Securities Law & Instruments


Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – Exemption granted from the requirements in National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102) and National Instrument 71-101 The Multijurisdictional Disclosure System (NI 71-101) to include a reconciliation to Canadian GAAP of certain financial statements of Newmont Mining Corporation (Newmont) prepared in accordance with U.S. GAAP that are required to be included or incorporated by reference in the information circular to be sent to security holders of the Filer pursuant to a plan of arrangement (the Arrangement) involving the Filer and Newmont – Newmont has advised the Filer that it falls within the definition of an "SEC foreign issuer" in National Instrument 52-107 Acceptable Accounting Principles and Auditing Standards.

Applicable Legislative Provisions

Securities Act,R.S.O. 1990, c.S.5, as am.
National Instrument 51-102 Continuous Disclosure Obligations, s. 13.1.
National Instrument 52-107 , s. 5.1.
National Instrument 71-101 The Multijurisdictional Disclosure System, s. 21.1.

February 14, 2019

IN THE MATTER OF
THE SECURITIES LEGISLATION OF
BRITISH COLUMBIA AND ONTARIO
(the Jurisdictions)

AND

IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS
IN MULTIPLE JURISDICTIONS

AND

IN THE MATTER OF
GOLDCORP INC.
(the Filer)

DECISION

Background

1              The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) for an exemption from the requirements in National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102) and National Instrument 71-101 The Multijurisdictional Disclosure System (NI 71-101) to include a reconciliation to Canadian GAAP of certain financial statements of Newmont Mining Corporation (Newmont) prepared in accordance with U.S. GAAP (as defined below) that are required to be included or incorporated by reference in the information circular (Information Circular) to be sent to security holders of the Filer pursuant to a plan of arrangement (the Arrangement) involving the Filer and Newmont (the Exemption Sought).

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):

(a)           the British Columbia Securities Commission is the principal regulator for this application;

(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 Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Northwest Territories, Nunavut, and Yukon; and

(c)           this decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.

Interpretation

2              Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.

Representations

3              This decision is based on the following facts represented by the Filer:

The Filer

1.             the Filer is a corporation incorporated under the OBCA; the Filer's head office is located in Vancouver, British Columbia and its registered office is located in in Toronto, Ontario;

2.             the Filer is a reporting issuer in each of the provinces and territories of Canada and is not in default of its obligations as a reporting issuer under the securities legislation in any of the provinces or territories;

3.             the authorized capital of the Filer consists of an unlimited number of common shares (Goldcorp Shares); as at January 29, 2019, 867,551,731 Goldcorp Shares were issued and outstanding;

4.             the Goldcorp Shares are listed on the TSX and the New York Stock Exchange (NYSE); Newmont

5.             Newmont is a corporation existing under the laws of the State of Delaware; the head office of Newmont is located in Greenwood Village, Colorado and the registered office of Newmont is located in Wilmington, Delaware;

6.             Newmont is subject to the 1934 Act and is a reporting issuer in each of the provinces of Canada and is not in default of (a) its obligations as a reporting issuer under the securities legislation in any of the provinces or (b) its obligations under the 1934 Act or other applicable securities legislation in the United States;

7.             the authorized capital of Newmont consists of 750,000,000 shares of common stock (Newmont Shares) and 5,000,000 shares of preferred stock (Newmont Preferred Shares); as at January 14, 2019, there were 534,614,887 Newmont Shares issued and outstanding and no Newmont Preferred Shares issued or outstanding;

8.             the Newmont Shares are listed on the NYSE;

9.             Newmont currently files financial statements prepared in accordance with generally accepted accounting principles in the United States (U.S. GAAP) in accordance with the rules of the United States Securities and Exchange Commission;

The Arrangement

10.          on January 14, 2019, the Filer and Newmont entered into an arrangement agreement whereby Newmont agreed to acquire all of the issued and outstanding Goldcorp Shares pursuant to the Arrangement; following completion of the Arrangement, the Filer will be a wholly-owned subsidiary of Newmont;

11.          the Arrangement must be approved by a special resolution of the of holders of Goldcorp Shares (Goldcorp Shareholders) at a special meeting of the Goldcorp Shareholders; in connection therewith, the Filer will prepare and mail the Information Circular to the Goldcorp Shareholders which will contain, among other things, detailed information regarding the Arrangement and the business and operations of Newmont;

12.          pursuant to the form requirements for an information circular in NI 51-102 , the Information Circular must include disclosure about Newmont prescribed by the form of prospectus that Newmont would be eligible to use immediately prior to the sending and filing of the Information Circular;

13.          pursuant to section 3.1(c) of NI 71-101, Newmont is eligible to file a prospectus in the form of a MJDS prospectus prepared in accordance with the disclosure and other requirements of United States federal securities laws as it meets the eligibility criteria set forth in sections 3.1(c) and 3.1(a)(ii) to (v) of NI 71-101;

14.          in order for the Filer to provide the disclosure in the Information Circular in accordance with NI 71-101, the Information Circular must include the following financial statements (the Financial Statements): (i) historical financial statements of Newmont and (ii) pro forma financial statements of Newmont giving effect to the Arrangement; the Financial Statements have been prepared in accordance with U.S. GAAP;

15.          section 4.6 of NI 71-101 would require the Financial Statements to include a reconciliation to Canadian GAAP; and

16.          Newmont has advised the Filer that it falls within the definition of an SEC foreign issuer in NI 52-107 Acceptable Accounting Principles and Auditing Standards (NI 52-107) and, as such, relies on section 4.3 of NI 71-102 and section 3.7 of NI 52-107 to prepare the Financial Statements in satisfaction of its continuous disclosure obligations in Canada in accordance with U.S. GAAP without providing a reconciliation to Canadian GAAP.

Decision

4              Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.

The decision of the Decision Makers under the Legislation is that the Exemption Sought is granted.

“John Hinze”
Director, Corporate Finance
British Columbia Securities Commission