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Miramar Mining Corporation et al. - MRRS Decision
Headnote
Mutual Reliance Review System for ExemptiveRelief Applications. Relief from registration and prospectusrequirements relating to trades made in connection with an arrangement.First trade deemed a distribution unless made in accordancewith specified provisions of Multilateral Instrument 45-102Resale of Securities.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c. S.5, as am.,ss. 25, 53 and 74(1).
Applicable Multilateral Instrument
Multilateral Instrument 45-102 Resale of Securities,ss. 2.6 and 2.8.
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
SASKATCHEWAN, MANITOBA, ONTARIO,
QUÉBEC, NOVA SCOTIA, NEWFOUNDLAND AND LABRADOR, NEW BRUNSWICK,AND
PRINCE EDWARD ISLAND
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
MIRAMAR MINING CORPORATION
AND
IN THE MATTER OF
HOPE BAY GOLD CORPORATION INC.
AND
IN THE MATTER OF
ARIANE GOLD CORP.
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker") in eachof Saskatchewan, Manitoba, Ontario, Québec, Nova Scotia,Newfoundland and Labrador, New Brunswick, and Prince EdwardIsland (the "Jurisdictions") has received an applicationfrom Miramar Mining Corporation ("Miramar"), HopeBay Gold Corporation Inc. ("Hope Bay") and ArianeGold Corp. ("Ariane" and, together with Miramar andHope Bay, the "Filers") for a decision under the securitieslegislation of the Jurisdictions (the "Legislation")that the requirement to be registered to trade in a security(the "Registration Requirement") and to file and obtaina receipt for a preliminary prospectus and a prospectus (the"Prospectus Requirement") shall not apply to certaintrades in securities in connection with a transaction (the "Transaction")involving a distribution by Hope Bay to its shareholders ofAriane Special Warrants (as defined below) and the amalgamationof Hope Bay with a wholly-owned subsidiary of Miramar (the "Amalgamation");
AND WHEREAS under the Mutual RelianceReview System for Exemptive Relief Applications (the "System"),the Nova Scotia Securities Commission is the principal regulatorfor this application;
AND WHEREAS the Filers have representedto the Decision Makers that:
1. Miramar was incorporated under the CompanyAct (British Columbia) in 1983 and has its principal executiveoffice in North Vancouver, British Columbia;
2. Miramar's authorized capital is 500,000,000common shares without par value (the "Miramar Common Shares"),of which 63,709,804 Miramar Common Shares were outstanding asat April 4, 2002;
3. Miramar is a reporting issuer or the equivalentunder the securities legislation of each province and territoryof Canada; the Miramar Common Shares are listed for tradingon The Toronto Stock Exchange ("TSX");
4. 9114-6696 Québec Inc. ("MiramarQuébec") was incorporated under the Companies Act(Québec) (the "QCA") in 2002;
5. Miramar Québec's authorized capitalis an unlimited number of voting and participating Class A shares(the "Miramar Québec Shares"), of which one(1) Miramar Québec Share is currently outstanding andheld by Miramar;
6. Miramar Québec is not a reportingissuer or the equivalent in any jurisdiction in Canada; it wasincorporated for the sole purpose of effecting the Amalgamation;
7. Hope Bay was incorporated under the QCA in1993 and has its executive office in Longueuil, Québec;
8. Hope Bay's authorized capital is an unlimitednumber of common shares with one vote per share, without parvalue (the "Hope Bay Common Shares") and an unlimitednumber of Class "A" non-voting shares, without parvalue (the "Hope Bay Class A Shares"), of which 150,054,867Hope Bay Common Shares and no Hope Bay Class A Shares were outstandingas at April 4, 2002;
9. as at April 4, 2002, 16,519,667 Hope BayCommon Shares were reserved for issuance under outstanding stockoptions ("Hope Bay Options") and 8,950,000 Hope BayCommon Shares were reserved for issuance under outstanding warrants("Hope Bay Warrants");
10. Hope Bay is a reporting issuer or the equivalentunder the securities legislation of British Columbia, Alberta,Saskatchewan, Manitoba, Ontario, Québec, Nova Scotia,and Newfoundland and Labrador; the Hope Bay Common Shares arelisted for trading on the TSX;
11. Ariane was incorporated under the CanadaBusiness Corporations Act in 2002 and has its executive officein Longueuil, Québec;
12. Ariane's authorized capital is an unlimitednumber of common shares ("Ariane Common Shares") andan unlimited number of first preference shares, issuable inseries ("Ariane Preference Shares"); as at April 23,2002, no Ariane Common Shares and one (1) Ariane PreferenceShare was outstanding and held by Hope Bay;
13. prior to the implementation of the Transaction,Ariane will acquire from Hope Bay all of the outstanding sharesof a Barbados holding company that indirectly holds all of HopeBay's properties located in French Guiana (the "FrenchGuiana Assets"), in exchange for the issuance by Arianeto Hope Bay of special warrants (the "Ariane Special Warrants");each Ariane Special Warrant will entitle the holder to acquire,upon exercise and without any further consideration, one ArianeCommon Share;
14. Ariane Special Warrants will be distributedby Hope Bay to its shareholders (the "Distribution")as part of the Transaction; Ariane Special Warrants may alsobe provided by Ariane to certain holders of Hope Bay Warrantsunder the terms of the Transaction;
15. Ariane is not a reporting issuer or theequivalent in any jurisdiction in Canada, but intends to becomea reporting issuer by filing and obtaining receipts for a prospectusqualifying, among other things, the issuance of Ariane CommonShares upon the exercise of the Ariane Special Warrants (the"Prospectus");
16. on April 23, 2002 an interlocutory order("Interim Order") of the Superior Court of Québec(the "Court") was obtained in connection with theTransaction; the Interim Order provides for the calling andholding of an annual and special general meeting of the shareholdersof Hope Bay (the "Meeting"), to be held on May 21,2002; at the Meeting, Hope Bay will seek shareholder approvalfor the Distribution and Amalgamation;
17. in connection with the Meeting, Hope Baydelivered to its shareholders a management proxy circular (the"Proxy Circular") containing prospectus level disclosureof the Transaction and the business and affairs of each of Miramarand Ariane; Hope Bay will also, prior to the effective dateof the Transaction (the "Effective Date"), make theProxy Circular available to the holders of Hope Bay Optionsand Hope Bay Warrants;
18. the hearing for the final order of the Courtin respect of the Transaction is currently scheduled for May22, 2002 at which the Court will be asked to approve the fairnessof the entire Transaction, or the Amalgamation independent ofthe Distribution; the final order will form the basis for exemptionsfrom registration requirements under the United States SecuritiesAct of 1933 in respect of the distributions of Miramar CommonShares and Ariane Special Warrants to U.S. securityholders ofHope Bay;
19. the Ariane Special Warrants will automaticallybe exercised on the earlier of the receipt by Ariane of an MRRSDecision Document from the applicable Canadian securities regulatoryauthorities in respect of the Prospectus and December 31, 2002;
20. Miramar may choose to complete the Amalgamationwithout the Distribution being completed; Miramar currentlyintends, subject to the receipt of all necessary approvals,to effect the Amalgamation on the Effective Date regardlessof whether or not the Distribution has also been effected;
21. the primary purpose of the Amalgamationis to consolidate the ownership of the Hope Bay gold projectin Nunavut, which is currently operated as a joint venture betweenHope Bay and a subsidiary of Miramar, under one public company;
22. the Amalgamation will be effected underArticles of Amalgamation to be filed in accordance with provisionsof the QCA;
23. if both the Distribution and Amalgamationproceed, the following steps are expected to occur on the EffectiveDate (collectively, the "Trades"):
(a) Hope Bay will effect a reduction of itsissued and paid-up capital (without any payment to the HopeBay shareholders) under the QCA;
(b) Hope Bay will effect a further reductionof its issued and paid-up capital under the QCA, and will theneffect the Distribution;
(c) Ariane will redeem the one Ariane PreferenceShare currently held by Hope Bay;
(d) Hope Bay and Miramar Québec willamalgamate under the QCA and will continue as one corporation("Amalco") and:
(i) Hope Bay shareholders will receive MiramarCommon Shares in exchange for their Hope Bay Common Shares onthe basis of an exchange ratio agreed among the parties (the"Exchange Ratio");
(ii) as consideration for the issue of the MiramarCommon Shares to effect the Amalgamation, Amalco will issueto Miramar one common share of Amalco ("Amalco Common Share")for each Miramar Common Share issued under the Amalgamation;
(iii) the Miramar Québec Shares willbe exchanged for Amalco Common Shares on the basis of one AmalcoCommon Share for each Miramar Québec Share; and
(iv) Miramar will assume the outstanding HopeBay Options and the outstanding Hope Bay Warrants, and holdersof Hope Bay Options and Hope Bay Warrants will become entitled,upon exercise, to acquire Miramar Common Shares on the basisof the Exchange Ratio; holders of certain Hope Bay Warrantswill also be entitled to receive, upon exercise of their HopeBay Warrants, either Ariane Special Warrants or Ariane CommonShares, as disclosed in the Proxy Circular; and
(e) the property and assets of each of HopeBay and Miramar Québec will become the property and assetsof Amalco, and Amalco will be liable for all of the liabilitiesand obligations of each of Hope Bay and Miramar Québec;
24. immediately after the Transaction, Amalcowill be a wholly-owned subsidiary of Miramar; the current shareholdersof Hope Bay will directly own, in aggregate, approximately 37%of the outstanding Miramar Common Shares and Ariane SpecialWarrants convertible into approximately 88% of the outstandingAriane Common Shares; the remaining Ariane Common Shares willbe held by founders of Ariane, as disclosed in the Proxy Circular;
25. the TSX has conditionally approved the listingof the Miramar Common Shares issuable under the Transaction,subject to Miramar fulfilling customary requirements of theTSX;
26. Miramar intends to have Amalco cease tobe a reporting issuer in the applicable Jurisdictions shortlyafter the Effective Date;
27. there are no exemptions from the RegistrationRequirement and the Prospectus Requirement in the Legislationof certain of the Jurisdictions in respect of certain of theTrades or in respect of the issuance by Miramar of Miramar CommonShares or the issuance by Ariane of Ariane Special Warrantsor Ariane Common Shares upon the exercise of outstanding HopeBay Options and Hope Bay Warrants that have been assumed byMiramar (collectively with the Trades, the "TransactionTrades");
28. the fundamental investment decision to bemade by a holder of Hope Bay Common Shares will be made at thetime such holder votes the holder's Hope Bay Common Shares inrespect of the Distribution and the Amalgamation; such decisionwill be based on prospectus level disclosure respecting theDistribution and the Amalgamation and each of Miramar and Ariane;the Proxy Circular containing prospectus level disclosure willalso be made available to the holders of Hope Bay Options andHope Bay Warrants;
AND WHEREAS under the System, this MRRSDecision Document evidences the decision of each Decision Maker(collectively, the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Maker with the jurisdiction to make theDecision has been met;
THE DECISION of the Decision Makers underthe Legislation is that the Registration Requirement and theProspectus Requirement shall not apply to the Transaction Trades,provided that the first trade in Ariane Special Warrants, ArianeCommon Shares and Miramar Common Shares acquired under thisDecision in a Jurisdiction shall be deemed to be a distributionor primary distribution to the public under the Legislationof such Jurisdiction unless:
(a) except in Québec, the conditionsin subsection (3) or (4) of section 2.6 or subsection (2) or(3) of section 2.8 of Multilateral Instrument 45-102 Resaleof Securities are satisfied, and, for the purposes of determiningthe period of time that Ariane has been a reporting issuer undersections 2.6 and 2.8, the period of time that Hope Bay was areporting issuer may be included; and
(b) in Québec,
(i) the issuer of the securities is and hasbeen a reporting issuer in Québec for the 12 months immediatelypreceding the trade and has complied with the applicable requirementsduring that period,
(ii) no unusual effort is made to prepare themarket or to create a demand for the securities that are thesubject of the trade,
(iii) no extraordinary commission or considerationis paid to a person or company in respect of the trade, and
(iv) if the selling shareholder is an insideror officer of the issuer, the selling shareholder has no reasonablegrounds to believe that the issuer is in default of securitieslegislation.
May 23, 2002.
"H. Leslie O'Brien"