Ontario Commission des 22^nd^ Floor 22e étage
Securities valeurs mobilières 20 Queen Street West 20, rue queen uest
Commission de l’Ontario Toronto ON M5H 3S8 Toronto ON M5H 3S8
May 15, 2023
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
Yamana Gold Inc. (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 (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 Alberta, British Columbia, Saskatchewan, Manitoba, Québec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon, Northwest Territories and Nunavut.
Interpretation
Terms defined in National Instrument 14‑101 Definitions and MI 11‑102 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 corporation governed by the Canada Business Corporations Act with its head office located in Toronto, Ontario.
The Filer is a reporting issuer in each of the provinces and territories of Canada and is not in default of any of its obligations under the securities legislation of any of the provinces and territories of Canada.
The authorized capital of the Filer consists of common shares. As at March 30, 2023, the Filer had the following issued and outstanding securities: (i) 962,196,883 common shares (the Filer Shares) listed on the Toronto Stock Exchange, the NYSE American LLC and the London Stock Exchange; (ii) 1,241,077 restricted share units; (iii) 2,213,967 performance share units; (iv) 5,444,594 deferred share units; and (v) US$782,875,000 of Senior Notes (defined below).
On January 31, 2023, the shareholders of the Filer approved a statutory plan of arrangement under section 192(7) of the Canada Business Corporations Act (Plan of Arrangement).
The arrangement (the Arrangement) was completed on March 31, 2023 (the Effective Date).
Under the Plan of Arrangement, Pan American Silver Corp. (Pan American) acquired all of the Filer Shares after the sale to Agnico Eagle Mines Limited (Agnico) of the Filer’s Canadian assets, including certain subsidiaries and partnership which hold the Filer’s interests in the Canadian Malartic mine, all upon the terms and conditions of the arrangement agreement dated November 4, 2022, between the Filer, Pan American and Agnico. The Filer obtained the final order of the Ontario Superior Court of Justice approving the Arrangement on February 6, 2023.
Pursuant to the Plan of Arrangement, among other things, the following occurred on the Effective Date:
a. all of the Filer Shares have been transferred to Pan American in exchange for common shares of Pan American; and
b. all of the Filer’s restricted share units, performance share units and deferred share units have been transferred to the Filer and cancelled in exchange for a cash payment.
Immediately upon the completion of the Arrangement, on the Effective Date, the Filer became a wholly-owned subsidiary of Pan American, and as of the Effective Date, the only securities of the Filer that are outstanding are: (i) 962,196,883 Filer Shares held by Pan American; and (ii) US$782,875,000 of Senior Notes (defined below).
As a result of the completion of the Arrangement, the Filer has no active operations in Canada.
The Filer previously issued US$500 million aggregate principal amount of 2.63% senior notes due August 2031 (the 2031 Notes) and US$300 million aggregate principal amount of 4.625% senior notes due December 2027 (the 2027 Notes).
US$17.125 million of the 2027 Notes have been redeemed, resulting in US$282.875 million aggregate principal amount of 2027 Notes outstanding (together, with the 2031 Notes, the Senior Notes).
The Senior Notes were issued pursuant to a trust indenture dated June 30, 2014 as amended and supplemented from time to time (the Indenture) on a private placement basis, primarily to qualified institutional buyers in the United States in accordance with Rule 144A of the United States Securities Act of 1933 (the Securities Act) as well as to persons outside the United States in accordance with Regulation S of the Securities Act.
The Senior Notes have not been qualified for distribution to the public under the securities laws of any province or territory of Canada and may not be offered and sold in Canada, directly or indirectly, other than pursuant to applicable private placement exemptions. The Senior Notes are not convertible or exchangeable into equity or other voting securities of the Filer.
All of the Senior Notes are held in book-entry form and are represented by global certificates registered in the name of The Depository Trust Company or its nominee (DTC), with beneficial interests therein recorded in the records maintained by DTC and its participants as financial intermediaries that hold securities on behalf of their clients.
The Filer made diligent enquiry with Broadridge Financial Solutions, Inc. (Broadridge) and obtained information to ascertain the beneficial ownership of the Senior Notes.
The Filer reviewed reports prepared by Broadridge as at April 6, 2023 (the Securityholder Reports) to better understand the number of Canadian beneficial holders of the Senior Notes. The Securityholder Reports, comprised of a Canadian and a foreign beneficial holder report, contain the geographical holdings information gathered by Broadridge from financial intermediaries in Canada and the United States that hold beneficial interests in the Senior Notes.
Out of the aggregate principal amount of US$782,875,000 of Senior Notes, the Securityholder Reports provide a geographic breakdown representing US$735,086,004 of the Senior Notes, and the remaining US$47,788,996 of the Senior Notes, representing 6.104% of the aggregate principal amount of the Senior Notes, were held by an undisclosed number of holders who have elected not to be identified.
The Securityholder Reports capture collectively 1,031 known beneficial holders of Senior Notes, representing 93.896% of the aggregate principal amount of the Senior Notes, of which 1 is a Canadian resident in Quebec, holding US$15,000 of aggregate principal amount of the Senior Notes (representing approximately 0.002% of the issued and outstanding Senior Notes).
The terms of the Senior Notes do not require that the Filer maintain its status as a reporting issuer in any jurisdiction or otherwise restrict the Filer's ability to obtain the Order Sought.
Pan American is a reporting issuer in each of the provinces and territories of Canada.
In accordance with the terms of the Indenture, Pan American, the Filer, Wilmington Trust, National Association, as the trustee (Trustee) and Citibank, NA (Securities Administrator) entered into a supplemental indenture dated as of March 31, 2023, as filed on SEDAR on March 31, 2023, whereby Pan American voluntarily agreed to become a guarantor under the Indenture.
As Pan American became a guarantor under the Indenture, Pan American would qualify as a "credit support issuer" under section 13.4 of National Instrument 51-102 Continuous Disclosure Obligations.
The Indenture includes a reporting covenant providing that notwithstanding that the Filer may not be required to remain subject to reporting requirements under U.S. securities laws, or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting, the Filer shall continue to provide Trustee and Securities Administrator:
a. within 90 days of the end of each fiscal year, audited consolidated financial statements of the Filer for the preceding fiscal year, and a corresponding management’s discussion and analysis of such audited consolidated financial statements; and
b. within 60 days of the end of the first three fiscal quarters of each fiscal year, unaudited financial statements of the Filer for the preceding fiscal quarter, and a corresponding management’s discussion and analysis of such unaudited consolidated financial statements.
The reporting covenant can only be modified with consent of the majority of noteholders. On May 5, 2023, Pan American announced the successful completion of a consent solicitation process that amends the reporting covenant in the Indenture to provide that, for so long as the Senior Notes are guaranteed by Pan American or any other entity that directly or indirectly controls the Filer, reports of Pan American or of such other controlling entity may be provided in lieu of reports of the Filer. The amendments were approved by a majority in the principal amount outstanding of each series of Senior Notes. As such, reports will continue to be provided to Trustee and Securities Administrator.
The Filer Shares have been delisted from the Toronto Stock Exchange effective as of the close of trading on April 3, 2023, and from the NYSE American LLC effective as of the open of trading on April 3, 2023.
The Financial Conduct Authority has cancelled the listing of the Filer Shares on the standard listing segment of the official list as of the open of trading on April 3, 2023, and the London Stock Exchange has cancelled the trading of the Filer Shares on the London Stock Exchange’s main market as of the open of trading on April 3, 2023.
The Senior Notes have never been listed on any exchange.
The Filer is not an OTC reporting issuer under Multilateral Instrument 51‑105 Issuers Quoted in the U.S. Over-the-Counter Markets.
No securities of the Filer, including debt securities, are traded in Canada or another country on a marketplace as defined in National Instrument 21‑101 Marketplace Operation or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported.
The Filer is applying for an order that the Filer has ceased to be a reporting issuer in all of the jurisdictions of Canada in which it is a reporting issuer.
The Filer has no current intention to seek financing by way of public offering of securities in Canada or to distribute securities to the public in Canada.
The Filer is not eligible to use the simplified procedure under National Policy 11-206 Process for Cease to be a Reporting Issuer Applications as it has more than 51 holders of Senior Notes.
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.
“Marie-France Bourret” ”
Marie-France Bourret
Manager, Corporate Finance
Ontario Securities Commission OSC File#: 2023/0132