Bank of New York and Northgate Minerals Corporation - s. 46(4) of the OBCA
Headnote
Order pursuant to subsection 46(4) of the Business Corporations Act (Ontario) - trust indenture to be governed by the United States Trust Indenture Act of 1939, as amended, in connection with a proposed public offering of debt securities of an issuer in the United States and Canada - trustee to be appointed under the trust indenture undertakes to file with the Commission and on SEDAR a submission to the non-exclusive jurisdiction of the courts and administrative tribunals of Ontario and appointment of an agent for service of process in Ontario - any pricing supplement or prospectus supplement under which the debt securities will be offered in Ontario will include disclosure about the existence of this order and a statement regarding the risks associated with the purchase of debt securities of the issuer under the trust indenture by a holder in Ontario as a result of the absence of a local trustee appointed under the trust indenture - trust indenture exempted from the requirements of Part V of the Business Corporations Act (Ontario).
Applicable Legislative Provisions
Business Corporations Act , R.S.O. 1990, c. B.16, as am., ss. 46(2), 46(3), 46(4), Part V.
Securities Act , R.S.O. 1990, c. S.5, as am..
Trust Indenture Act of 1939 , 53 Stat. 1149 (1939), 15 U.S.C., Secs. 77aaa-77bbb, as am.
June 27, 2008
IN THE MATTER OF
THE BUSINESS CORPORATIONS ACT,
R.S.O. 1990, CHAPTER B. 16, AS AMENDED
(THE "OBCA")
AND
IN THE MATTER OF
THE BANK OF NEW YORK AND
NORTHGATE MINERALS CORPORATION
ORDER
(Subsection 46(4) of the OBCA)
UPON the application of The Bank of New York (the "Applicant") to the Ontario Securities Commission (the "Commission") for an order that:
a) pursuant to subsection 46(4) of the OBCA exempting a trust indenture to be entered into between Northgate Minerals Corporation ("Northgate") and the Applicant from the requirements of Part V of the OBCA; and
b) the Application and this order be kept confidential by the Commission until the earlier of: (i) the date on which Northgate announces its intention to file a supplemental short form prospectus; (ii) the date on which the Applicant advises the Commission that there is no longer any need for the application for this order and this order to remain confidential; and (iii) the date which is 60 days from the date of this order.
AND UPON considering the application and the recommendation of the staff of the Commission;
AND UPON it being represented by Northgate and the Applicant to the Commission that:
1. The Applicant is a banking corporation organized under the laws of New York and is neither resident nor authorized to do business in Ontario and will be the trustee under an indenture (the "Indenture") to be entered into between Northgate and the Applicant.
2. Northgate is a corporation amalgamated under the laws of British Columbia and is a reporting issuer not in default under the Securities Act, R.S.O. 1990, c. S.5, as amended (the "Act") or the regulations promulgated thereunder. Northgate's head office is located at Suite 406, 815 Hornby Street, Vancouver, British Columbia, Canada, V6Z 2E6.
3. Any sales of debt securities (the "Debt Securities") by Northgate will be under the Indenture. The Indenture is governed by the laws of the State of New York. A final form of the Indenture was filed with the United States Securities and Exchange Commission (the "SEC") as an exhibit to the Amendment No. 1 to the registration statement (the "Registration Statement") of Northgate on Form F-10, dated June 5, 2008, that contains a final base shelf prospectus dated June 5, 2008 under which Debt Securities of Northgate may be offered for sale in the United States.
4. A short form base shelf prospectus has been filed by Northgate with the Commission pursuant to National Instrument 44-101 Short Form Prospectus Distributions and National Instrument 44-102 Shelf Distributions to qualify the distribution of the Debt Securities in each of the provinces and territories of Canada. The Indenture will be filed by Northgate with the Commission in connection with the filing of the prospectus.
5. Public offers and sales of the Debt Securities, if any, will be made in the United States and in each of the provinces and territories of Canada.
6. Unless otherwise specified in the applicable prospectus supplement, the Debt Securities issued in Canada will not be listed on any stock exchange in Canada.
7. Since a prospectus has been filed under the Act, Part V of the OBCA applies to the Indenture by virtue of subsection 46(2) of the OBCA.
8. As a result of the filing of the Registration Statement with the SEC, the Indenture is subject to and governed by the provisions of the United States Trust Indenture Act of 1939 (the "TIA"). Upon the receipt of requested exemptions under the OBCA pursuant to this order, the Indenture will continue to be subject to the TIA. The Indenture provides that there shall always be a trustee thereunder that satisfies the requirements of sections 310(a)(1), 310(a)(2) and 310(b) of the TIA and that the terms of such Indenture will be consistent with the requirements of the TIA.
9. As the TIA regulates trustees and trust indentures of publicly offered debt securities in the United States in a manner that is consistent with Part V of the OBCA, holders of Debt Securities in Ontario will not, subject to paragraph 10, derive any additional material benefit from having the Indenture be subject to Part V of the OBCA.
10. The Applicant has filed with the Commission and will file on SEDAR a submission to the non-exclusive jurisdiction of the courts and administrative tribunals of Ontario and appointment of an agent for service of process in Ontario (a "Submission to Jurisdiction and Appointment of Agent for Service of Process").
11. Northgate has advised the Applicant that any pricing supplement or prospectus supplement (a "Supplement") under which Debt Securities will be offered or sold in Canada will disclose the existence of this order and state that the Applicant and the assets of the Applicant and if applicable, all or certain of its officers and directors are located outside of Ontario and, as a result, it may be difficult for a holder of Debt Securities to enforce rights against the Applicant, its officers or directors, or the Applicant's assets and that the holder may have to enforce rights against the Applicant in the United States.
AND UPON the Commission being of the opinion that to do so would not be prejudicial to the public interest;
IT IS ORDERED, pursuant to subsection 46(4) of the OBCA, that the Indenture is exempt from Part V of the OBCA, provided that:
a) the Indenture is governed by and subject to the TIA; and
b) prior to or concurrently with the filing of any Supplement of Northgate, the Applicant, or any trustee that replaces the Applicant under the terms of the Indenture, has filed with the Commission and on SEDAR a "Submission to Jurisdiction and Appointment of Agent for Service of Process".
IT IS ORDERED that the Application and this order be held in confidence by the Commission until the earlier of (i) the date on which Northgate announces its intention to file a supplemental short form prospectus; (ii) the date on which the Applicant advises the Commission that there is no longer any need for the application for this order and this order to remain confidential; and (iii) the date which is 60 days from the date of this order.