African Rainbow Minerals Gold Limited and RBC Dominion Securities Inc. - MRRS Decision
Headnote
Mutual Reliance Review System- National Instrument 43-101. South African issuer selling securitiesvia a private placement is granted relief granted from requirementsin Parts 2, 3, 4, 5, 6 and 8 of NI 43-101 on the following twogrounds:
(i) after the offering theissuer would have a de minimis presence in Canada;and
(ii) the inclusion of tworepresentations stating that:
(a) in the opinion ofa qualified person the definitions and standards of theSouth African code for Reporting of Mineral Resourcesand Mineral Reserves (SAMREC Code) are substantively similarto the definitions and standards of the Canadian Instituteof Mining, Metallurgy and Petroleum (the "CIM Standards")which are recognized by the Canadian regulatory authoritiesand contained in National Instrument 43-101 - Standardsfor Disclosure of Mineral Projects; and
(b) a reconciliation ofthe reserves and resources between the SAMREC Code andthe CIM Standards does not provide a materially differentresult."
Rules Cited
National Instrument 43-101.Standard of Disclosure for Mineral Projects s. 9.1.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
BRITISH COLUMBIA, MANITOBA,ONTARIO AND
QUEBEC
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
AFRICAN RAINBOW MINERALS GOLDLIMITED AND
RBC DOMINION SECURITIES INC.
MRRS DECISION DOCUMENT
WHEREAS the local securitiesregulatory authority or regulator (the "Decision Maker")in each of British Columbia, Manitoba, Ontario and Québec(the "Jurisdictions") has received an applicationfrom African Rainbow Minerals Gold Limited (the "Issuer"or "ARMgold") and RBC Dominion Securities Inc.(the "Dealer") (and collectively with the Issuer,the "Applicants") for a decision pursuant tosubsection 9.1(1) of National Instrument 43-101 ("NI43-101") that the Applicants be exempt from Parts 2,3, 4, 5, 6 and 8 of NI 43-101 in connection with: (i) the disclosuremade in connection with; and (ii) the offering memorandum (the"Offering Memorandum") prepared by the Issuerfor the Canadian Offering (defined below);
AND WHEREAS under theMutual Reliance Review System for Exemptive Relief Applications(the "System"), the Ontario Securities Commissionis the principal regulator for this application;
AND WHEREAS, the Applicantshave represented to the Decision Makers that:
1. The Issuer is a companyincorporated pursuant to the laws of the Republic of SouthAfrica ("South Africa") with its head officein Johannesburg, South Africa. The Issuer is a mining companywhich owns gold mines in South Africa. In 2001, the Issuerwas the fifth largest gold producer in South Africa with anannual gold production of approximately 520,000 ounces;
2. The Issuer is not a reportingissuer or its equivalent in any of the Jurisdictions, norare any of its securities listed or posted for trading onany stock exchange in Canada. The Issuer has no present intentionof becoming a reporting issuer or its equivalent in any ofthe Jurisdictions or of becoming listed in Canada;
3. The authorized capitalof the Issuer consists of ordinary shares (the "OrdinaryShares"), of which approximately 68,000,000 OrdinaryShares were issued and outstanding as of April 9, 2002;
4. As of April 26, 2002, therewere no registered or beneficial holders of ARMgold OrdinaryShares in Canada;
5. The Issuer intends to offerfor subscription newly issued Ordinary Shares and its majorityshareholder, African Rainbow Minerals & Exploration Investments(Proprietary) Limited, intends to offer for sale OrdinaryShares held by it in an initial offering by way of privateplacement (collectively, the "Offering")having an aggregate value of approximately 1.4 billion Randand, in that regard, is currently in the process of preparinga prospectus (the "Prospectus") to be filedwith and approved by the JSE Securities Exchange, South Africa(the "JSE") in Johannesburg, South Africaand the Registrar of Companies in South Africa, pursuant towhich the Issuer intends to become listed on the JSE;
6. Approximately 40% of theOffering will be offered to purchasers resident in South Africaand approximately 60% of the Offering will be offered to purchasersresident outside of South Africa (the "InternationalPurchasers"), including an offering to purchasersresident in the Jurisdictions (the "Canadian Offering"),the United States, Australia and Europe (collectively, theCanadian Offering and the offering to purchasers in the UnitedStates, Australia and Europe being referred to as the "InternationalOffering"). The Shares offered pursuant to the InternationalOffering will be offered on a private placement basis by theDealer (or affiliates of the Dealer);
7. The Applicants anticipatethat up to 25% of the Offering may be made in Canada;
8. Pursuant to the listingand disclosure requirements of the JSE, the South Africandealer has submitted a draft of the Prospectus for approvalto the JSE and the Dealer has been advised by the South Africandealer that the draft of the Prospectus complies (and theProspectus will comply) with the listings requirements ofthe JSE (the "Listings Requirements");
9. Pursuant to the ListingsRequirements, the Prospectus will contain, in full, a CompetentPersons' Report (the "CPR") of the miningassets of ARMgold dated March 1, 2002. The reserve and resourcecalculations in the CPR were prepared in accordance with theSouth African Code for Reporting of Mineral Resources andMineral Reserves (the "SAMREC Code"). Similarto NI 43-101, the Listing Requirements prescribe the formand content of the disclosure required in the CPR in connectionwith the scientific and technical information to be providedin respect of mineral projects;
10. The CPR will be preparedby, amongst others, Dr. Michael Harley, MSAIMM, Ph.D. andMr. H.G. Waldeck, Pr. Eng. MSAIMM, both employees of Steffen,Robertson and Kirsten (South Africa) (Proprietary) Limited("SRK"), each of whom is a member of SouthAfrican Institute of Mining and Metallurgy, and by Dr. IestynHumphreys, AM.I.Min.AIME, Ph.D. an employee of Steffen, Robertsonand Kirsten (UK) Limited.
11. In connection with theInternational Offering, the Issuer will distribute the OfferingMemorandum containing the Prospectus and any additional disclosurerequired in the Jurisdictions and included in the InternationalOffering. In particular, the Offering Memorandum will containdisclosure required under Canadian securities laws applicablein the Jurisdictions relating to, among other things, prospectusand registration exemptions, statutory rights of action andexchange rate information;
12. The Issuer will file theOffering Memorandum in each of the Jurisdictions within 10days of the closing of the Offering;
13. The Offering Memorandumwill contain the following cautionary statement (the "CautionaryStatement"):
"The scientific and technicalinformation contained in the attached Prospectus, includingthat in the Competent Persons' Report, was prepared in compliancewith the South African Code for Reporting Mineral Resourcesand Mineral Reserves (the "SAMREC Code") and theListing Requirements. In the opinion of the Competent Person:(i) the definitions and standards of the SAMREC Code are substantivelysimilar to the definitions and standards of the Canadian Instituteof Mining, Metallurgy and Petroleum (the "CIM Standards")which are recognized by the Canadian regulatory authoritiesand contained in National Instrument 43-101 - Standardsfor Disclosure of Mineral Projects; and (ii) a reconciliationof the reserves and resources between the SAMREC Code andthe CIM Standards does not provide a materially differentresult."
14. Upon completion of theOffering, residents of Canada will beneficially hold lessthan 10% of the issued and outstanding Ordinary Shares.
AND WHEREAS under theSystem this Decision Document evidences the decision of eachDecision Maker (collectively, the "Decision");
AND WHEREAS each of theDecision Makers is satisfied that the test contained in NI 43-101that provides the Decision Maker with the jurisdiction to makethe decision has been met;
THE DECISION of the DecisionMakers pursuant to subsection 9.1(1) of NI 43-101 is that Parts2, 3, 4, 5, 6 and 8 of NI 43-101 will not apply to the Applicantsin connection with (i) the disclosure made in connection with;and (ii) the Offering Memorandum prepared by the Issuer forthe Canadian Offering provided that the disclosure of resourcesand reserves in the Offering Memorandum includes:
(i) the Cautionary Statement;and
(ii) a reference to this Decision.
May 10th, 2002.
"Margo Paul"