Headnote
NP 11-203 – Application for an order that the issuer is not a reporting issuer – Filer has not publicly held securities – Requested relief granted.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c.S.5, as am., ss. 1(10)
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ONTARIO AND ALBERTA (the Jurisdictions)
AND
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS
IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF
TIOMIN CHINA LIMITED (the Filer)
DECISION
Background
The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) has received an application from the Filer for a decision pursuant to the securities legislation of the Jurisdictions (the Legislation) that the Filer is not a reporting issuer (the Exemptive Relief Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a coordinated review application),
(a) the Ontario Securities Commission is the principal regulator for the application, and
(b) the decision is the decision of the principal regulator and evidences the decision of each other Decision Maker.
Interpretation
Terms defined in National Instrument 14-101 Definitions have the same meaning if used in this decision, unless otherwise defined.
Representations
This decision is based on the following facts represented by the Filer:
Radiant Resources Inc. (Radiant) was a corporation governed by the Business Corporations Act (British Columbia) (the BCBCA). The common shares of Radiant were listed for trading on the TSX Venture Exchange (the TSXV) and it was a reporting issuer in British Columbia and the Jurisdictions.
Tiomin Resources Inc. (the Purchaser) is a corporation governed by the Canada Business Corporations Act (the CBCA). The common shares of the Purchaser are listed on the Toronto Stock Exchange and it is a reporting issuer in all of the provinces and territories of Canada.
On May 28, 2008, Radiant signed a letter of intent pursuant to which the Purchaser would acquire Radiant by way of plan of arrangement (the Arrangement), whereby all of the issued and outstanding shares of Radiant not already held by the Purchaser would be exchanged for shares of the Purchaser and Radiant would be amalgamated with 0832591 B.C. Ltd. (Subco), a wholly owned subsidiary of the Purchaser.
Subco was incorporated by the Purchaser under the BCBCA for the sole purpose of engaging in the transactions contemplated by the Arrangement. Subco was not a reporting issuer in any jurisdiction.
On September 23, 2008, the Arrangement was approved at a special meeting of securityholders of Radiant.
On September 24, 2008, the British Columbia Superior Court of Justice issued a final order approving the Arrangement.
On September 26, 2008, the Purchaser, Radiant and Subco completed the Arrangement, pursuant to which (i) Radiant was amalgamated with Subco to form the Filer and, as a result of the arrangement and by operation of law, the Filer became a reporting issuer in British Columbia and the Jurisdictions, (ii) all of Radiant’s shares were cancelled, (iii) the Purchaser became the sole shareholder of the Filer, and (iv) the former shareholders of Radiant became shareholders of the Purchaser.
The Filer is a corporation governed by the BCBCA. Its head office is located at Suite 810, 18 King Street East, Toronto, Ontario, M5C 1C4.
The Filer is not in default of any of its obligations under the Legislation as a reporting issuer except for its obligations (as the successor corporation of Radiant) to file its audited annual financial statements, related management’s discussion and analysis and officer’s certificates in respect thereof for the financial year ended May 31, 2008. The default occurred after the completion of the Arrangement, when the trading of shares of Radiant on the TSXV had been halted and the sole shareholder of the Filer (the successor corporation of Radiant) was the Purchaser.
Radiant’s common shares were delisted from the TSXV on October 1, 2008.
The outstanding securities of the Filer, including debt securities, are beneficially owned, directly or indirectly, by fewer than 15 security holders in each of the jurisdictions in Canada and fewer than 51 security holders in total in Canada.
No securities of the Filer are traded on a marketplace as defined in National Instrument 21-101 Marketplace Operations.
The Filer has no intention to seek public financing by way of an offering of securities.
The Filer (as the successor corporation of Radiant) applied to voluntarily surrender its status as a reporting issuer in British Columbia under British Columbia Instrument 11-502 Voluntary Surrender of Reporting Issuer Status on October 2, 2008 and ceased to be a reporting issuer effective October 12, 2008.
Upon the grant of the Exemptive Relief Sought, the Filer will not be a reporting issuer or the equivalent in any jurisdiction of Canada.
Decision
Each of 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.
“James E.A. Turner” “Suresh Thakrar”
Vice-Chair Commissioner