Headnote National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – National Instrument 51-102 Continuous Disclosure Obligations, s. 13.1 – National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings, s. 4.5 – National Instrument 52-110 Audit Committees, s. 8.1 – National Instrument 58-101 Disclosure of Corporate Governance Practices, s. 3.1 – General – Filer seeks relief from the requirement in s. 1.1 definition of “venture issuer”, that a reporting issuer not have any of its securities listed or quoted on a marketplace outside of Canada and the United States of America, in order to remain listed on the Risk Capital Segment of the Lima Stock Exchange Segmento de Capital de Riesgo da la Bolsa de Valores de Lima) (the Exchange) – A venture issuer with common shares listed on the TSXV wants to list on an exchange that does not meet the requirements of the definition of a venture issuer; the Exchange is a junior market that has less onerous requirements than the TSXV; the Exchange requires the Filer to comply with TSXV requirements in order to maintain listing on the Exchange; to remain a venture issuer, the Filer must continue to have its common shares listed on the TSXV and the Exchange must remain a junior market
Applicable Legislative Provisions National Instrument 51-102 Continuous Disclosure Obligations, s. 13.1 National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings, s. 8.6 National Instrument 52-110 Audit Committees, s. 8.1 National Instrument 58-101 Disclosure of Corporate Governance Practices, s. 3.1
November 19, 2012
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
KARMIN EXPLORATION INC.
(the Filer)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) for relief from the requirement in the definition of “venture issuer” in section 1.1 of each of National Instrument 51-102 Continuous Disclosure Obligations, National Instrument 52-109 Certification of Disclosure in Issuer’s Annual and Interim Filings, National Instrument 52-110 Audit Committees and National Instrument 58-101 Disclosure of Corporate Governance Practices that a reporting issuer not, at the relevant time, have any of its securities listed or quoted on any of the Toronto Stock Exchange, a U.S. marketplace or a marketplace outside of Canada and the United States of America other than the Alternative Investment Market of the London Stock Exchange or the PLUS markets operated by PLUS Markets Group plc (the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
the Ontario Securities Commission is the principal regulator for this application; and
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, and Nova Scotia.
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
In this decision,
“Exchange” means the Risk Capital Segment of the Lima Stock Exchange (Segmento de Capital de Riesgo de la Bolsa de Valores de Lima) in Peru; and
“TSXV” means the TSX Venture Exchange.
Representations
This decision is based on the following facts represented by the Filer:
the Filer is a corporation incorporated under the Business Corporations Act (Alberta) and its registered and head office is in Toronto, Ontario;
the Filer is a reporting issuer in British Columbia, Alberta, Ontario and Nova Scotia (the Reporting Jurisdictions);
the Filer owns 100% of the Cushuro Gold Project in Peru, 100% of the Aripuanã Gold Project in Brazil and 30% of the Aripuanã Zinc Project in Brazil;
the common shares of the Filer (the Shares) are listed on the TSXV under the trading symbol “KAR” and, since June 25, 2012, on the Exchange;
the Filer listed its common shares on the Exchange due to the Filer’s connection to Peru and to facilitate the sale and transfer of its common shares in Peru;
from June 25, 2012 to the date of this decision, the Filer has been in default of securities legislation requirements in the Reporting Jurisdictions that apply to a non-venture issuer. Specifically, the Filer did not file its interim financial reports and management discussion and analysis for the period ending July 31, 2012 (the Interim Financial Report) within the 45-day filing deadline. The Interim Financial Report was subsequently filed within the 60-day filing deadline for venture issuers;
the Filer acknowledges that any right of action, remedy, penalty and/or sanction available to any person or company or to a securities regulatory authority against the Filer from June 25, 2012 until the date of this decision are not terminated or altered as a result of this decision;
the Exchange is a junior market;
the Exchange is similar to the TSXV in terms of its requirements as the requirements of the Exchange were modelled after those of the TSXV;
the Exchange requires the Filer to comply with TSXV requirements in order to maintain its listing; the Exchange also requires that the Filer file with the Exchange copies of all public disclosure documents filed with Canadian securities regulators; and
the information that the Filer has provided about the Exchange (and its status as a junior market) is accurate as the date of this decision.
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 Exemption Sought is granted, provided that :
(a) the Exchange is not restructured in a manner that makes it unreasonable to conclude that it is still a junior market;
(b) the representations listed in Sections 8 to 11 above continue to be true;
(c) the Filer continues to have the Shares listed on the TSXV; and
(d) the Filer does not have any securities listed or quoted on any of the Toronto Stock Exchange, a U.S. marketplace or a marketplace outside of Canada and the United States of America other than the Exchange, the Alternative Investment Market of the London Stock Exchange or the PLUS markets operated by PLUS Markets Group plc.
“Sonny Randhawa”
Sonny Randhawa
Manager, Corporate Finance Branch
Ontario Securities Commission