Ontario Securities Commission
Headnote
NP 11-203 – Exemption from qualification requirements to permit filer to file a prospectus in the form of a short form prospectus – Filer does not have a current AIF and therefore cannot comply with s. 2.2(d) of National Instrument 44-101 Short Form Prospectus Distributions – Filer is a "successor issuer" but cannot rely on exemption in s 2.7(2) because Filer did not have to prepare an information circular in connection with restructuring transaction – Filer has filed a listing application including the disclosure prescribed for a filing statement by TSXV Form 3B2 – Listing application in all material respects includes the disclosure in connection with the Filer and the RTO that would be included in an information circular prepared in accordance with Item 14.5 of Form 51-102F5 Information Circular.
Applicable Legislative Provisions
National Instrument 44-101 Short Form Prospectus Distributions ss. 2.2, 2.7, 8.1.
March 9, 2011
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ONTARIO (the "Jurisdiction")
AND
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF
FERONIA INC. (the "Filer")
DECISION
Background
The principal regulator in the Jurisdiction has received an application (the "Application") from the Filer for a decision under the securities legislation of the Jurisdiction (the "Legislation") that the Filer be exempted from the qualification requirement in paragraph 2.2(d)(ii) of National Instrument 44-101 Short Form Prospectus Distributions ("NI 44-101") in respect of any prospectus filed by the Filer prior to April 29, 2011 (the "Exemptive Relief Sought").
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application),
(a) the Ontario Securities Commission is the principal regulator for the application, and
(b) the Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System ("MI 11-102") is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, Nova Scotia, Newfoundland, New Brunswick, Prince Edward Island and Quebec.
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:
The Filer was continued under the laws of the Province of Ontario and its head office is located in Toronto, Ontario.
The Filer's common shares and common share purchase warrants are listed on the TSX Venture Exchange (the "TSXV") and the Filer is a reporting issuer in the Provinces of British Columbia, Alberta, Saskatchewan and Ontario.
On September 9, 2010, the Filer (then known as G.T.M. Capital Corporation) completed a reverse takeover transaction (the "RTO") with Feronia CI Inc., a private company incorporated under the laws of the Cayman Islands ("Feronia CI"), by way of an exchange offer and merger of Feronia CI with Feronia PHC Limited, a wholly-owned subsidiary of the Filer, resulting in the Filer owning all of the issued and outstanding securities of the merged entity.
Upon completion of the RTO, the Filer changed its name from "G.T.M. Capital Corporation" to "Feronia Inc."
The financial year-end of the Filer is December 31. The Filer expects to file audited annual financial statements for the year ended December 31, 2010 on or prior to April 29, 2011.
In connection with the RTO and in accordance with TSXV Policy 2.4, the Filer filed a listing application dated August 27, 2010 (the "Listing Application") on SEDAR, which included the disclosure prescribed for a filing statement by TSXV Form 3B2 - Information Required in a Filing Statement for a Qualifying Transaction ("Form 3B2").
As required by Form 3B2, the Listing Application appended audited financial statements of Feronia CI for the interim period ended March 31, 2010, the year ended December 31, 2009 and the five-month period ended December 31, 2008, and pro forma financial statements of the Resulting Issuer (as such term is defined in Form 3B2). In addition, the Listing Application appended audited financial statements of Plantations et Huileries du Congo SARL, being the operating subsidiary of Feronia CI, for the years ended December 31, 2009, 2008 and 2007.
The Filer did not file an information circular as prescribed by Form 3B1 - Information Required in an Information Circular for a Qualifying Transaction because the consent of the Filer's shareholders was not required in order to complete the RTO.
The Filer is not in default of securities legislation in any jurisdiction.
The Filer is not in default of any of the rules, regulations or policies of the TSXV.
The Filer wishes to be qualified to file a short form prospectus pursuant to NI 44-101.
As a venture issuer under National Instrument 51-102 Continuous Disclosure Obligations, the Filer is not required to file an annual information form ("AIF") and has never filed an AIF.
As a result of the RTO, the Filer is a "successor issuer" as such term is defined in NI 44-101.
An exemption from paragraph 2.2(d) of NI 44-101 is provided under subsection 2.7(2) of NI 44-101 to permit a successor issuer that does not have a current AIF to qualify to file a prospectus in the form of a short form prospectus, subject to certain conditions; in particular, the condition in paragraph 2.7(2)(b) that an information circular relating to the restructuring transaction that resulted in the successor issuer was filed by the successor issuer or an issuer that was a party to the restructuring transaction, and such information circular: (i) complied with applicable securities legislation, and (ii) included disclosure in accordance with Item 14.2 or 14.5 of Form 51-102F5 – Information Circular for the successor issuer.
The Filer is unable to rely on the exemption in subsection 2.7(2) because it did not file an information circular relating to the RTO and therefore cannot technically satisfy the condition in paragraph 2.7(2)(b).
The Listing Application in all material respects includes the disclosure in connection with the Filer and the RTO that would be included in an information circular prepared in accordance with Item 14.5 of Form 51-102F5.
But for the Filer not having prepared an information circular relating to the Filer and the RTO, the Filer would be able to rely on the exemption in subsection 2.7(2) of NI 44-101 to be qualified to file a prospectus in the form of a short form prospectus pursuant to the qualification criteria in section 2.2 of NI 44-101.
On February 25, 2011, the Filer filed on SEDAR a notice pursuant to section 2.8 of NI 44-101 declaring its intention to be qualified to file a short form prospectus.
Decision
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Exemptive Relief Sought is granted provided that the Filer incorporates by reference the Listing Application in any short form prospectus filed prior to April 29, 2011, pursuant to NI 44-101.
"Michael Brown"
Assistant Manager, Corporate Finance
Ontario Securities Commission