National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- exemption granted relief from requirement in NI 44-101 to incorporate by reference into a short form prospectus the Non-Incorporated Exhibits (as defined in the Decision) -- Non-Incorporated Exhibits typically lengthy and incorporation by reference would therefore impose a disproportionately burdensome translation obligation of the Issuer -- the terms of any Non-Incorporated Exhibit that constitute a material fact in respect of the Issuer are or will be set out in one or more of the Issuer's continuous disclosure documents that will be incorporated by reference into a short form prospectus of the Issuer.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am.
August 2, 2013
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
AGNICO EAGLE MINES LIMITED
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the "Legislation") for an exemption (the "Exemption Sought") from the requirement under sections 11.1(1)1 and 11.2 of Form 44-101F1 -- Short Form Prospectus ("Form 44-101F1") to include in the documents incorporated by reference in any short form prospectus of the Filer the following documents attached or incorporated by reference as exhibits to an Annual Report on Form 20-F of the Filer or an amendment thereto (collectively, a "Form 20-F") that is incorporated by reference in such short form prospectus (collectively, the "Non-Incorporated Exhibits"):
(a) material contracts and agreements, and any amendments thereto;
(b) articles and by-laws of the Filer, and any amendments thereto;
(c) instruments defining the rights of security holders and holders of long-term debt of the Filer or any subsidiary, and any amendments thereto;
(d) indentures and supplemental indentures, and any amendments thereto;
(e) voting trust agreements, and any amendments thereto;
(f) management contracts or compensatory plans, contracts or arrangements in which directors or members of management participate, including stock option plans and other award or incentive plans, and any amendments thereto;
(g) statements regarding the calculation of earnings per share or other ratios included in the Form 20-F;
(h) lists of the Filer's subsidiaries;
(i) codes of ethics, and any amendments thereto;
(j) the certifications required under (i) Rule 13a-14(a) or 15d-14(a) of the Exchange Act and (ii) Rule 13a-14(b) or 15d-14(b) and Section 1350, Chapter 63, Title 18 of the United States Code (Section 906 of the Sarbanes-Oxley Act of 2002);
(k) opinions and consents of: (i) legal counsel; (ii) independent registered public accountants; and (iii) other experts or "qualified persons";
(l) annual mine safety reports, and any amendments thereto; and
(m) financial and related information of the Filer formatted in XBRL (Extensible Business Reporting Language).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application; and
(b) the Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 -- Passport System ("MI 11-102") is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland & Labrador.
Terms defined in National Instrument 14-101 -- Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
1. The Filer is a corporation existing under the Business Corporations Act (Ontario).
2. The Filer's head office is located at 145 King Street East, Suite 400, Toronto, Ontario M5C 2Y7.
3. The Filer is a reporting issuer in each of the provinces of Canada and is not in default of securities legislation in any jurisdiction.
4. The common shares of the Filer are listed and posted for trading on the Toronto Stock Exchange and the New York Stock Exchange under the symbol "AEM".
5. The Filer has filed a preliminary short form base shelf prospectus dated June 28, 2013 and intends to file a final short form base shelf prospectus (the "Final Prospectus") with the securities regulatory authority or regulator in each province of Canada, and a Registration Statement on Form F-10 with the United States Securities and Exchange Commission (the "SEC") pursuant to the multijurisdictional disclosure system adopted by the SEC, providing for the issuance, from time to time during the 25-month period following the date of the Final Prospectus, of debt securities, common shares and warrants, up to a total value of US$500,000,000.
6. The Filer is an "SEC issuer" (as defined in National Instrument 51-102 -- Continuous Disclosure Obligations ("NI 51-102")).
7. The Filer files its annual information form in the form of Form 20-F, prepared under the United StatesSecurities Exchange Act of 1934, as amended (the "Exchange Act"), as permitted by NI 51-102.
8. The Filer has filed on SEDAR the Non-Incorporated Exhibits attached to or incorporated by reference in its Form 20-F for the year ended December 31, 2012, and will file on SEDAR any Non-Incorporated Exhibits attached to or incorporated by reference in a subsequent Form 20-F of the Filer, other than previously filed Non-Incorporated Exhibits, as soon as practicable following the filing of such disclosure documents with the SEC and, in any event, prior to the filing of any subsequent short form prospectus or prospectus supplement of the Filer on SEDAR.
9. The Filer is in compliance with the requirements of the Exchange Act and the United States Securities Act of 1933, as amended.
10. Pursuant to the Exchange Act requirements, the Non-Incorporated Exhibits are attached or incorporated by reference as exhibits to a Form 20-F.
11. As the Non-Incorporated Exhibits are attached or incorporated by reference as exhibits to a Form 20-F of the Filer that is or will be incorporated by reference in the Final Prospectus or a subsequently filed short form prospectus of the Filer, such Non-Incorporated Exhibits are or will be incorporated by reference in the Final Prospectus or such subsequently filed short form prospectus pursuant to the requirements of sections 11.1(1)1 and 11.2 of Form 44-101F1 absent the granting of the Exemption Sought.
12. If the Filer filed an annual information form pursuant to Form 51-102F2 -- Annual Information Form (an "Annual Information Form") rather than a Form 20-F, none of the Non-Incorporated Exhibits would be required to be incorporated by reference into the Final Prospectus or any subsequent short form prospectus of the Filer, as the Exchange Act requirement to attach the Non-Incorporated Exhibits to a Form 20-F has no equivalent in Canadian securities law.
13. The terms of any Non-Incorporated Exhibit that constitute a material fact in respect of the Filer are or will be set out in one or more of the Filer's continuous disclosure documents that will be incorporated by reference into the Final Prospectus or a subsequently filed short form prospectus of the Filer.
14. Absent the granting of the Exemption Sought, the Filer would be required under Section 40.1 of the Securities Act (Quebec) to translate into French each of the Non-Incorporated Exhibits. This translation obligation would impose significant costs and delay, which the Filer would not be required to incur if it filed an Annual Information Form rather than a Form 20-F.
15. The Filer's application for the Exemption Sought was prompted by the publication of Multilateral CSA Staff Notice 51-328 -- Continuous Disclosure and Prospectus Requirements Relating to Documents Prepared under the U.S. Securities and Exchange Act of 1934 dated March 7, 2013, which set out staff's position that exhibits to a Form 20-F filed as an annual information form are incorporated by reference into a short form prospectus for the purposes of Canadian securities laws and therefore are subject to the translation requirement under section 40.1 of the Securities Act (Quebec).
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Exemption Sought is granted, provided that:
(a) the Filer complies with all of the other applicable requirements of National Instrument 44-101 -- Short Form Prospectus Distributions and, if applicable, National Instrument 44-102 -- Shelf Distributions, in respect of the Final Prospectus and any subsequent short form prospectus (except as varied by this Decision);
(b) the Filer discloses in the Final Prospectus and any subsequent short form prospectus that it has obtained exemptive relief from the requirement to incorporate by reference in such prospectus the Non-Incorporated Exhibits, and includes a statement identifying this decision and explaining how a copy of this decision can be obtained;
(c) the Filer remains an "SEC issuer" (as defined in NI 51-102);
(d) the Filer files its Form 20-F on SEDAR concurrently with or as soon as practicable after the filing of such Form 20-F with the SEC; and
(e) the Filer files on SEDAR the Non-Incorporated Exhibits attached to or incorporated by reference in any Form 20-F of the Filer, other than previously filed Non-Incorporated Exhibits, as soon as practicable following the filing of such disclosure documents with the SEC and, in any event, prior to the filing of any subsequent short form prospectus or prospectus supplement of the Filer on SEDAR.