Newcrest Mining Limited
Headnote
Subsection 1(10) of the Securities Act -- Application by a reporting issuer for an order that it is not a reporting issuer -- based on diligent enquiry, residents of Canada (i) do not directly or indirectly beneficially own more than 2% of each class or series of outstanding securities of the reporting issuer worldwide, and (ii) do not directly or indirectly comprise more than 2% of the total number of shareholders of the reporting issuer worldwide -- Issuer is subject to Australian securities law and requirements of the Australian Stock Exchange -- Issuer has undertaken that it will concurrently deliver to its Canadian securityholders all disclosure material it is required under Australian reporting requirements to deliver to Australian resident securityholders -- Issuer has provided notice through a press release that it has submitted an application to cease to be a reporting issuer in Ontario.
Applicable Legislative Provisions
Securities Act (Ontario), s. 1(10)(a)(ii).
IN THE MATTER OF THE SECURITIES ACT, R.S.O. 1990, CHAPTER S.5, AS AMENDED (THE "ACT") AND IN THE MATTER OF NEWCREST MINING LIMITED (THE "FILER")
ORDER
UPON the Director having received an application (the "Application") from the Filer for an order under subparagraph 1(10)(a)(ii) of the Securities Act, R.S.O. 1990, Chapter S.5, as amended (the "Act") that the Filer is not a reporting issuer in Ontario (the "Requested Order");
AND UPON considering the application and the recommendation of the staff of the Ontario Securities Commission (the "Commission");
AND UPON the Filer representing to the Commission as follows:
1. The Filer is a corporation that dates back to 1966, when Newmont Mining Limited established an Australian subsidiary, Newmont Holdings Limited, which subsequently changed its name to Newmont Australia Limited. In 1990, Newmont Australia Limited acquired Australmin Holdings Ltd, subsequently merged with BHP Gold Limited and changed its name to Newcrest Mining Limited. The Filer's registered and head office is located at Level 9, 600 St. Kilda Road, Melbourne, Victoria, 3004.
2. The Filer is the largest gold producer by market capitalization listed on the Australian Securities Exchange (the "ASX") and is one of the top five gold producers globally by reserves. The Filer's operations are concentrated in Australia, Papua New Guinea, Côte d'Ivoire and Indonesia. The Filer does not have any operations in Canada.
3. The Filer is a reporting issuer in Ontario and is not a reporting issuer in any other jurisdiction of Canada. The Filer is not in default of the securities legislation of Ontario (the "Legislation").
4. The Filer first became a reporting issuer in Ontario under the Legislation following the listing of its ordinary shares on the Toronto Stock Exchange ("TSX") in March 2012.
5. The ordinary shares of the Filer were voluntarily delisted from the TSX effective September 4, 2013. An aggregate of 74,739 ordinary shares were traded on the TSX. On September 25, 2013, the Canadian securities register of the Filer was transferred from its Canadian transfer agent, Canadian Stock Transfer Company ("CST"), to its Australian transfer agent, Link Market Services Limited ("Link").
6. The authorized share capital of the Filer as of July 31, 2014 consisted of ordinary shares. As of July 31, 2014, there were 766,510,971 ordinary shares issued and outstanding. As of June 30, 2014, there were 4,618,280 American Depositary Receipts issued through the Bank of New York Mellon in the United States, representing approximately 0.6% of the issued and outstanding ordinary shares.
7. The Filer's securities are listed and posted for trading on a major foreign exchange, being the ASX. The Filer also maintains a listing on the Port Moresby Stock Exchange (the "POMSox"). The Filer is not in default of any of the requirements of the ASX or the POMSox.
8. Other than the listing of the ordinary shares described in sections 4 and 5 above, none of the Filer's securities are or have been listed, traded or quoted on a marketplace in Canada as defined in National Instrument 21-101 -- Marketplace Operation and the Filer does not intend to have its securities listed, traded or quoted on such a marketplace in Canada.
9. The Filer is a "designated foreign issuer" under National Instrument 71-102 -- Continuous Disclosure and Other, Exemptions Relating to Foreign Issuers ("NI 71-101") 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.
10. In support of the representations set forth in paragraph 11 below concerning the percentage of outstanding securities and the total number of security holders in Canada, the Filer sought and obtained information from several sources about the number, holdings, identity and geographic location of the beneficial holders of its outstanding ordinary shares. The Filer has undertaken a thorough and diligent examination of its share register. The Filer has also made inquiries to the Filer's share registry, Link Market Services Limited and CST. The transfer agents in turn made relevant inquiries of participants holding positions in the Filer's securities. The Filer also engaged the advisory services group of NASDAQ OMX to provide an analysis of Canadian resident beneficial owners by issuing tracing notices to the custodian and nominee companies listed on the Filer's share register. NASDAQ OMX confirmed that this is done in accordance with s. 672 of the Corporations Act of Australia. The Filer believes that these inquiries were reasonable, given that its share register and the transfer agents are the only official sources of information on the Filer's security holders.
11. Based on the Filer's diligent inquiries described above and information provided by the Filer's transfer agents, as of July 31, 2014, the Filer had 766,510,971 ordinary shares outstanding held, either directly or indirectly, by 82,036 beneficial shareholders, of which only 6,526,054 shares were held, either directly or indirectly, by 56 beneficial shareholders with addresses in Canada, representing approximately 0.85% of the total number of ordinary shares issued and outstanding on July 31, 2014 and 0.07% of the total number of securityholders worldwide.
12. Accordingly, based on the foregoing, as of July 31, 2014, residents of Canada:
(a) do not directly or indirectly beneficially own more than 2% of each class or series of the outstanding securities (including debt securities) of the Filer worldwide; and
(b) do not directly or indirectly comprise more than 2% of the total number of securityholders of the Filer worldwide.
13. The Filer is unable to rely on the simplified procedure set out in CSA Staff Notice 12-307 in order to apply for the Requested Order because the Filer's securities are traded on the ASX and it has more than 50 security holders in total worldwide.
14. In the 12 months before applying for the decision, the Filer has not taken any steps that indicate there is a market for its securities in Canada and, in particular, has not conducted a prospectus offering in Canada nor has it established or maintained a listing on a Canadian marketplace or exchange.
15. The Filer is subject to all applicable corporate requirements of a corporation formed in Australia and the applicable securities laws and rules of the ASX, which is a major foreign exchange. The Filer is not in default of any of the requirements of Australian law applicable to it.
16. All disclosure required to be made by the Filer under applicable Australian securities laws is publicly available to all of the Filer's security holders through the Filer's website at www.newcrest.com.au and through the ASX's website at www.asx.com.au.
17. On September 23, 2014, the Filer issued and filed a press release announcing that it has submitted an application to the OSC for a decision that is not a reporting issuer in Ontario and, if that decision is granted, the Filer will no longer be a reporting issuer or the equivalent in any jurisdiction in Canada.
18. The Filer has provided an undertaking that it will concurrently deliver to its Canadian securityholders all disclosure material that it would be required under Australian securities laws or exchange requirements to deliver to Australian resident securityholders.
19. Securityholders resident in Canada will continue to receive all continuous disclosure documents delivered to securityholders of the Filer who are resident in Australia.
20. The Filer will not be a reporting issuer or the equivalent in any jurisdiction of Canada immediately following the Commission making the Requested Order.
AND UPON the Commission being satisfied that it would not be prejudicial to the public interest;
IT IS HEREBY ORDERED pursuant to subparagraph 1(10)(a)(ii) of the Act that, for the purposes of the Legislation, the Filer is not a reporting issuer.
DATED this 28th day of November, 2014.