Ontario Commission des 22nd Floor 22e étage
Securities valeurs mobilières 20 Queen Street West 20, rue queen ouest
Commission de l’Ontario Toronto ON M5H 3S8 Toronto ON M5H 3S8
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
WESTERN AREAS LIMITED (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 British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador.
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:
The Filer is a company existing under the Corporations Act 2001 (Australia) (the Corporations Act).
The Filer’s registered office and principal place of business is located at Level 2, 2 Kings Park Road, West Perth, Western Australia 6005.
The Filer’s authorized capital consists of an unlimited number of ordinary shares (Ordinary Shares), of which 272,276,625 were issued and outstanding as of March 2, 2017.
The outstanding Ordinary Shares are listed on a major foreign exchange, the Australian Securities Exchange (the ASX), under the trading symbol “WSA”. The Ordinary Shares were previous listed on the Toronto Stock Exchange (the TSX) and were voluntarily delisted from the TSX on August 31, 2012.
The Filer is a nickel producer, with high grade nickel production assets in Australia and base metals development projects in Australia as well as investments in exploration and development stage companies that are active in Canada, Finland and Greeland.
The Filer is subject to all applicable corporate requirements of a company formed in Australia, applicable Australian securities 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.
The Filer is a reporting issuer in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador.
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).
The Filer is not in default of the securities legislation of any jurisdiction.
The Filer has no present connection to Canada other than a limited number of securityholders who are residents of Canada, the majority of whom are located in Ontario, and a 19.9% holding in Mustang Minerals Corp., which is listed on the TSX Venture Exchange and has two deposits in Manitoba.
In support of the representations set forth in paragraph 12 below concerning the percentage of outstanding securities and the total number of securityholders in Canada, 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 who provide analysis of Canadian-resident beneficial owners by issuing tracing notices to the custodian and nominee companies 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.
Based on the Filer’s diligent inquiries described above, the aggregate beneficial ownership of the Ordinary Shares in Canada as at March 2, 2017 consists of 15 shareholders beneficially owning an aggregate of 4,509,304 Ordinary Shares, representing approximately 0.27% of the total number of shareholders of the Filer and approximately 1.66% of the total outstanding Ordinary Shares.
Accordingly, based on the foregoing, as of March 2, 2017, 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.
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 or private placement 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.
The Filer has provided advance notice, via a news release that was disseminated on May 8, 2017 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 British Columbia Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador and that, if that order is made, the Filer will no longer be a reporting issuer in any jurisdiction in Canada.
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 www.westernareas.com.au and on the website of the ASX at www.asx.com.au. 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.
The Filer has provided an undertaking that it will concurrently deliver to its Canadian resident securityholders all continuous disclosure documents that the Filer is required to deliver to its Australian-resident 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.
“Mark J. Sandler” “Deborah Leckman”
Commissioner Commissioner
Ontario Securities Commission Ontario Securities Commission