HeadnoteMutualReliance Review System for Exemptive Relief Applications - Take-overbid made in accordance with the laws of the United States andAustralia - De minimis exemption unavailable either becausemore than 2% of the outstanding target securities are held byresidents of a Jurisdiction or because offer will be made pursuantto exemption in the United States - Approximately 5% of issuer'sshares held by a single Ontario shareholder - Take-over bid exemptedfrom the take-over bid requirements of Part XX, subject to certainconditions including provision of U.S. registration statementto Ontario shareholders. Offering materials exempt from NationalInstrument 43-101 based upon compliance with U.S. mineral projectdisclosure standards.
ApplicableOntario StatuteSecuritiesAct, R.S.O. 1990, c. S.5, as amended, ss. 93(1)(e), 95 to100,and 104(2)(c).
ApplicableOntario Recognition OrderIn theMatter of the Recognition of Certain Jurisdictions (Clauses 93(1)(e)and 93(3((h) of Act) (1997) 20 OSCB 1035.
RuleCitedNationalInstrument 43-101 - Standards of Disclosure for Mineral Projects,ss. 9.1(1).
INTHE MATTER OF
THESECURITIES LEGISLATION OF
BRITISHCOLUMBIA, ALBERTA, SASKATCHEWAN, MANITOBA, ONTARIO,
NEWBRUNSWICK, NEWFOUNDLAND AND LABRADOR AND NOVA SCOTIA
INTHE MATTER OF
THEMUTUAL RELIANCE REVIEW
SYSTEMFOR EXEMPTIVE RELIEF APPLICATIONS
INTHE MATTER OF
ANDDELTA ACQUISITION LLC
WHEREASthe local securities regulatory authority or regulator (the"Decision Maker") in each of the Provincesof British Columbia, Alberta, Saskatchewan, Manitoba, Ontario,Nova Scotia, Newfoundland and Labrador and New Brunswick (the"Jurisdictions") have received an applicationfrom Newmont Mining Corporation ("Newmont")and its affiliate, Delta Acquisition LLC ("Delta")for a decision pursuant to:
(a) the securities legislation of the Jurisdictions (the "Legislation")exempting the Newmont Offer (as defined below) from the requirementsin the Legislation of the Jurisdictions relating to take-overbids except for the requirement to file a report of a take-overbid and pay the applicable fee (the "Take-over Bid Requirements");and
(b) section 9.1(1) of National Instrument 43-101 - Standardsof Disclosure for Mineral Projects ("NI 43-101")for an exemption from the requirements of NI 43-101;
inconnection with an offer, as it may be amended from time totime, (the "Newmont Offer") to be made by Deltaand Newmont to acquire all of the outstanding ordinary shares("Normandy Shares", (including Normandy Sharesrepresented by American Depository Shares ("NormandyADSs")) of Normandy Mining Limited, a corporation incorporatedunder the laws of Australia ("Normandy"), inconsideration for 0.0385 shares of common stock of Newmont ("NewmontShares") for each Normandy Share, plus A$0.50 per NormandyShare;
ANDWHEREAS under the Mutual Reliance Review System forExemptive Relief Applications (the "System"),the Ontario Securities Commission (the "Commission")is the principal regulator for this Application;
ANDWHEREAS Newmont has represented to the Decision Makersthat:
1.The Newmont Offer will be made in compliance with applicablesecurities laws of the United States and Australia in an offerthat will use two different offer documents so as to complywith those securities laws.
2.Newmont wishes to provide all holders of Normandy Shares andNormandy ADSs with the opportunity to participate in the NewmontOffer, which will be outlined in a bidder's statement and aprospectus contained in a registration statement on Form S-4(the "U.S. Registration Statement").
3.Newmont is incorporated under the laws of the State of Delaware.Newmont is engaged in the production of gold, the explorationfor gold and the acquisition and development of gold propertiesworldwide. Newmont has operations in Canada, United States,Mexico, Peru, Bolivia, Australia, Mexico and Uzbekistan.
4.Newmont's corporate headquarters are in Denver, Colorado.
5.As at November 14, 2001, Newmont's share capital consisted of(i) 250,000,000 Newmont Shares, of which 196,087,962 were outstanding;and (ii) 5,000,000 shares of convertible preferred stock, ofwhich 2,299,980 were outstanding.
6.The Newmont Shares are listed and trade principally on the NewYork Stock Exchange under the symbol "NEM" and are also listedon the Brussels Stock Exchange and the Swiss Stock Exchange.
7.Newmont is subject to the reporting requirements of securitieslegislation in the United States. Newmont is currently a reportingissuer or its equivalent in British Columbia, Alberta, Saskatchewan,Manitoba and Québec.
8.As of the date hereof, Newmont does not own directly or indirectlyany outstanding Normandy Shares (including Normandy Shares representedby Normandy ADSs). Newmont has the right to acquire the 111,525,000Normandy Shares (representing an aggregate of approximately4.99% of the Outstanding Normandy Shares) currently owned byFranco-Nevada Mining Corporation Limited ("Franco-Nevada"),an Ontario-headquartered public company listed on the TSE, andthe 334,575,000 Normandy Shares (representing approximately14.99% of the Outstanding Normandy Shares) owned by one of Franco-Nevada'sU.S. subsidiaries.
9.Normandy is incorporated under the laws of Australia. Normandyis a major international mining company.
10.As at October 18, 2001, Normandy's issued and outstanding sharecapital consisted of 2,231,293,599 Normandy Shares (inclusiveof Normandy ADSs, each Normandy ADS representing 10 NormandyShares) and 2,943,850 unlisted employee shares under the NormandyEmployee Share Investment Plan (collectively, the "OutstandingNormandy Shares"). To the best knowledge of Newmont,the employee shares are of the same class as the Normandy Shares.Normandy also had, as at October 18, 2001, 24,550,907 optionsover unissued Normandy Shares issued under the Normandy ExecutiveShare Incentive Plan and the Normandy Employee Share Bonus Plan.
11.The Normandy Shares are listed on the Australian Stock Exchangeand the Normandy ADSs are listed on The Toronto Stock Exchange(the "TSE").
12.Normandy is a reporting issuer in Ontario but is not a reportingissuer in any other province or territory of Canada. Normandyis also subject to the reporting requirements of the securitieslaws of the United States and Australia.
13.Based on information provided by Normandy, as at September 25,2001, there were:
(a) 21 holders of Normandy Shares in the Province of Ontarioholding an aggregate of 13,493,657 Normandy Shares (representingan aggregate of approximately 0.06% of the Outstanding NormandyShares), exclusive of the Normandy Shares held by Franco-Nevada;
(b) five holders of Normandy Shares in the Province of Québecholding an aggregate of 27,995,570 Normandy Shares (representingan aggregate of approximately 1.25% of the Outstanding NormandyShares);
(c) ten holders of Normandy Shares in the Province of BritishColumbia holding an aggregate of 51,300 Normandy Shares (representingan aggregate of approximately 0.0023% of the Outstanding NormandyShares); and
(d) three holders of Normandy Shares in the Province of Albertaholding an aggregate of 25,000 Normandy Shares (representingan aggregate of approximately 0.0011% of the Outstanding NormandyShares).
14.Based on information provided by Normandy, as at September 25,2001, there were:
(a) 29 holders of Normandy ADSs in the Province of Ontario holdingan aggregate of 5,501 Normandy ADSs (representing a negligiblepercentage of the Outstanding Normandy Shares); and
(b) one holder of Normandy ADSs in the Province of Québecholding an aggregate of 465 Normandy ADSs (representing a negligiblepercentage of the Outstanding Normandy Shares).
15.Accordingly, based upon the information in paragraph 8 and thepreceding two paragraphs, in the Province of Ontario there were22 holders of Normandy Shares holding an aggregate of 112,018,657Normandy Shares (representing an aggregate of 5.0203459% ofthe Outstanding Normandy Shares). One of those shareholders,Franco-Nevada, holds 111,525,000 Normandy Shares in Ontario(representing an aggregate of approximately 4.99% of the OutstandingNormandy Shares) and the other 21 holders hold in the aggregate13,493,657 Normandy Shares in Ontario (representing an aggregateof approximately 0.06% of the Outstanding Normandy Shares).Similarly, there were 30 holders of Normandy ADSs (29 in Ontarioand one in Québec) who hold an aggregate of 5,966 NormandyADSs (representing a negligible percentage of the OutstandingNormandy Shares). Based on the information in the precedingtwo paragraphs, in the Jurisdictions other than Ontario, thereare in aggregate 18 holders of Normandy Shares holding an aggregateof 28,071,870 Normandy Shares (representing an aggregate ofapproximately 1.258% of the Outstanding Normandy Shares) andone holder of Normandy ADSs holding an aggregate of 465 NormandyADSs (representing a negligible percentage of the OutstandingNormandy Shares). In each of these other Jurisdictions, thereare fewer than 50 holders of Normandy Shares and/or NormandyADSs representing, in aggregate, significantly less than 2%of the Outstanding Normandy Shares.
16.The Newmont Offer will be made in Australia in accordance withthe corporate and federal securities laws of Australia and inthe United States in accordance with the federal securitieslaws of the United States, subject in the United States to limitedtender offer exemptive relief available to Newmont (the "TierII Exemption"). The Tier II Exemption for tender offersis codified in Rule 14d-1(c) and Rule 14d-1(d) under the SecuritiesExchange Act of 1934, as amended. Newmont intends to relyon the Tier II Exemption since, to Newmont's best knowledge,U.S. holders of Normandy Shares and Normandy ADSs hold morethan 10% and less than 40% of those securities (counted togetheras a single class and excluding those Normandy Shares and NormandyADSs held by all other 10% holders of Normandy).
17.The Newmont Offer will be made to U.S. holders of Normandy Sharesand Normandy ADSs by way of the U.S. Registration Statement.Newmont may complete the Newmont Offer in the United Statesonly if the Securities and Exchange Commission of the UnitedStates of America (the "SEC") declares theU.S. Registration Statement effective. It is expected that theU.S. Registration Statement will be declared effective duringthe week of January 14, 2002.
18.Newmont complies with the guidelines published by the Societyfor Mining, Metallurgy and Exploration, Inc. in its "Guide forReporting Exploration Information, Mineral Resources and MineralReserves" dated March 1, 1999 (the "SME Guidelines").Compliance with the SME Guidelines necessarily results in compliancewith the general guidelines promulgated by the SEC in its Guide7. The disclosure regime promulgated by the SME Guidelines,including the methods of calculating reserves and resources,are in all material respects similar to those of both NI 43-101and the Australasian Code for Reporting of Mineral Resourcesand Ore Reserves.
19.The Newmont Offer will be made to Canadian holders of NormandyShares and Normandy ADSs on the same basis, including extendingto those holders identical rights and identical consideration,as to the holders of Normandy Shares and Normandy ADSs residentin the United States.
20.If the Newmont Offer is completed and Newmont acquires 90% ormore of the Normandy Shares (including Normandy Shares representedby Normandy ADSs), Newmont intends to compulsorily acquire theremaining outstanding Normandy Shares (including Normandy Sharesrepresented by Normandy ADSs) pursuant to Australian corporatelaw and intends to cause Normandy to make application to theCommission for Normandy to cease to be a reporting issuer inthe Province of Ontario and to the TSE to delist the NormandyADSs from that exchange. If Newmont gains control of Normandybut is not entitled to compulsorily acquire the outstandingNormandy Shares (including Normandy Shares represented by NormandyADSs), Newmont currently intends to review whether the NormandyADSs should continue to be listed on the TSE.
ANDWHEREAS under the System, this MRRS Decision Documentevidences the decision of each Decision Maker (collectively,the "Decision");
ANDWHEREAS each of the Decision Makers is satisfied thatthe test contained in the Legislation that provides the DecisionMaker with the jurisdiction to make the Decision has been met;
THEDECISION of the Decision Makers pursuant to the Legislationis that the Newmont Offer shall be exempt from the Take-overBid Requirements, provided that:
(a) all materials (the "Newmont Offer Materials")relating to the Newmont Offer that are sent by Newmont and Deltato holders of Normandy Shares (including Normandy Shares representedby Normandy ADSs) in the United States are concurrently sentto all holders of Normandy Shares (including Normandy Sharesrepresented by Normandy ADSs) who, to Newmont's best knowledge,have their last address shown on the books of Normandy in Canada;and
(b) Newmont files copies of the Newmont Offer Materials withthe Decision Makers.
"HowardI. Wetston" "R. Stephen Paddon"
ANDTHE FURTHER DECISION of the Decision Makers pursuantto section 9.1(1) of NI 43-101 is that Newmont and Delta shallbe exempt from the requirements of NI 43-101 in connection withthe Newmont Offer Materials, provided that all disclosure ofa scientific or technical nature contained in the Newmont OfferMaterials comply with requirements of applicable United Statesfederal securities laws.