Subsection 1(10) of the Securities Act (Ontario) -- Application by reporting issuer for a decision that it is not a reporting issuer -- Issuer became a reporting issuer in Ontario when its shares commenced trading on the Toronto Stock Exchange on September 18, 2007 -- Issuer only attracted a de minimis number of Canadian investors and the daily volume of trading of the Issuer's ordinary shares in the 12 months prior to de-listing from the TSX accounted for 0.08% of the Issuer's worldwide daily trading volumes -- The TSX de-listed the ordinary shares of the Issuer at the close of trading on July 12, 2010 -- Canadian resident shareholders beneficially own approximately 0.88% of the Issuer's outstanding securities and represent less than 2% of the total number of beneficial shareholders -- No securities of the Issuer trade on any market or exchange in Canada -- Issuer's securities are listed for trading on the Australian Securities Exchange, the NASDAQ market in the United States and the Port Moresby Stock Exchange -- Issuer has not taken steps to create a market for the ordinary shares and, in particular, never offered securities to the public in Ontario or in any other jurisdiction in Canada by way of a prospectus offering, and has not privately placed any ordinary shares in Canada in the last 12 months -- Issuer has undertaken that it will concurrently deliver to its Canadian securityholders all disclosure material it is required under U.S. securities laws to deliver to its securityholders in the U.S. -- Issuer has issued a press release announcing that it has submitted an application to cease to be a reporting issuer in Ontario -- Requested relief granted.
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10)(b).
August 20, 2010
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, CHAPTER S.5, AS AMENDED
IN THE MATTER OF
CSA STAFF NOTICE 12-307 APPLICATIONS FOR
A DECISION THAT AN ISSUER IS
NOT A REPORTING ISSUER
("STAFF NOTICE 12-307")
IN THE MATTER OF
LIHIR GOLD LIMITED (THE "FILER")
UPON the Director having received an application from the Filer for an order under clause 1(10)(b) of 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 company established under the company law of Papua New Guinea.
2. The Filer is a reporting issuer in the Province of Ontario, and its only outstanding securities are its ordinary shares which are listed for trading on the Australian Securities Exchange ("ASX"), the NASDAQ market in the United States and the Port Moresby Stock Exchange in its incorporating jurisdiction.
3. The Filer first became a reporting issuer in Ontario when its shares commenced trading on the Toronto Stock Exchange (the "TSX") on September 18, 2007.
4. The Filer is not a reporting issuer in any other jurisdiction in Canada.
5. The Filer had discussions with the TSX regarding a voluntary delisting of its ordinary shares from the TSX and the TSX delisted the ordinary shares at the close of trading on July 12, 2010.
6. None of the Filer's securities are 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.
7. The Filer is not in default of any reporting or other requirement of the ASX, the NASDAQ market or the Port Moresby Stock Exchange.
8. The Filer determined the number of Canadian securityholders directly or indirectly beneficially owning its shares through a review of the shareholder register kept by its registrar and transfer agent and with respect to beneficial securityholders in accordance with the process set out in National Instrument 54-101 -- Communication with Beneficial Owners of Securities of a Reporting Issuer.
9. Residents of Canada do not, directly or indirectly, beneficially own more than 2% of each class or series of outstanding securities of the issuer worldwide.
10. Residents of Canada do not, directly or indirectly, comprise more than 2% of the total number of securityholders of the issuer worldwide.
11. The number of shares held by Canadians, or residents of Canada, whether through the Australian share register or in Canada, beneficially and of record, is 21,130,778 shares representing 0.88% of the total outstanding shares.
12. The Filer has not taken steps to create a market for the ordinary shares and, in particular, never offered securities to the public in Ontario or in any other jurisdiction in Canada by way of a prospectus offering, and has not privately placed any ordinary shares in Canada in the last 12 months.
13. The Filer only attracted a de minimis number of Canadian investors and the daily volume of trading of the Filer's ordinary shares in the 12 months prior to delisting from the TSX was 27,852 shares, which accounted for 0.08% of the Filer's worldwide daily trading volumes. In contrast, the average daily volume on the ASX for the same period represented approximately 27 million shares and 7.2 million shares on NASDAQ.
14. The Filer files continuous disclosure reports under U.S. securities laws and is listed on a U.S. exchange.
15. The Filer qualifies as a "SEC 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 SEC foreign issuers under Part 4 of NI 71-102.
16. The Filer's continuous disclosure reports required under U.S. securities laws can be obtained on EDGAR, SEDAR and the Filer's website.
17. The Filer provided advance notice to Canadian resident securityholders in a press release dated June 28, 2010 that it had applied for a decision that it is not a reporting issuer in Ontario and that, if that decision was made, the issuer would no longer be a reporting issuer in any jurisdiction in Canada.
18. In a news release dated May 4, 2010 the Filer and Newcrest Mining Limited ("Newcrest") announced that they have entered into a merger implementation agreement (the "Merger") under which it is proposed that Newcrest will acquire all of the Filer's ordinary shares.
19. Newcrest is not a "related party" of the Filer as that term is defined in Multilateral Instrument 61-101 -- Protection of Minority Security Holders in Special Transactions.
20. Newcrest is a public company in Australia and has its ordinary shares listed on the ASX. Newcrest is not a reporting issuer in any jurisdiction of Canada and currently has no plans to raise financing by way of a public offering of its securities in Canada. Newcrest has no plans to undertake an offering of its securities in Canada pursuant to an exemption from the registration and prospectus requirements of the Legislation. If the Merger is implemented, Newcrest expects that beneficial Canadian securityholders will comprise less than 0.5% of the total number of its securityholders worldwide.
21. The securityholders of the Filer, including the Canadian securityholders, were mailed a copy of the circular describing the Merger with Newcrest on or about July 22, 2010. The directors of the Filer have unanimously recommended that securityholders vote in favour of the Merger in the absence of a superior proposal.
22. The meeting of shareholders to approve the Merger is scheduled to be held on August 23, 2010 and the implementation is scheduled to take place later in September. If the Merger is implemented, the Filer will cease to be a reporting issuer worldwide.
23. The Filer has undertaken that it will concurrently deliver to its Canadian securityholders all disclosure material that the Filer is required under U.S. securities laws to deliver to its securityholders in the U.S.
24. After the Merger, Newcrest has undertaken that it will concurrently deliver to the Canadian securityholders of the Filer (who will become securityholders of Newcrest) all disclosure material that Newcrest is required under ASX listing rules to deliver to Australian securityholders.
25. The Filer is not in default of any of its obligations under the Securities Act (Ontario) as a reporting issuer.
26. The Filer will not be a reporting issuer or the equivalent in any jurisdiction in Canada immediately following the Commission granting the relief requested.
AND UPON the Commission being satisfied that it would not be prejudicial to the public interest.
IT IS HEREBY ORDERED pursuant to clause 1(10)(b) of the Act that, for the purposes of Ontario securities law, the Filer is not a reporting issuer.