National Policy 11-206 Process for Cease to be a Reporting Issuer Applications– Application for an order that an issuer is not a reporting issuer under applicable securities laws – Following an arrangement, all of the issuer’s common shares were acquired by another company that is a reporting issuer and in compliance with its continuous disclosure obligations – Issuer has outstanding non-convertible debt securities and convertible securities that are beneficially owned by more than 50 persons – Convertible securities are exercisable for securities of the acquiror or redeemable based on the value of the shares of the acquiror – Issuer is not required under the terms of the debt securities to provide any continuous disclosure to the holders of the debt securities or to remain a reporting issuer – Debt securities of the issuer are traded the broker-dealer networks in the U.S. – Order granted.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10)(a)(ii).
September 10, 2019
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
BRITISH COLUMBIA AND ONTARIO
IN THE MATTER OF
THE PROCESS FOR CEASE TO BE
A REPORTING ISSUER APPLICATIONS
IN THE MATTER OF
¶1 The securities regulatory authority or regulator in each of the Jurisdictions (Decision Maker) has received an application from the Filer for an order under the securities legislation of the Jurisdictions (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 dual application):
- the British Columbia Securities Commission is the principal regulator for this application;
- 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 Alberta, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island, Québec, Saskatchewan and Yukon, and
- this order is the order of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
¶2 Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this order, unless otherwise defined.
¶3 This order is based on the following facts represented by the Filer:
- the Filer is a company existing under the Business Corporations Act (Ontario) (the OBCA) and its head office is located in Vancouver, British Columbia;
- the Filer is a reporting issuer in each jurisdiction of Canada;
- prior to the Arrangement (as defined below), the Filer had 869,472,554 common shares (Goldcorp Shares), 4,146,247 restricted share units (RSUs), 3,632,882 options to purchase Goldcorp Shares (Options), 1,295,420 phantom restricted share units (Phantom RSUs), 2,426,546 performance share units (PSUs) and the Goldcorp Notes (as defined below) outstanding; the Options, Phantom RSUs and PSUs are not transferable pursuant to their terms; the Filer had no other securities outstanding;
- the Goldcorp Shares were listed on the Toronto Stock Exchange (the TSX) under the symbol “G” and the New York Stock Exchange (the NYSE) under the symbol “GG”;
- Newmont Goldcorp Corporation, formerly known as Newmont Mining Corporation, (Newmont) is a corporation existing under the laws of the State of Delaware; the authorized capital of Newmont consists of 1,280,000,000 shares of common stock (the Newmont Shares) and 5,000,000 shares of preferred stock;
- Newmont is subject to the 1934 Act, as amended and is a reporting issuer in each of the provinces of Canada; the Newmont Shares are listed on the NYSE under the stock symbol “NEM”;
- on January 14, 2019, the Filer and Newmont entered into an arrangement agreement, as amended on February 19, 2019, whereby Newmont agreed to acquire all of the issued and outstanding Goldcorp Shares pursuant to a plan of arrangement under section 182 of the OBCA (the Arrangement); holders of the Goldcorp Shares, RSUs, Options, Phantom RSUs and PSUs were provided with notice of the special meeting to consider the Arrangement; on April 18, 2019, the Filer and Newmont completed the Arrangement and the Filer became a wholly owned subsidiary of Newmont;
- at the effective time of the Arrangement:
- each Goldcorp Share, other than those held by Newmont or any of its affiliates, was converted into the right to receive (i) 0.3280 of a Newmont Share, par value $1.60 per share, and (ii) $0.02 in cash;
- each RSU issued under the Filer’s 2008 restricted share unit plan, as amended, was deemed to be exchanged by the holder for a Newmont restricted share unit that entitles the holder to receive the number of Newmont Shares based on the equity award exchange ratio under the Arrangement (the Equity Award Exchange Ratio);
- each Option issued under the Filer’s 2005 stock option plan, as amended, remained outstanding on its existing terms, and upon the exercise of each Option, the holder became entitled to receive a fraction of a Newmont Share equal to the Equity Award Exchange Ratio for each Goldcorp Share underlying such Option;
- each Phantom RSU issued under the Filer’s 2013 phantom restricted share unit plan, as amended, remained outstanding on its existing terms, and the holder became entitled to receive a cash payment based on the “Share Value” of each Phantom RSU which is determined based on the trading price of a Newmont Share on the NYSE and the Equity Award Exchange Ratio;
- each PSU issued under the Filer’s 2010 performance share unit plan, as amended, remained outstanding on its existing terms, and the holder became entitled to receive a cash payment based on the “Fair Market Value” of the PSU which is determined based on the volume weighted average price of the Newmont Shares on the NYSE for 30 trading days and the Equity Award Exchange Ratio;
- there are no other incentive awards that are convertible or exchangeable into, or based on the price of, securities of the Filer;
- additional Newmont Shares have been authorized for issuance upon the exercise of the Options;
- the Filer is not required to remain a reporting issuer pursuant to the terms of governing documents for the Options, Phantom RSUs and PSUs;
- holders of the Options, Phantom RSUs and PSUs are not entitled to receive any ongoing disclosure about the Filer; holders of the Options, as well as holders of the Phantom RSUs and PSUs, have access to Newmont’s continuous disclosure record, which is the disclosure relevant to such holders since the Options are now exercisable for, and the Phantom RSUs and PSUs are settled with reference to the value of, Newmont Shares;
- following completion of the Arrangement, the Goldcorp Shares were delisted from the NYSE on April 18, 2019 and from the TSX on April 23, 2019; the Filer does not have any further reporting obligations in the U.S.;
- the Filer has the following series of notes (collectively, the Goldcorp Notes) outstanding:
- 3.625% notes due June 9, 2021 (the 3.625% Notes), of which an aggregate principal amount of $550 million was initially issued;
- 3.700% notes due March 15, 2023 (the 3.700% Notes), of which an aggregate principal amount of $1 billion was initially issued; and
- 5.450% notes due June 9, 2044 (the 5.450% Notes), of which an aggregate principal amount of $450 million was initially issued;
- the Goldcorp Notes were issued pursuant to an indenture dated as of March 20, 2013, between the Filer and Wells Fargo Bank, National Association, as trustee (the Trustee), as supplemented by a first supplemental indenture dated March 20, 2013 and a second supplemental indenture dated June 9, 2014 (the Indentures);
- the Goldcorp Notes were issued in the U.S. only, in accordance with the Canada/U.S. multijurisdictional disclosure system, under the applicable base shelf prospectus of the Filer filed in the jurisdictions of Canada in which it is a reporting issuer and pursuant to a registration statement filed with the SEC;
- the Goldcorp Notes are not convertible or exchangeable into Goldcorp Shares and are not listed on any stock exchange; the Goldcorp Notes trade through broker-dealer networks as over-the-counter secondary market transactions; all broker-dealers who are Financial Industry Regulatory Authority (FINRA) member firms have an obligation to report over-the-counter secondary market transactions in eligible fixed income securities to FINRA’s Trade Reporting and Compliance Engine (TRACE) under a set of rules approved by the SEC; after trades of the Goldcorp Notes are reported to TRACE, they also appear on FINRA’s BondFacts and Market Data platforms, which are both accessible to the public;
- on March 15, 2019, Newmont announced offers (the Exchange Offers) to holders of the Goldcorp Notes to exchange the Goldcorp Notes for (i) up to $2 billion aggregate principal amount of newly issued debt securities of Newmont (the Newmont Notes) and (ii) cash and the related consent solicitations (the Consent Solicitations) to adopt proposed amendments to the Indentures to eliminate certain covenants, restrictive provisions, events of default and related provisions from the Indentures;
- on April 16, 2019, the Filer and the Trustee entered into a third supplemental indenture to the Indentures, which among other things, removed the provision regarding the delivery by the Filer to the Trustee of certain annual and quarterly disclosure documents containing financial information; there is no obligation in the Indentures for the Filer to provide any continuous disclosure to holders of the Goldcorp Notes or maintain its status as a reporting issuer and no prohibition on ceasing to be a reporting issuer in any of the jurisdictions of Canada in which it is a reporting issuer;
- as of April 18, 2019, the following percentage of the aggregate principal amounts of each series of the Goldcorp Notes was not tendered and remained outstanding:
- 14.10% of the 3.625% Notes;
- 18.97% of the 3.700% Notes; and
- 1.41% of the 5.450% Notes;
- settlement of the Exchange Offers and the Consent Solicitations occurred on April 22, 2019 (the Settlement Date);
- as at May 28, 2019, other than the Goldcorp Shares, all of which are held by Newmont, and the Goldcorp Notes, the Goldcorp securities outstanding were as follows: 3,515,502 Options held by 71 holders, 1,261,774 Phantom RSUs held by 200 holders and 950,488 PSUs held by 24 holders;
- all of the Goldcorp Notes are held through the Depository Trust Company (DTC) in the name of Cede & Co.; in accordance with industry practice and custom, the Filer engaged: (i) Broadridge Investor Communication Solutions, Inc. (Broadridge) to prepare a geographical analysis report as to the beneficial holders of the Goldcorp Notes as of the Settlement Date (the Broadridge Report); and (ii) DTC to prepare a report as to the depository positions and total number of the Goldcorp Notes held as of the Settlement Date (the DTC Report);
- based on the information contained in the Broadridge Report (regarding the number of holders) and the DTC Report (regarding the number of Goldcorp Notes held), it is the Filer’s understanding that there are 1,140 holders holding $77,537,000 of the 3.625% Notes, 2,495 holders holding $189,724,000 of the 3.700% Notes and 93 holders holding $6,356,000 of the 5.450% Notes;
- it is the Filer’s understanding that, as at May 28, 2019, the Filer had 104 securityholders in Canada; this number is comprised of 10 holders of the Goldcorp Notes, 51 holders of Options, 23 holders of Phantom RSUs and 20 holders of PSUs;
- the Filer is not an OTC reporting issuer under Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets;
- the Filer has no intention to seek financing by way of an offering of its securities in Canada;
- other than as represented in this order, no securities of the Filer, including debt securities, are traded in Canada or another country on a marketplace as defined in National Instrument 21-101 Marketplace Operation or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported;
- the Filer is not in default of securities legislation in any jurisdictions other than (a) an obligation (arising after the Arrangement) to file on or before August 14, 2019, its interim financial statements and its management discussion and analysis in respect of such statements for the period ended June 30, 2019, as required under National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102) and related certificates as required under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109); and (b) an obligation (arising after the Arrangement) to file on or before May 15, 2019, its interim financial statements and its management discussion and analysis in respect of such statements for the period ended March 31, 2019, as required under NI 51-102 and related certificates as required under NI 52-109 (collectively, the Interim Filings);
- Newmont is not in default of securities legislation in any jurisdictions;
- the Filer is not eligible to file under the simplified procedure in section 19 of National Policy 11-206 Process for Cease to be a Reporting Issuer Applications because the Filer is in default for failure to file the Interim Filings, the Filer’s outstanding securities are beneficially owned, directly or indirectly, by more than 15 securityholders in the provinces of British Columbia and Ontario and by more than 51 securityholders in total worldwide, and the Goldcorp Notes are traded on a marketplace or facility for bringing together buyers and sellers of securities; and
- the Filer is applying for an order that it has ceased to be a reporting issuer in all of the jurisdictions of Canada in which it is currently a reporting issuer; the Filer, upon the grant of the Order Sought, will no longer be a reporting issuer in any jurisdiction of Canada.
¶4 Each of the Decision Makers is satisfied that the order meets the test set out in the Legislation for the Decision Maker to make the order.
The decision of the Decision Makers under the Legislation is that the Order Sought is granted.
Director, Corporate Finance
British Columbia Securities Commission