IN THE MATTER OF THE SECURITIES LEGISLATION OF
BRITISH COLUMBIA, ALBERTA, SASKATCHEWAN, MANITOBA, ONTARIO,
NEW BRUNSWICK, NEWFOUNDLAND AND LABRADOR AND NOVA SCOTIA
AND
IN THE MATTER OF THE MUTUAL RELIANCE REVIEW
SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF NEWMONT MINING CORPORATION
AND DELTA ACQUISITION LLC
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the "Decision Maker") in each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia, Newfoundland and Labrador and New Brunswick (the "Jurisdictions") have received an application from Newmont Mining Corporation ("Newmont") and its affiliate, Delta Acquisition LLC ("Delta") for a decision pursuant to:
(a) the securities legislation of the Jurisdictions (the "Legislation") exempting the Newmont Offer (as defined below) from the requirements in the Legislation of the Jurisdictions relating to take-over bids except for the requirement to file a report of a take-over bid and pay the applicable fee (the "Take-over Bid Requirements"); and
(b) section 9.1(1) of National Instrument 43-101 – Standards of Disclosure for Mineral Projects ("NI 43-101") for an exemption from the requirements of NI 43-101;
in connection with an offer, as it may
be amended from time to time, (the "Newmont Offer") to be made by Delta and Newmont to acquire all of the
outstanding ordinary shares ("Normandy Shares", (including Normandy Shares
represented by American Depository Shares ("Normandy ADSs")) of Normandy Mining
Limited, a corporation incorporated under the laws of Australia ("Normandy"), in
consideration for 0.0385 shares of common stock of Newmont ("Newmont Shares")
for each Normandy Share, plus A$0.50 per Normandy Share;
AND WHEREAS under the Mutual Reliance Review System
for Exemptive Relief Applications (the "System"), the Ontario Securities
Commission (the "Commission") is the principal regulator for this Application;
AND WHEREAS Newmont has represented to the Decision
Makers that:
1. The Newmont Offer will be made in compliance with applicable
securities laws of the United States and Australia in an offer that will use
two different
offer documents so as to comply with those securities laws.
2. Newmont wishes to provide all holders of Normandy Shares and Normandy
ADSs with the opportunity to participate in the Newmont Offer, which will be
outlined in a bidder's statement and a prospectus contained in a registration
statement on Form S-4 (the "U.S. Registration Statement").
3. Newmont is incorporated under the laws of the State of Delaware.
Newmont is engaged in the production of gold, the exploration for gold and the
acquisition and development of gold properties worldwide. Newmont has operations
in Canada, United
States, Mexico, Peru, Bolivia, Australia, Mexico and Uzbekistan.
4. Newmont's corporate headquarters are in Denver, Colorado.
5. As at November 14, 2001, Newmont's share capital consisted of (i)
250,000,000 Newmont Shares, of which 196,087,962 were outstanding; and (ii) 5,000,000
shares of convertible preferred stock, of which 2,299,980 were outstanding.
6. The Newmont Shares are listed and trade principally on the New York
Stock Exchange under the symbol "NEM" and are also listed on the Brussels
Stock
Exchange and the Swiss Stock Exchange.
7. Newmont is subject to the reporting requirements of securities
legislation in the United States. Newmont is currently a reporting issuer or
its
equivalent in British Columbia, Alberta, Saskatchewan, Manitoba and Qu�bec.
8. As of the date hereof, Newmont does not own directly or indirectly
any outstanding Normandy Shares (including Normandy Shares represented by Normandy
ADSs). Newmont has the right to acquire the 111,525,000 Normandy Shares (representing
an
aggregate of approximately 4.99% of the Outstanding Normandy Shares) currently
owned by
Franco-Nevada Mining Corporation Limited ("Franco-Nevada"), an
Ontario-headquartered public company listed on the TSE, and the 334,575,000 Normandy
Shares (representing approximately 14.99% of the Outstanding Normandy Shares)
owned by one
of Franco-Nevada's U.S. subsidiaries.
9. Normandy is incorporated under the laws of Australia. Normandy is a
major international mining company.
10. As at October 18, 2001, Normandy's issued and outstanding share
capital consisted of 2,231,293,599 Normandy Shares (inclusive of Normandy ADSs,
each Normandy ADS representing 10 Normandy Shares) and 2,943,850 unlisted employee
shares under
the Normandy Employee Share Investment Plan (collectively, the "Outstanding
Normandy
Shares"). To the best knowledge of Newmont, the employee shares are of the
same class as the Normandy Shares. Normandy also had, as at October 18, 2001,
24,550,907 options over
unissued Normandy Shares issued under the Normandy Executive Share Incentive
Plan and the
Normandy Employee Share Bonus Plan.
11. The Normandy Shares are listed on the Australian Stock Exchange and
the Normandy ADSs are listed on The Toronto Stock Exchange (the "TSE").
12. Normandy is a reporting issuer in Ontario but is not a reporting
issuer in any other province or territory of Canada. Normandy is also subject
to the reporting requirements of the securities laws of the United States and
Australia.
13. Based on information provided by Normandy, as at September 25, 2001,
there were:
(a) 21 holders of Normandy Shares in the Province of Ontario holding an aggregate of 13,493,657 Normandy Shares (representing an aggregate of approximately 0.06% of the Outstanding Normandy Shares), exclusive of the Normandy Shares held by Franco-Nevada;
(b) five holders of Normandy Shares in the Province of Qu�bec holding an aggregate of 27,995,570 Normandy Shares (representing an aggregate of approximately 1.25% of the Outstanding Normandy Shares);
(c) ten holders of Normandy Shares in the Province of British Columbia holding an aggregate of 51,300 Normandy Shares (representing an aggregate of approximately 0.0023% of the Outstanding Normandy Shares); and
(d) three holders of Normandy Shares in the Province of Alberta holding an aggregate of 25,000 Normandy Shares (representing an aggregate of approximately 0.0011% of the Outstanding Normandy Shares).
14. Based on information provided by Normandy, as at September 25, 2001, there were:
(a) 29 holders of Normandy ADSs in the Province of Ontario holding an aggregate of 5,501 Normandy ADSs (representing a negligible percentage of the Outstanding Normandy Shares); and
(b) one holder of Normandy ADSs in the Province of Qu�bec holding an aggregate of 465 Normandy ADSs (representing a negligible percentage of the Outstanding Normandy Shares).
15. Accordingly, based upon the information
in paragraph 8 and the preceding two paragraphs, in the Province of Ontario
there were 22 holders of
Normandy Shares holding an aggregate of 112,018,657 Normandy Shares (representing
an aggregate of 5.0203459% of the Outstanding Normandy Shares). One of those
shareholders,
Franco-Nevada, holds 111,525,000 Normandy Shares in Ontario (representing an
aggregate of approximately 4.99% of the Outstanding Normandy Shares) and
the other 21 holders hold in
the aggregate 13,493,657 Normandy Shares in Ontario (representing an aggregate
of approximately 0.06% of the Outstanding Normandy Shares). Similarly, there
were 30 holders
of Normandy ADSs (29 in Ontario and one in Qu�bec) who hold an aggregate of 5,966
Normandy ADSs (representing a negligible percentage of the Outstanding Normandy
Shares). Based on the information in the preceding two paragraphs, in the Jurisdictions
other than
Ontario, there are in aggregate 18 holders of Normandy Shares holding an aggregate
of 28,071,870 Normandy Shares (representing an aggregate of approximately 1.258%
of the
Outstanding Normandy Shares) and one holder of Normandy ADSs holding an aggregate
of 465 Normandy ADSs (representing a negligible percentage of the Outstanding
Normandy Shares).
In each of these other Jurisdictions, there are fewer than 50 holders of Normandy
Shares and/or Normandy ADSs representing, in aggregate, significantly less than
2% of the
Outstanding Normandy Shares.
16. The Newmont Offer will be made in Australia in accordance with the
corporate and federal securities laws of Australia and in the United States in
accordance with the federal securities laws of the United States, subject in
the United States to
limited tender offer exemptive relief available to Newmont (the "Tier II
Exemption"). The Tier II Exemption for tender offers is codified in Rule
14d-1(c) and
Rule 14d-1(d) under the Securities Exchange Act of 1934, as amended. Newmont
intends to rely on the Tier II Exemption since, to Newmont's best knowledge,
U.S. holders of Normandy Shares and Normandy ADSs hold more than 10% and less
than 40% of those
securities (counted together as a single class and excluding those Normandy Shares
and
Normandy ADSs held by all other 10% holders of Normandy).
17. The Newmont Offer will be made to U.S. holders of Normandy Shares
and Normandy ADSs by way of the U.S. Registration Statement. Newmont may complete
the Newmont Offer in the United States only if the Securities and Exchange Commission
of the
United States of America (the "SEC") declares the U.S. Registration
Statement effective. It is expected that the U.S. Registration Statement will
be declared effective
during the week of January 14, 2002.
18. Newmont complies with the guidelines published by the Society for
Mining, Metallurgy and Exploration, Inc. in its "Guide for Reporting Exploration
Information, Mineral Resources and Mineral Reserves" dated March 1, 1999
(the
"SME Guidelines"). Compliance with the SME Guidelines necessarily results
in compliance with the general guidelines promulgated by the SEC in its Guide
7. The
disclosure regime promulgated by the SME Guidelines, including the methods of
calculating reserves and resources, are in all material respects similar to those
of both NI 43-101
and the Australasian Code for Reporting of Mineral Resources and Ore Reserves.
19. The Newmont Offer will be made to Canadian holders of Normandy
Shares and Normandy ADSs on the same basis, including extending to those holders
identical rights and identical consideration, as to the holders of Normandy Shares
and Normandy ADSs
resident in the United States.
20. If the Newmont Offer is completed and Newmont acquires 90% or more
of the Normandy Shares (including Normandy Shares represented by Normandy ADSs),
Newmont intends to compulsorily acquire the remaining outstanding Normandy Shares
(including
Normandy Shares represented by Normandy ADSs) pursuant to Australian corporate
law and intends to cause Normandy to make application to the Commission for Normandy
to cease to
be a reporting issuer in the Province of Ontario and to the TSE to delist the
Normandy ADSs from that exchange. If Newmont gains control of Normandy but is
not entitled to
compulsorily acquire the outstanding Normandy Shares (including Normandy Shares
represented by Normandy ADSs), Newmont currently intends to review whether the
Normandy
ADSs should continue to be listed on the TSE.
AND WHEREAS under the
System, this MRRS Decision Document evidences the decision of each Decision
Maker (collectively, the "Decision");
AND WHEREAS each of the Decision Makers is satisfied
that the test contained in the Legislation that provides the Decision Maker with the
jurisdiction to make the Decision has been met;
THE DECISION of the Decision Makers pursuant to the
Legislation is that the Newmont Offer shall be exempt from the Take-over Bid Requirements,
provided that:
(a) all materials (the "Newmont Offer Materials") relating to the Newmont Offer that are sent by Newmont and Delta to holders of Normandy Shares (including Normandy Shares represented by Normandy ADSs) in the United States are concurrently sent to all holders of Normandy Shares (including Normandy Shares represented by Normandy ADSs) who, to Newmont's best knowledge, have their last address shown on the books of Normandy in Canada; and
(b) Newmont files copies of the Newmont Offer Materials with the Decision Makers.
Dated this 10th day of January, 2002.
| Howard I. Wetston | R. Stephen Paddon |
AND THE FURTHER DECISION of the
Decision Makers pursuant to section 9.1(1) of NI 43-101 is that Newmont and Delta shall be
exempt from the requirements of NI 43-101 in connection with the Newmont Offer Materials,
provided that all disclosure of a scientific or technical nature contained in the Newmont
Offer Materials comply with requirements of applicable United States federal securities
laws.
Dated this 10th day of January, 2002.
Ralph Shay
Headnote
Mutual Reliance Review System for Exemptive Relief Applications - Take-over bid made in
accordance with the laws of the United States and Australia - De minimis exemption
unavailable either because more than 2% of the outstanding target securities are
held by residents of a Jurisdiction or because offer will be made pursuant to exemption in
the United States - Approximatel 5% of issuer's shares held by a single Ontario
shareholder - Take-over bid exemption from the take-over bid requirements of Part XX,
subject to certain conditions including provision of U.S. registration statement to
Ontario shareholders. Offering materials exempt from National Instrument
43-101
based upon compliance with U.S. mineral project disclosure standards.
Applicable Ontario Statute
Securities Act, R.S.B.O. 1990, c. S.5, as amended, ss 93(1)(e), 95 to 100, and
104(2)(c)
Applicable Ontario Recognition Order
In the Matter of the Recognition of Certain Jurisdictions (Clauses 93(1)(e) and 93(3)(h) of Act)
Rules Cited
National Instrument 43-101 - Standards of Disclosure for Mineral Projects, ss. 9.1(1)