Variation of cease trade order previously issued against certain directors, officers and other insiders of a reporting issuer in default of filings required under Ontario securities law -- previous management and insider cease trade order (the MCTO) issued in response to earlier application by the issuer to the Commission under OSC Policy 57-603 Defaults by Reporting Issuers in Complying with Financial Statement Filing Requirements (the MCTO Policy) requesting that an MCTO be issued as an alternative to an issuer cease trade order -- issuer remains in default but has filed default status reports on a biweekly basis in accordance with Part 3 of the MCTO Policy -- in accordance with the issuer's prior undertaking, the issuer has advised the Commission of recent changes to the issuer's officers and other insiders -- MCTO varied pursuant to section 144 to reflect additional respondents in the MCTO.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c.S.5, as am., ss. 6(3), 127 and 144.
OSC Policy 57-603 Defaults by Reporting Issuers in Complying with Financial Statement Filing Requirements.
June 10, 2005
IN THE MATTER OF
THE SECURITIES ACT, R.S.O. 1990,
c. S.5, AS AMENDED (the "Act")
IN THE MATTER OF
HUGH ALEXANDER AGRO, JOHN A. BROUGH, ROBERT M. BUCHAN, SCOTT A. CALDWELL, ARTHUR H. DITTO,
RICHARD S. HALLISEY, JOHN M.H. HUXLEY, JOHN A. KEYES, GEORGE F. MICHALS, CAMERON A. MINGAY,
TERENCE C.W. REID, JOHN E. OLIVER, JOHN W. IVANY, LARS-ERIC JOHANSSON, RODNEY A. COOPER, JERRY W.
DANNI, RICK BAKER, J. MICHAEL DOYLE, CHRISTOPHER T. HILL, ANDREW F. KACZMAREK, ALLAN D. SCHOENING,
RONALD W. STEWART, SHELLEY M. RILEY AND TYE BURT
(Paragraph 127(1)(2) and Section 144)
WHEREAS on April 14, 2005, a director of the Ontario Securities Commission (the "Director") made an order under paragraph 2 of subsection 127(1) of the Act as varied by an additional order dated May 16, 2005 (the "Kinross MCTO") that all trading by the Respondents in the securities of Kinross Gold Corporation ("Kinross") shall cease until two full business days following the receipt by the Commission of all filings Kinross is required to make under Ontario securities law, or further order of the Director;
AND WHEREAS Kinross has, in accordance with its undertaking dated March 17, 2005, advised the Commission that Michael Farrant ("Mr. Farrant") has been appointed as Vice-President, Treasurer and Mr. Hal Kirby ("Mr. Kirby") has been appointed Vice-President, Corporate Controller of Kinross, and accordingly Kinross now makes application (the "Variation Application") for a variation of the Kinross MCTO to include Messrs. Farrant and Kirby as additional Respondents;
AND UPON considering the Variation Application and the recommendations of the staff of the Commission ("Staff");
AND UPON Kinross having represented to the Commission that:
1. Kinross is a reporting issuer in Ontario.
2. Kinross has failed to file its December 31, 2004 audited financial statements and related management discussion and analysis and its Annual Information Form for the year ended December 31, 2004 by the required date under Ontario Securities law, namely March 31, 2005 and as of the date of this order, Kinross has not rectified these filing deficiencies.
3. Kinross has failed to file its interim unaudited financial statements and related management discussion and analysis for the period ended March 31, 2005 by the required date under Ontario securities law, namely, May 16, 2005.
4. On March 17, 2005, Kinross made an application (the "Application") under OSC Policy 57-603 Defaults by Reporting Issuers in Complying with Financial Statements Filing Requirements and CSA Staff Notice 57-301 Failing to File Financial Statements on Time-Management Cease Trade Orders requesting that a Management and Insider Cease Trade Order (as such term is defined in OSC Policy 57-603) be issued as an alternative to an Issuer Cease Trade Order (as such term is defined in OSC Policy 57-603).
5. On April 1, 2005, the Director made a temporary order (the "Temporary Order") under paragraph 2 of subsection 127(1) of the Act that the Respondents cease trading in any securities of Kinross for a period of 15 days from the date of the Temporary Order.
6. On April 14, 2005 after a hearing on the matter, the Director made the Kinross MCTO;
7. Since the date of its Application, Kinross has issued and filed Default Status Reports on a bi-weekly basis in accordance with Part 3 of OSC Policy 57-603.
8. On June 2, 2005 Mr. Farrant was appointed Vice-President, Treasurer and Mr. Kirby was appointed Vice-President, Corporate Controller of Kinross. Kinross believes that, as a result of their appointments, Messrs. Farrant and Kirby come within the definition of "Defaulting Management and Other Insiders" (as defined in OSC Policy 57-603) and accordingly should be named as additional respondents in the Kinross MCTO.
9. Kinross has in connection with the Variation Application filed written consents provided by Messrs. Farrant and Kirby relating to their inclusion as additional Respondents in the Kinross MCTO.
AND WHEREAS the Director is of the opinion that it is in the public interest to make this Order;
IT IS ORDERED under paragraph 2 of subsection 127(1) and section 144 of the Act that Messrs. Farrant and Kirby be added to the list of Respondents in the Kinross MCTO, and the Kinross MCTO be varied accordingly.