Relief from the formal valuation requirement in connection with a business combination pursuant to Multilateral Instrument 61-101 Protection of Minority Security Holders in Special Transactions -- issuer and related party purchaser negotiated terms of the acquisition of the issuer -- involvement of related party brings transaction within the definition of a business combination under MI 61-101-- related party did not have any special information or degree of influence over the issuer -- exemptive relief from formal valuation requirements granted, subject to two conditions: first, the Transaction is not a business combination by virtue of paragraphs (e)(ii) or (e)(iii) of the definition of "business combination" in MI 61-101; and second, the management information circular to be mailed to Comaplex securityholders in connection with the Transaction, (i) discloses that the related party purchaser does not have, or has not had within the preceding 12 months, any board or management representation in respect of the issuer, (ii) identifies and discloses any material information concerning the issuer or its Shares which the related party purchaser may have knowledge of that has not been generally disclosed, and (iii) discloses that the related party purchaser has read the circular and agrees that it identifies and discloses the information required by (ii) above.
Applicable Legislative Provisions
Multilateral Instrument 61-101 Protection of Minority Security Holders in Special Transactions, s. 9.1.
IN THE MATTER OF
THE SECURITIES LEGISLATION
IN THE MATTER OF THE ACQUISITION OF
COMAPLEX MINERALS CORP. BY
AGNICO-EAGLE MINES LIMITED
1. UPON the joint application (the "Application") of Comaplex Minerals Corp. ("Comaplex") and Agnico-Eagle Mines Limited ("Agnico") to the Director for an order pursuant to Section 9.1 of Multilateral Instrument 61-101 - Protection of Minority Security Holders in Special Transactions ("MI 61-101"), exempting Comaplex from the requirement to obtain a formal valuation in connection with the business combination involving Comaplex and Agnico;
2. AND UPON considering the Application and the recommendation of the staff of the Commission;
3. AND UPON Comaplex and Agnico having represented to the Director as follows:
(a) Comaplex is a corporation existing under the Business Corporations Act (Alberta). The head, principal and registered office of Comaplex is located at 901, 1015 -- 4th Street S.W., Calgary, Alberta T2R 1J4.
(b) Comaplex is a reporting issuer in British Columbia, Alberta, Saskatchewan and Ontario. Comaplex is not in default of any requirement of securities legislation applicable to it.
(c) The authorized share capital of Comaplex consists of an unlimited number of common shares ("Shares"), of which 72,715,031 were outstanding as of March 25, 2010.
(d) The Shares are listed and posted for trading on the Toronto Stock Exchange (the "TSX") under the symbol "CMF".
(e) Agnico is a corporation existing under the Business Corporations Act (Ontario). The principal office of Agnico is located at 145 King Street East, Suite 400, Toronto, Ontario M5C 2Y7.
(f) Agnico is a reporting issuer in each of the provinces of Canada. Agnico is not in default of any requirement of securities legislation applicable to it.
(g) The common shares of Agnico are listed and posted for trading on the TSX and the New York Stock Exchange under the symbol "AEM".
(h) The authorized share capital of Agnico consists of an unlimited number of common shares, of which 156,625,174 were outstanding as of December 31, 2009.
(i) As of the date hereof, Agnico owns and controls 9,091,771 Shares, representing approximately 12.7% of the outstanding Shares. Agnico first acquired a small interest in Comaplex through market purchases commencing in February 2007 and Agnico has held the 9,091,770 Shares since August 2009.
(j) On April 1, 2010, Agnico entered into an agreement with Comaplex (the "Letter of Intent") to negotiate on an exclusive basis a transaction whereby Agnico will acquire all of the Shares that it does not already own pursuant to a court-approved plan of arrangement (the "Transaction"). The signing of the Letter of Intent by the Applicants was announced by a joint press release on April 1, 2010.
(k) Prior to the execution of the Letter of Intent, on March 26, 2010, Comaplex and Agnico entered into a mutual confidentiality agreement (the "Confidentiality Agreement") pursuant to which Agnico gained access to due diligence materials of Comaplex and vice versa. Agnico was required to enter into the Confidentiality Agreement to gain access to the due diligence materials of Comaplex necessary to assess the merits of proceeding with the Transaction.
(l) Comaplex entered into a number of confidentiality agreements with interested parties pursuant to which Comaplex provided non-public information to such parties in contemplation of a change of control transaction in respect of Comaplex. Such parties were offered access to the same information that Agnico received under the Confidentiality Agreement.
(m) Concurrently with the execution of the Letter of Intent, on April 1, 2010, Agnico and Perfora Investments S.a.r.l. ("Perfora") entered into a support agreement whereby Perfora agreed to vote its Shares representing 17.3% of the outstanding Shares in favour of the Transaction at a meeting of Comaplex shareholders called for the purpose of voting on the Transaction.
(n) Concurrent with entering into the definitive agreement giving effect to the Transaction, Agnico also intends to enter into support agreements with each of the directors and officers of Comaplex, which are anticipated to represent approximately 8.4% of the outstanding Shares (on a fully diluted basis).
(o) The Transaction contemplates the spin-out of certain assets of Comaplex that are not related to its Meliadine property into a newly formed, wholly owned subsidiary of Comaplex ("New Comaplex"). In exchange for each Share, shareholders of Comaplex, other than Agnico, will receive 0.1576 of a common share of Agnico, and shareholders other than Agnico and Perfora will also receive one share of New Comaplex.
(p) The Transaction is conditional, inter alia, on satisfactory due diligence by Agnico and the receipt by Comaplex of a fairness opinion in respect of the Transaction.
(q) Under MI 61-101, the Transaction would be a "business combination" as Agnico, a related party of Comaplex (by virtue of owning more than 10% of the outstanding Shares), would acquire Comaplex. As a result, section 4.3 of MI 61-101 would require that Comaplex obtain a formal valuation of the Shares and minority approval in connection with the Transaction.
(r) There is no exemption available in MI 61-101 that would provide an exemption from the formal valuation requirement in these circumstances.
(s) The interest of Agnico in Comaplex and its status as an "insider" has not resulted in Agnico being provided with any special information or obtaining any degree of influence over the business and operations of Comaplex.
(t) Except pursuant to the Confidentiality Agreement, Agnico has not gained any knowledge of, or influence over, the business or operations of Comaplex.
(u) Agnico and Comaplex have at all times acted on an arm's length basis.
(v) Agnico has never had any board or management representation at Comaplex, nor have any of its directors, officers or employees ever had a relationship with Comaplex, any of its subsidiaries, or any of its directors, officers or employees.
4. AND UPON the Director being satisfied that to do so would not be prejudicial to the public interest;
5. IT IS ORDERED pursuant to section 9.1 of MI 61-101 that the business combination involving Comaplex and Agnico is exempt from the formal valuation requirement under MI 61-101, provided that:
(a) the Transaction is not a business combination by virtue of paragraphs (e)(ii) or (e)(iii) of the definition of "business combination" in MI 61-101; and
(b) the management information circular to be mailed to Comaplex securityholders in connection with the Transaction (the "Circular"):
(i) discloses that Agnico does not have, or has not had within the preceding 12 months, any board or management representation in respect of Comaplex;
(ii) identifies and discloses any material information concerning Comaplex or its Shares which Agnico may have knowledge of that has not been generally disclosed; and
(iii) discloses that Agnico has read the Circular and agrees that it identifies and discloses the information required by (ii) above.
DATED at Toronto this 28th day of April, 2010.