Headnote National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – National Instrument 43-101 Standards of Disclosure for Mineral Projects – exchangeable security issuer applied for relief from the requirement to file a technical report as a result of filing an information circular concerning the indirect acquisition of a mineral project where the resulting issuer issues securities as consideration in connection with an internal restructuring - parent issuer applied for relief from the requirement to file a technical report as a result of a new exchangeable securities issuer becoming a reporting issuer in connection with an internal restructuring – relief granted subject to conditions
Applicable Legislative Provisions
National Instrument 43-101 Standards of Disclosure for Mineral Projects, ss. 4.1, 4.2(1)(c), and 9.1
November 10, 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 NEWMONT MINING CORPORATION (“NEWMONT”) AND NEWMONT MINING CORPORATION OF CANADA (“NMCCL”)
(together, the “FILERS” and each a “FILER”)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filers for a decision under the securities legislation of the Jurisdiction of the principal regulator (the “Legislation”) for exemptive relief under Part 9 of National Instrument 43-101 – Standards of Disclosure for Mineral Projects (“NI 43-101”) from (i) the obligation of an affiliate of Newmont (“New Exchangeco”) under Section 4.1 of NI 43-101, upon becoming a reporting issuer in each province of Canada in connection with the NMCCL Arrangement (as defined below), and (ii) the obligation of NMCCL, upon filing an information circular in connection with the NMCCL Arrangement (as defined below) in each province of Canada, to file in those jurisdictions a technical report for each mineral property material to Newmont (the “Exemption 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 this application (the “Principal Regulator”), and
(b) The Filers have provided notice that pursuant to paragraph 4.7(1)(c) of Multilateral Instrument 11-102 – Passport System (the “Passport Rule”), the Exemption Sought is to be relied upon by the Filers with respect to the equivalent provisions of the legislation of each local jurisdiction in which New Exchangeco becomes a reporting issuer in connection with the NMCCL Arrangement and in which NMCCL will file the information circular in connection with such NMCCL Arrangment.
Interpretation
Terms defined in National Instrument 14-101 – Definitions and the Passport Rule 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:
Newmont
Newmont is a corporation governed by the laws of the State of Delaware with its head office in Denver, Colorado. Newmont is engaged in the production of gold and copper, the exploration for gold and the acquisition and development of gold/copper properties worldwide. Newmont has significant assets and/or operations in Canada, the United States, Australia, Peru, Indonesia, Ghana, New Zealand and Mexico.
The shares of common stock in the capital of Newmont (“Newmont Common Stock”) are listed and principally traded on the New York Stock Exchange (the “NYSE”), under the symbol “NEM”. Newmont’s current market capitalization is approximately $30 billion.
Newmont is subject to the reporting requirements of securities legislation in the United States and the rules and policies of the NYSE.
Newmont became a reporting issuer in the provinces of British Columbia, Alberta, Saskatchewan, Manitoba and Québec on January 10, 2001. Newmont subsequently became a reporting issuer in all of the other provinces.
Newmont satisfies its continuous disclosure obligations under applicable Canadian securities law through compliance with National Instrument 71-101 – The Multijurisdictional Disclosure System (“NI 71-101”).
Newmont is not currently in default of the securities legislation of any Canadian jurisdiction.
The Franco Arrangement
On February 16, 2002, Newmont completed its acquisition of Franco-Nevada Mining Corporation Limited (“Franco-Nevada”) pursuant to a plan of arrangement (the “Franco Arrangement”) under the Canada Business Corporations Act (the “CBCA”).
Under the Franco Arrangement, holders of Franco-Nevada shares were entitled to elect to receive either shares of Newmont Common Stock or exchangeable shares (the “NMCCL Exchangeable Shares”) in the capital of Newmont Mining Corporation of Canada Limited (“NMCCL”), which are described in greater detail below.
Approximately 55.9 million NMCCL Exchangeable Shares and approximately 71.9 million shares of Newmont Common Stock were issued under the Franco Arrangement. There are currently approximately 488.2 million shares of Newmont Common Stock and 6.6 million NMCCL Exchangeable Shares (excluding those held by Newmont and its affiliates) outstanding.
NMCCL and the NMCCL Exchangeable Shares
NMCCL is a corporation governed by the federal laws of Canada, was incorporated for the purpose of issuing the NMCCL Exchangeable Shares and is the continuing corporation following its amalgamation with Franco-Nevada and others in connection with the Franco Arrangement.
The NMCCL Exchangeable Shares were, and still are:
(a) listed on the Toronto Stock Exchange (the “TSX”) under the symbol “NEM”;
(b) exchangeable for shares of Newmont Common Stock at the option of the holder on a one-for-one basis;
(c) securities with rights (including economic and voting rights) that are, as nearly as practicable, equivalent to the shares of Newmont Common Stock.
The NMCCL Exchangeable Shares have no residual equity entitlement in the assets of NMCCL.
While NMCCL holds interests, direct and indirect, in certain mineral properties, holding entities and investment assets (the “NMCCL Assets”), holders of NMCCL Exchangeable Shares (“NMCCL Shareholders”) do not have any interest in such assets, holdings or properties that is distinct from their economic interest in Newmont Common Stock.
As a result of the Franco Arrangement and the issuance of the NMCCL Exchangeable Shares, NMCCL became a reporting issuer in the provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador (the “Reporting Jurisdictions”).
On January 30, 2002, NMCCL was granted an order under National Policy 12-201 – Mutual Reliance Review System (the “NMCCL Order”), which provides NMCCL with exemptive relief from, among other things, the continuous disclosure obligations under applicable Canadian securities laws provided that it, in essence, files and sends to NMCCL Shareholders all disclosure material furnished to holders of shares of Newmont Common Stock in the United States including, without limitation, copies of annual and interim financial statements, all proxy-related materials and all materials required to be filed by Newmont with the United States Securities and Exchange Commission under the United States Securities Exchange Act of 1934. The relief granted in the NMCCL Order is, in substance, equivalent to the exemption currently contained in Section 13.3 of NI 51-102.
NMCCL is not currently in default of the securities legislation of any Canadian jurisdiction.
Applicability of NI 43-101 to Newmont and NMCCL
As each of Newmont and NMCCL was a reporting issuer in at least one Canadian jurisdiction prior to the implementation of NI 43-101, neither has ever triggered an obligation to file technical reports under Section 4.1 of NI 43-101.
In addition, neither Newmont nor NMCCL has ever triggered an obligation to file technical reports under Section 4.2 of NI 43-101. Specifically:
(a) Newmont satisfies its disclosure obligations under applicable Canadian securities laws by filing the documents that it is required to file under the securities laws of the United States (which comply with applicable U.S. rules regarding the disclosure of technical information) in compliance with NI 71-101 (which specifically excludes the application of NI 43-101 to a distribution of securities in Canada by eligible issuers) and has not taken any other action that would trigger an obligation under Section 4.2 of NI 43-101 to file technical reports; and
(b) NMCCL satisfies its disclosure obligations under applicable Canadian securities laws by filing the documents that Newmont is required to file under the securities laws of the United States in compliance with the NMCCL Order (and Section 13.3 of NI 51-102), and has not taken any other action that would trigger an obligation under Section 4.2 of NI 43-101 to file technical reports.
- Neither Newmont nor NMCCL has voluntarily filed technical reports under NI 43-101.
The NMCCL Arrangement
Newmont and certain of its affiliates propose to implement an arrangement (the “NMCCL Arrangement”) of NMCCL under the CBCA. The proposed NMCCL Arrangement would involve a series of transactions intended to provide Newmont with a more flexible and efficient corporate structure.
Under the NMCCL Arrangement, NMCCL Shareholders (other than Newmont and its affiliates and NMCCL Shareholders who exercise dissent rights in connection with the NMCCL Arrangement) would be entitled to receive (directly or indirectly), in exchange for each of their NMCCL Exchangeable Shares, either one new exchangeable share (the “New Exchangeable Shares”) in the capital of New Exchangeco, a company to be incorporated by an affiliate of Newmont, or the one share of Newmont Common Stock for which the NMCCL Exchangeable Share currently is exchangeable. As described in greater detail below, the New Exchangeable Shares will have substantively identical attributes as the NMCCL Exchangeable Shares, including the same economic equivalence to shares of Newmont Common Stock and the same voting rights.
Other than the exchange of NMCCL Exchangeable Shares for New Exchangeable Shares or the shares of Newmont Common Stock into which the NMCCL Exchangeable Shares are currently exchangeable, the NMCCL Arrangement is essentially an “internal corporate reorganization” and does not involve the direct or indirect acquisition or disposition by Newmont or any of its affiliates of any mineral property or any other asset (and, without limiting the generality of the foregoing, the NMCCL Arrangement does not involve the transfer of the NMCCL Assets to New Exchangeco).
Subject to the terms and conditions of the interim order (the “Interim Order”) that will be obtained from the Ontario Superior Court of Justice (the “Court”) in connection with the NMCCL Arrangement, the NMCCL Arrangement will require (a) the approval of NMCCL Shareholders (other than Newmont and its affiliates) holding not less than 66 2/3% of the NMCCL Exchangeable Shares voted (either in person or by proxy) at a special meeting (the “Meeting”) of the NMCCL Shareholders (currently scheduled to be held on or about December 9, 2011), and (b) the final approval of the Court. At the Meeting, each NMCCL Shareholder will be entitled to one vote for each NMCCL Exchangeable Share held.
In connection with the Meeting, NMCCL will mail a management information circular (the “NMCCL Circular”) to NMCCL Shareholders (other than Newmont and its affiliates) that complies with applicable Canadian securities laws. The NMCCL Circular will include prospectus-level disclosure of the business and affairs of Newmont and New Exchangeco (subject to the application by Newmont and NMCCL for the exemptive relief described above), a detailed description of the NMCCL Arrangement and the securities to be issued thereunder.
Subject to obtaining all applicable approvals, it is currently anticipated that the NMCCL Arrangement would be completed in mid-December, 2011.
New Exchangeco and the New Exchangeable Shares
New Exchangeco will be incorporated as a special purpose entity for the purpose of issuing the New Exchangeable Shares in connection with the NMCCL Arrangement.
The authorized share capital of New Exchangeco will consist of an unlimited number of common shares and an unlimited number of New Exchangeable Shares. Upon completion of the NMCCL Arrangement, all of the outstanding common shares would be indirectly held by Newmont and all of the outstanding New Exchangeable Shares would be held by former NMCCL Shareholders who receive New Exchangeable Shares under the NMCCL Arrangement.
Upon the completion of the NMCCL Arrangement, New Exchangeco would become a reporting issuer in each of the Reporting Jurisdictions. New Exchangeco intends to satisfy its continuous disclosure obligations under applicable Canadian securities laws through compliance with Section 13.3 of NI 51-102, as has been done by NMCCL.
The terms and conditions of, and the contractual rights associated with, the New Exchangeable Shares would be substantively identical to the terms and conditions of, and the contractual rights associated with, the NMCCL Exchangeable Shares. In particular, the New Exchangeable Shares would:
(a) be exchangeable for shares of Newmont Common Stock at the option of the holder on a one-for-one basis;
(b) have rights (including economic and voting rights) that are, as nearly as practicable, equivalent to the shares of Newmont Common Stock.
Like the NMCCL Exchangeable Shares, the New Exchangeable Shares would have no residual equity entitlement.
Application will be made for the New Exchangeable Shares to be listed, like the NMCCL Exchangeable Shares that they will replace, on the TSX.
Applicability of NI 43-101 to New Exchangeco
- In the absence of the Exemption Sought, as a result of New Exchangeco becoming a reporting issuer in at least one Canadian jurisdiction in connection with the NMCCL Arrangement, New Exchangeco may technically trigger an obligation under Section 4.1 of NI 43-101 to file, upon completion of the NMCCL Arrangement, NI 43-101 compliant technical reports. Additionally, in the absence of the Exemption Sought, as a result of the structure of the NMCCL Arrangement the filing and dissemination of the NMCCL Circular may technically trigger an obligation under Section 4.2 of NI 43-101 to file NI 43-101 compliant technical reports at the time of the NMCCL Circular to support the disclosure therein contained.
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) immediately before the completion of the NMCCL Arrangement:
(i) NMCCL and Newmont satisfy, and have satisfied since the NMCCL Exchangeable Shares were distributed in Canada, all applicable conditions of the exchangeable security issuer exemption in section 13.3 of NI 51-102; and
(ii) Newmont satisfies all of the applicable general eligibility criteria for a northbound MJDS issuer set out in section 3.1 of NI 71-101;
b) immediately following the completion of the NMCCL Arrangement:
(i) New Exchangeco and Newmont will satisfy all applicable conditions of the exchangeable security exemption in section 13.3 of NI 51-102; and
(ii) Newmont will satisfy all of the applicable general eligibility criteria for a northbound MJDS issuer set out in section 3.1 of NI 71-101;
c) the NMCCL Circular includes (or incorporates by reference disclosure which includes):
(i) disclosure that substantively addresses the substance of the representations in paragraphs 1, 2, 13 and 20-31 in this decision;
(ii) prospectus-level disclosure about Newmont prescribed by a form of prospectus that Newmont would be eligible to use under NI 71-101;
(iii) disclosure that New Exchangeco will be a newly incorporated entity that will, immediately prior to completion of the NMCCL Arrangement, have no material assets, income or liabilities; and
(iv) the description of the NMCCL Assets in representation in paragraph 13 in this decision, and disclosure that the NMCCL Assets will not be transferred to New Exchangeco; and
d) the NMCCL Circular is sent to NMCCL Shareholders no later than November 30, 2011.
“Jo-Anne Matear”
Jo-Anne Matear
Manager, Corporate Finance
Ontario Securities Commission