Gold Fields Limited - MRRS Decision
Headnote
Mutual Reliance Review System - National Instrument43-101. South African issuer selling securities via a privateplacement is granted relief from the requirements in Parts 2,3, and 4 of NI 43-101. The issuer will have a de minimispresence in Canada after the offering.
Rules Cited
National Instrument 43-101 - Standard of Disclosurefor Mineral Projects, s. 9.1.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
BRITISH COLUMBIA, ALBERTA,MANITOBA,
ONTARIO AND QUEBEC
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
GOLD FIELDS LIMITED
MRRS DECISION DOCUMENT
WHEREAS the Canadian securities regulatoryauthority or regulator (a "Decision Maker") in eachof the provinces of British Columbia, Alberta, Manitoba, Ontario,and Quebec (the "Jurisdictions") has received an applicationfrom Gold Fields Limited ("Gold Fields") for a decisionpursuant to subsection 9.1(1) of National Instrument 43-101("NI 43-101") that Gold Fields be exempt from therequirements of Parts 2, 3 and 4 of NI 43-101 in connectionwith: (i) the disclosure relating to the Canadian Offering (asdefined below) and (ii) the offering memorandum (the "OfferingMemorandum") prepared by Gold Fields for the Canadian Offering;
AND WHEREAS pursuant to the Mutual RelianceReview system for Exemptive Relief Applications, the OntarioSecurities Commission is the principal regulator for this application;
AND WHEREAS Gold Fields has representedto the Decision Makers that:
1. Gold Fields is a company incorporated pursuantto the laws of the Republic of South Africa ("South Africa")with its head office in Parktown, South Africa. On the basisof annual production, Gold Fields is currently one of thelargest gold producers in the world, the second largest goldproducer in South Africa and a significant gold producer inGhana and Australia. Gold Fields has a market capitalizationof approximately US$6 billion.
2. Gold Fields is not a reporting issuer orits equivalent in any of the Jurisdictions or any other provinceor territory of Canada nor are any of its securities listedor posted for trading on any stock exchange in Canada. GoldFields has no present intention of becoming a reporting issueror its equivalent in Canada or becoming listed on an exchangein Canada.
3. The authorized share capital of Gold Fieldsconsists of 1,000,000,000 ordinary shares ("Shares")of which approximately 470,000,000 Shares were issued andoutstanding as of June 30, 2002.
4. The Shares are listed and traded on theJSE Securities Exchange South Africa ("JSE") onwhich they trade under the symbol "GFI". The Sharesare also listed on the London Stock Exchange, the PremierMarche of Euronext Paris and the SWX Swiss Exchange. The AmericanDepositary Shares ("ADSs") of Gold Fields are listedon the New York Stock Exchange. Each ADS represents one Share.In addition, the International Depositary Shares of Gold Fields,each representing one Share, are listed on Euronext Brussels.
5. Gold Fields is subject to the reportingrequirements of securities legislation in South Africa, theUnited States, Australia and the United Kingdom. Gold Fieldsis required to comply fully with the South African Code forReporting of Mineral Resources and Mineral Reserves (the "SAMRECCode") and the Australasian Code for Reporting IdentifiedMineral Resources and Ore Reserves (the "JORC Code").
6. Gold Fields intends to offer newly issuedShares and ADSs by way of a prospectus offering in the UnitedStates and by way of a prospectus-exempt offering in otherjurisdictions, including a private placement in Canada (collectively,the "Offering"). The aggregate value of the Offeringis expected to be approximately US$700 million. The offeringto purchasers resident in the Jurisdictions (the "CanadianOffering") is expected to be up to US$100 million.
7. In connection with the public offeringof the Shares in the United States, a prospectus (the "prospectus")has been filed with and will be reviewed by the United StatesSecurities and Exchange Commission (the "SEC").In addition, Gold Fields filed a Form 20-F with the SEC inconnection with the listing of its ADSs on the NYSE in May2002.
8. The disclosure in the Prospectus and theForm 20-F comply with SEC Industry Guide 7, "Descriptionof property by issuers engaged or to be engaged in significantmining operations". As disclosed in the Prospectus, Steffen,Robertson and Kirsten (South Africa) (Pty) Ltd., an independentCompetent Person (as defined under the SAMREC Code), verifiedthe reserve information in the Prospectus except for the Damangmine acquired in January 2002, which was verified by GoldFields' in-house Competent Person (as defined under the SAMRECCode).
9. In connection with the Canadian Offering,if the relief is granted as requested, Gold Fields will distributethe Offering Memorandum containing the Prospectus and anyadditional disclosure required under Canadian securities lawsapplicable in the Jurisdictions and will file the OfferingMemorandum in each of the Jurisdictions within 10 days ofthe closing of the Offering.
10. If the relief is granted as requested,the Offering Memorandum and subscription agreements for investorsresident in Canada will contain the following cautionary statement(the "Cautionary Statement"):
"No technical report, as defined underNational Instrument 43-101 B Standards for Disclosure ofMineral Projects, will be provided in connection withthis offering or filed with any of the Canadian securitiesregulatory authorities.
The information contained in the attachedProspectus with respect to the reserves of Gold Fields' SouthAfrican and Ghana operations was prepared in compliance withthe South African Code for Reporting Mineral Resources andMineral Reserves (the "SAMREC Code") and only thosereserves that also comply with Industry Guide 7 of the UnitedStates Securities and Exchange Commission ("Guide 7")were included. In the opinion of Steffen, Robertson and Kirsten(South Africa) (Pty) Ltd., (i) the definitions and standardsof the SAMREC Code and Guide 7 are substantively similar tothe definitions and standards of the Canadian Institute ofMining, Metallurgy and Petroleum (the "CIM Standards")which are recognized by the Canadian securities regulatoryauthorities and contained in National Instrument 43-101 BStandards for Disclosure of Mineral Projects; and (ii)a reconciliation of the reserves between the SAMREC Code,Guide 7 and the CIM Standards does not provide a materiallydifferent result.
The information contained in the attachedProspectus with respect to the reserves of Gold Fields' Australianoperations was prepared in compliance with the AustralasianCode for Reporting Identified Mineral Resources and Ore Reserves(the "JORC Code") and only those reserves that alsocomply with Guide 7 were included. In the opinion of Steffen,Robertson and Kirsten (South Africa) (Pty) Ltd., (i) the definitionsand standards of the JORC Code and Guide 7 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 B Standardsfor Disclosure of Mineral Projects; and (ii) a reconciliationof the reserves between the JORC Code, Guide 7 and the CIMStandards does not provide a materially different result."
11. As of June 30, 2002, less than 1% of theShares (including the ADSs) were held by shareholders of recordwho had addresses in Canada and such shareholders representedless than 1% of the total number of holders of the Shares(including the ADSs). Upon completion of the Offering, lessthan 2% of the Shares (including the ADSs) will be held byshareholders of record who have addresses in Canada and suchshareholders will represent less than 2% of the total numberof holders of the Shares (including the ADSs).
AND WHEREAS this MRRS Decision Documentconfirms the decision of each Decision Maker (collectively,the "Decision"):
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the NI 43-101 that providesthe Decision Maker with the jurisdiction to make the Decisionhas been met;
IT IS THE DECISION of the Decision Makers,pursuant to subsection 9.1(1) of NI 43-101, that Parts 2, 3and 4 of NI 43-101 will not apply to Gold Fields in connectionwith (i) the disclosure made in connection with the CanadianOffering; and (ii) the Offering Memorandum prepared by GoldFields for the Canadian Offering, provided that the OfferingMemorandum includes:
1. the Cautionary Statement; and
2. a reference to this Decision.
July 12, 2002.
"Margo Paul"