons who have a beneficial interest in the relevant shares. Disclosure is mandatory and must be made within the specified time period outlined in the tracing notice. The Filer believes that it has made all reasonable inquiries to obtain information about Canadian-resident securityholders, given that its share register is the only official source of information on the Filer's securityholders.
14. Based on the Filer's diligent inquiries described above, the Filer believes that the aggregate beneficial ownership of the Ordinary Shares in Canada as of July 29, 2022 consists of 334 shareholders beneficially owning an aggregate of 6,515,698 Ordinary Shares, representing approximately 1.96% of the total number of shareholders of the Filer and approximately 1.73% of the total outstanding Ordinary Shares
15. Accordingly, based on the foregoing, as of July 29, 2022, residents of Canada do not:
a. directly or indirectly beneficially own more than 2% of each class or series of outstanding securities (including debt securities) of the Filer worldwide; and
b. directly or indirectly comprise more than 2% of the total number of securityholders of the Filer worldwide.
16. As a result of the Filer ceasing to be a reporting issuer, some of the Ordinary Shares may be subject to resale restrictions within Canada under applicable Canadian securities laws. Canadian shareholders can trade the Ordinary Shares subject to resale restrictions provided that such trades are in compliance with sections 2.7 and 2.8 of OSC Rule 72-503 Distributions Outside Ontario.
17. The Filer has no current intention to seek public or private financing by way of an offering of securities in any jurisdiction of Canada.
18. None of the Filer's securities are listed, traded or quoted on a marketplace in Canada (as such 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 any such marketplace in Canada.
19. In the 12 months preceding this application, the Filer has not taken any steps that indicate there is a market for its securities in Canada, including conducting a prospectus offering in Canada, establishing or maintaining a listing on an exchange in Canada or having its securities traded on a marketplace or any other facility in Canada for bringing together buyers and sellers where trading data is publicly reported.
20. The Filer has provided advance notice on September 12, 2022, via a news release that was disseminated and filed under the Filer's SEDAR profile, to Canadian-resident securityholders that it has applied for an order to cease to be a reporting issuer in Ontario, and that, if that order is made, the Filer will no longer be a reporting issuer in any jurisdiction in Canada.
21. All continuous disclosure required to be made by the Filer under applicable Australian securities laws and ASX requirements is publicly available to all of the Filer's securityholders through the Filer's website at chalicemining.com.au, and, given the Filer's status as a "designated foreign issuer" under NI 71-102, such disclosure will be substantially the same as the continuous disclosure to which Canadian-resident holders of Ordinary Shares currently have access.
22. The Filer undertakes that it will concurrently deliver to its Canadian-resident registered securityholders all continuous disclosure documents that the Filer is required to deliver to its non-Canadian registered securityholders under applicable Australian laws and ASX requirements.
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.