Boliden AB
Headnote
National Policy 11-206 Process for Cease to be a Reporting Issuer Applications -- Application by a reporting issuer for an order that it is not a reporting issuer in the jurisdictions of Canada -- Issuer is a public company governed by the Swedish Companies Act and its securities are traded only on a market or exchange outside of Canada -- Based on diligent inquiry, residents of Canada (i) do not directly or indirectly beneficially own more than 2% of each class or series of outstanding securities of the issuer worldwide, and (ii) do not directly or indirectly comprise more than 2% of the total number of securityholders of the issuer worldwide -- Issuer has provided notice through a press release that it has submitted an application to cease to be a reporting issuer in the jurisdictions of Canada -- Issuer will deliver to Canadian securityholders continuous disclosure documents required to be prepared under Swedish securities laws.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10)(a)(ii).
National Policy 11-206 Process for Cease to be a Reporting Issuer Applications.
October 25, 2019
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 OF BOLIDEN AB (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 of the principal regulator (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 British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador.
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:
1. The Filer is a company governed by the Swedish Companies Act (2005:551) with company registration number 556051-4142.
2. The Filer is a metal mining company engaged in the exploration, mining, smelting, and recycling of metals with a main focus on zinc-, copper-, lead-, gold-- and silver-bearing ores.
3. The Filer's head office is located at Klarabergsviadukten 90, P.O. Box 44, SE-101 20 Stockholm, Sweden. The Company maintains no office and has no employees in Canada.
4. As of September 30, 2019, the Filer's issued capital is 273,511,169 shares with a nominal value of SEK 2.12 each (each, a "Share"). All Shares have the same voting power and grants the same entitlement to dividends. The Filer has no other securities outstanding except for the Shares. The share capital of the Filer totals SEK 578,914,338.
5. The Filer has no debt obligations other than ordinary course trade payables, external bank credit facilities and bonds. The Filer has issued two corporate bonds in the Swedish capital markets. The first bond (SEK 500 million) was issued in 2014 and the second bond (SEK 750 million) was issued in 2019 (the "Bond Offering"). Marketing of the Bond Offerings only targeted local (Nordic) markets, which is further highlighted by the raised volumes being in Swedish Kronor (SEK). Residents of Canada do not directly own any of the outstanding debt issued pursuant to the Bond Offerings and, to the knowledge of the Filer, residents of Canada do not beneficially own any of the outstanding debt issued pursuant to the Bond Offerings.
6. The Shares have been listed on the NASDAQ Stockholm Exchange (the "NSE"), segment Large Cap, under the trading symbol "BOL" since December 5, 2001.
7. In 1997, the Shares were listed on the TSX and the Filer became a reporting issuer in certain Canadian jurisdictions.
8. The Filer's securities have only been listed on the NSE and the TSX.
9. The Filer is not a reporting issuer in any jurisdiction in Canada other than Alberta, British Columbia, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador.
10. The Filer had discussions with the TSX regarding a voluntary delisting of its Shares from the TSX and the TSX delisted the Shares on or about April 23, 2013.
11. The Filer is subject to all applicable corporate requirements of a company formed in Sweden and the applicable securities laws and rules of the NSE. The Filer is not in default of any requirements of Swedish law or the rules or requirements of the NSE applicable to it.
12. The Filer is not in default of securities legislation in any jurisdiction of Canada.
13. The Filer is unable to rely on the simplified procedure set out in NP 11-206 to seek an order that it is not a reporting issuer in the applicable jurisdictions of Canada as the Filer has, among other things, more than 50 securityholders worldwide.
14. The Filer is a non-U.S. issuer incorporated or organized under the laws of a foreign jurisdiction and listed on a major foreign exchange. As the Filer (i) meets the 2% test regarding the Filer's securityholder base in Canada and (ii) can demonstrate that its Canadian securityholders will receive adequate continuous disclosure under foreign securities law (both as described below), it is eligible to apply for the Order under the modified procedure set out in NP 11-206.
15. None of the Filer's securities are listed, traded or quoted on a marketplace in Canada (as that term is defined in National Instrument 21-101 Marketplace Operation) and the Filer does not intend to have its securities listed, traded or quoted on any such marketplace in Canada.
16. The Filer has no material connection to Canada other than certain non-operating subsidiaries and a limited number of securityholders who are residents of Canada. In particular:
a) the Filer's registered office is located in Sweden;
b) the Filer's annual general meetings of securityholders take place outside of Canada and will continue to take place outside of Canada;
c) the Filer has no material assets or operations in Canada; and
d) none of the Filer's directors, officers or employees are residents of Canada.
17. In support of the representations set forth below concerning the percentage of outstanding securities and the total number of security holders in Canada, the Filer has:
(a) undertaken a thorough and diligent examination of the Filer's list of shareholders (the Register) maintained by its counsel in Canada;
(b) undertaken a thorough and diligent examination of the Filer's share register (the "Registered Shareholder List") maintained by Euroclear Sweden ("Euroclear"), the Swedish Securities Register Center;
(c) caused Broadridge Financial Solutions, Inc. (Broadridge) to conduct a search (the Broadridge Search) to confirm the residency of the beneficial holders of the shares held through intermediaries who are clients of Broadridge; and
(d) undertaken a thorough and diligent examination of the Filer's non-objecting beneficial owner list.
18. Because the Filer does not have a Canadian transfer agent, the Filer is unable to confirm whether the holdings of the Canadian-resident nominee ("Canadian Nominee") and the international resident nominees (the "International Nominees") are reflected in the Broadridge Search.
19. Based on the information contained in the Register, and the information provided by Broadridge and Euroclear, the Filer estimates that there are 485 beneficial shareholders with a Canadian address holding 2,580,142 Shares.
20. As of September 30, 2019, there were 273,511,169 Shares issued and outstanding. Based on the information provided by Broadridge and Euroclear and the Filer's estimates in paragraph 19 above, Canadian residents beneficially owned no more than 2,580,142 Shares, representing 0.943% of the total outstanding Shares.
21. To the knowledge of the Filer, residents of Canada do not directly or indirectly comprise more than 2% of the total number of shareholders of the Filer worldwide. The due diligence conducted by the Filer in support of the foregoing representation is as follows:
According to the Registered Shareholder List, as of September 30, 2019, there were 79,749 registered holders. Based on the Filer's estimates referenced in paragraph 19 above, there were 485 beneficial shareholders with a Canadian address holding an aggregate of 2,580,142 Shares, and accordingly residents of Canada do not directly or indirectly comprise more than 0.608% of the total number of shareholders of the Filer.
22. Accordingly, based on the foregoing, as of September 30, 2019, residents of Canada do not:
(a) directly or indirectly beneficially own more than 2% of each class or series of outstanding securities (including debt securities) of the issuer worldwide; and
(b) directly or indirectly comprise more than 2% of the total number of securityholders of the issuer worldwide.
23. The Filer has no current intention to seek public or private financing by way of an offering of securities in any jurisdiction of Canada.
24. In the past 12 months, the Filer has not taken any steps that indicate there is a market for its securities in Canada and has not conducted a prospectus or private placement offering in Canada, nor has it established or maintained a listing on an exchange in Canada or had its securities traded on a marketplace or other facility in Canada for bringing together buyers and sellers where trading data is publicly reported. The Filer only attracted a de minimis number of Canadian investors and the Filer voluntarily delisted its Shares from the TSX on or about April 23, 2013. The Filer has no plans to seek a public offering of its securities in Canada or an offering pursuant to an exemption from the prospectus requirements of Canadian securities laws.
25. The Filer has not issued securities in Canada pursuant to a prospectus or an exemption from the prospectus requirements.
26. The Filer files continuous disclosure reports under Swedish securities laws and follows the exchange requirements of the NSE. All such continuous disclosure documents of the Filer will be in the English language and publicly available to all of the Filer's securityholders on the Filer's website at www.boliden.com.
27. The Filer qualifies as a "designated foreign issuer" under National Instrument 71-102 -- Continuous Disclosure and Other Exemptions Relating to Foreign Issuers ("NI 71-102") and has relied on and complied with the exemptions from Canadian continuous disclosure requirements afforded to designated foreign issuers under Part 5 of NI 71-102.
28. The Filer has provided advanced notice to Canadian resident securityholders in a press release dated June 5, 2019 that it has applied to the OSC for an order stating that it is not a reporting issuer in the Jurisdictions and, if that order is made, the Filer will no longer be a reporting issuer in any jurisdiction in Canada.
29. The Filer undertakes to concurrently deliver to its Canadian security holders an English language version of all disclosure the Filer would be required under Swedish securities laws or exchange requirements to deliver to Swedish-resident securityholders.
30. Upon the receipt of the Order Sought, the Filer will no longer be a reporting issuer in any jurisdiction of Canada.
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.