BHP Billiton Limited and BHP Billiton PLC - MRRS Decision
Headnote
Mutual Reliance Review Systemfor Exemptive Relief Applications - relief from the registrationand prospectus requirements for trades in connection with anarrangement under Australian law and issuance of bonus sharesunder English law - first trade registration relief for tradesof securities acquired under the arrangement through a salefacility outside of Canada.
Applicable Ontario Statutes
Securities Act, R.S.O. 1990,c. S.5, as am., ss. 74(1) - s. 25 & s. 53.
Applicable Ontario Rules
Rule 45-501 - Exempt Distributions.
Applicable National Instruments
Multilateral Instrument 45-102- Resale of Securities.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
BRITISH COLUMBIA, ALBERTA,SASKATCHEWAN, MANITOBA, ONTARIO,
QUÉBEC, NEW BRUNSWICK,NOVA SCOTIA, NEWFOUNDLAND AND LABRADOR, AND
THE NORTHWEST TERRITORIES
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
BHP BILLITON LIMITED AND
BHP BILLITON PLC
MRRS DECISION
1. WHEREAS the localsecurities regulatory authority or regulator (the "DecisionMaker") in each of British Columbia, Alberta, Saskatchewan,Manitoba, Ontario, Québec, New Brunswick, Nova Scotia,Newfoundland and Labrador, and the Northwest Territories (the"Jurisdictions") has received an application:
(a) from BHP Billiton Limited("BHPBL") for a decision under the securitieslegislation of the Jurisdictions (the "Legislation")that the requirements contained in the Legislation to beregistered to trade in a security (the "RegistrationRequirement") and to file and obtain a receipt fora preliminary prospectus and a prospectus (the "ProspectusRequirement") shall not apply to intended trades inordinary shares ("BHP Steel Shares") of BHP SteelLimited ("BHP Steel") under a scheme of arrangement;and
(b) from BHP Billiton PLC("PLC") for a decision under the Legislation thatthe Registration Requirement and the Prospectus Requirementshall not apply to intended trades in ordinary shares ofPLC ("PLC Bonus Shares") in connection with PLC'sproposed bonus share issuance;
2. AND WHEREAS underthe Mutual Reliance Review System for Exemptive Relief Applications(the "System"), the British Columbia SecuritiesCommission is the principal regulator for this application;
3. AND WHEREAS BHPBLand PLC (the "Applicants") have represented to theDecision Makers that:
1. the Applicants are thetwo publicly listed members of a dual listed company (the"BHP Billiton Group") formed by merger in 2001;while the Applicants are separate legal entities, the shareholdersof the Applicants have a common economic interest in theBHP Billiton Group and the ratio of their respective economicinterests and effective voting rights in the BHP BillitonGroup is maintained by the BHP Billiton Group;
2. BHPBL is a company organizedunder the Corporations Act of Australia;
3. BHPBL's ordinary sharesare listed and posted on the Australian Stock Exchange (the"ASX") under the symbol "BHP";
4. as at March 15, 2002,BHPBL had in excess of 292,100 shareholders, of whom approximately376 were resident in Canada as follows: 191 resident inBritish Columbia, 41 in Alberta, 3 in Saskatchewan, 5 inManitoba, 100 in Ontario, 16 in Québec, 1 in NewBrunswick, 9 in Nova Scotia, 1 in Newfoundland and Labrador,and 9 in the Northwest Territories;
5. as at March 15, 2002,BHPBL had approximately 3,714,590,604 fully paid ordinaryshares ("BHPBL Shares") and 3,048,500 partly paidordinary shares outstanding, of which approximately 1,020,313BHPBL Shares were held by Canadian residents as follows:422,716 BHPBL Shares held in British Columbia, 121,253 inAlberta, 4,682 in Saskatchewan, 3,950 in Manitoba, 332,594in Ontario, 57,908 in Québec, 11 in New Brunswick,30,136 in Nova Scotia, 2,402 in Newfoundland and Labrador,and 44,661 in the Northwest Territories;
6. as at March 15, 2002,there were approximately 69 residents of British Columbia,63 residents of Alberta, 4 residents of Saskatchewan, 6residents of Ontario, 2 residents of Québec, 1 residentof New Brunswick, 1 resident of Nova Scotia, and 273 residentsof the Northwest Territories who collectively held optionsto acquire 1,025,451 BHPBL Shares to acquire fully paidshares; these options were held by Canadian residents asfollows: 323,876 options held in British Columbia, 72,339in Alberta, 3,308 in Saskatchewan, 8,267 in Ontario, 1,354in Québec, 827 in New Brunswick, 1,033 in Nova Scotia,and 614,447 in the Northwest Territories;
7. BHPBL is not a reportingissuer or the equivalent in any jurisdiction in Canada andhas no current intention of becoming a reporting issuerin any Canadian jurisdiction;
8. BHPBL is presently asubstantial diversified natural resources company with interestsin mineral exploration, processing and production, oil andgas exploration and development and (prior to the spin-outand demerger) steel production and merchandizing;
9. PLC is a company organizedunder the Companies Act of England and Wales;
10. the outstanding ordinaryshares of PLC ("PLC Shares") are listed and postedfor trading on the London Stock Exchange and the JohannesburgStock Exchange;
11. as at March 15, 2002,PLC had in excess of 8,800 shareholders of whom approximately14 were resident in Canada as follows: 1 resident in BritishColumbia, 9 in Ontario, 2 in Québec, and 2 in NovaScotia;
12. as at March 15, 2002,PLC had approximately 2,319,147,885 PLC Shares outstanding,of which 128,087 were held by residents of Canada as follows:38,500 PLC Shares held in British Columbia, 55,982 in Ontario,25,085 in Québec, and 8,520 in Nova Scotia;
13. PLC is not a reportingissuer or the equivalent in any jurisdiction in Canada andhas no current intention of becoming a reporting issuerin any Canadian jurisdiction;
14. PLC is a substantialdiversified natural resources company with interests inaluminium smelting and milling, and bauxite, coal, lead,zinc and heavy minerals mining;
15. BHP Steel is a companyorganized under the Corporations Act of Australiaand is currently a wholly-owned subsidiary of BHPBL;
16. BHP Steel is the majorproducer of flat steel products in Australia and New Zealand;
17. BHPBL intends to spin-outand demerge its wholly-owned subsidiary, BHP Steel, by wayof a reduction of capital and scheme of arrangement (the"Scheme");
18. the Scheme contemplatesthat, through the implementation of a capital reductionof approximately A$0.69 per share (the "Reduction Amount"),holders of BHPBL Shares will receive one BHP Steel Sharefor each 5 BHPBL Shares currently held; a separate arrangementis proposed between BHPBL and holders of partly paid sharesof BHPBL whereby the capital reduction of approximatelyA$0.69 per share will be applied to meet an interim callon the partly paid shares;
19. BHP Steel Shares willbe listed and posted on the ASX on or about July 15, 2002;
20. holders of options toacquire BHPBL Shares may elect to acquire BHPBL Shares inaccordance with the terms of the options (in which casethey will be treated under the Scheme in the same manneras other BHPBL shareholders), or to have the exercise priceof the options reduced by the Reduction Amount;
21. the Scheme further contemplatesthat holders of BHPBL Shares who are entitled to receiveBHP Steel Shares will have the option to sell those BHPSteel Shares through a sales facility to be establishedoutside of Canada (the "Sale Facility") by BHPBLbefore the BHP Steel Shares are listed on the ASX;
22. the Scheme requiresboth shareholder and court approval;
23. a Scheme booklet (the"Scheme Booklet") (which will include all materialinformation regarding the operation and business of BHPSteel prepared in accordance with the Corporations Actin Australia) will be mailed to holders of BHPBL Sharesin connection with meetings of BHPBL's shareholders scheduledfor June 26, 2002 to approve the Scheme;
24. BHPBL intends to mailthe Scheme Booklet to its shareholders on May 24, 2002;
25. in order to ensure thatthe holders of PLC Shares receive equitable treatment tothe holders of BHPBL Shares who will receive BHP Steel Sharesunder the Scheme, PLC will issue PLC Bonus Shares to theholders of PLC Shares concurrently with the Scheme; holdersof PLC Shares must approve the proposed demerger of BHPSteel from BHPBL and the issuance of the PLC Bonus Shares;
26. a circular will be sentto all holders of PLC Shares on or about May 24, 2002 (the"Circular") in connection with a meeting of PLC'sshareholders scheduled for June 26, 2002;
27. each Canadian shareholderof BHPBL has received all public disclosure with regardto BHPBL, including ongoing information regarding the steelmanufacturing and distribution activities carried on byBHP Steel in the past, and will receive a Scheme Booklet;
28. each holder of PLC Shareswill receive a Circular, together with the Scheme Booklet,that will set out all information required under the lawsof the United Kingdom with respect to the Scheme and theissue of Bonus Shares, including the means of calculatingthe number of PLC Bonus Shares to be distributed;
29. there is no market inCanada for either the BHP Steel Shares or the PLC BonusShares and there is no likelihood of one developing;
30. BHP Steel will sendcopies of its disclosure materials to its shareholders residentin Canada at the same time and in the same manner as theyare delivered to its shareholders in Australia, and PLCwill send copies of its disclosure materials to its shareholdersresident in Canada at the same time and in the same manneras they are delivered to its shareholders in England andWales;
31. trades in BHP SteelShares in connection with the Scheme to BHPBL shareholdersin the Jurisdictions are not exempt from the RegistrationRequirement and the Prospectus Requirement under the Legislationof certain of the Jurisdictions;
32. trades in PLC BonusShares to holders of PLC Shares in the Jurisdictions arenot exempt from the Registration Requirement and the ProspectusRequirement under the Legislation of the Jurisdictions;and
33. trades of BHP SteelShares received in connection with the Scheme through theSale Facility are not exempt from the Registration Requirementunder the Legislation of the Jurisdictions;
4. AND WHEREAS underthe System, this MRRS Decision Document evidences the decisionof each Decision Maker (collectively, the "Decision");
5. AND WHEREAS eachof the Decision Makers is satisfied that the test containedin the Legislation that provides the Decision Maker with thejurisdiction to make the Decision has been met;
6. THE DECISION ofthe Decision Makers under the Legislation is that:
1. the Registration Requirementand the Prospectus Requirement shall not apply to BHPBL'sdistribution of BHP Steel Shares in connection with theScheme, or to PLC's distribution of PLC Bonus Shares, providedthat the first trade in BHP Steel Shares or PLC Bonus Sharesacquired under this Decision in a Jurisdiction shall bedeemed to be a distribution or a primary distribution tothe public under the Legislation of such Jurisdiction unless:
(a) except in Québec,the conditions in section 2.14(1) of Multilateral Instrument45-102 Resale of Securities are satisfied; or
(b) in Québec,the alienation is made through an exchange, or a market,outside of Canada or to a person or company outside ofCanada;and
2. the Registration Requirementshall not apply to a trade by a holder in the Jurisdictionsin BHP Steel Shares acquired in connection with the Schemeif:
(a) at the time of thetrade, BHP Steel is not a reporting issuer under the Legislationof any of the Jurisdictions;
(b) at the time of thedistribution of the BHP Steel Shares to the holders inthe Jurisdictions, after giving effect to the issuanceof the BHP Steel Shares, residents of Canada: (A) didnot own directly or indirectly more than 10 percent ofthe outstanding BHP Steel Shares, and (B) did not representin number more than 10 percent of the total number ofowners directly or indirectly of BHP Steel Shares; and
(c) the trade is executedthrough the Sale Facility.
June 5, 2002.
"Brenda Leong"