Exemption Orders (Discretionary)
ANGLOGOLD LIMITED
2001 BCSECCOM 1007
ORDER UNDER SECTIONS 76 AND 114(2)(c) OF THE SECURITIES ACT, R.S.B.C. 1996,
c. 418 AND SECTION 9.1 OF NATIONAL INSTRUMENT 43-101 STANDARDS OF DISCLOSURE FOR MINERAL PROJECTS
ANGLOGOLD LIMITED
[para 1]
Background
1. AngloGold Limited applied for an exemption from:
1.1 the prospectus requirements of section 61 of the Act for its securities exchange take over bid (Exchange Offer) for all of the outstanding shares, including shares represented by American depositary shares (Normandy ADSs) of Normandy Mining Limited (Normandy);
1.2 the take over bid requirements of sections 105 to 110 of the Act for the Exchange Offer; and
1.3 the requirements of NI 43-101 for the Exchange Offer;
[para 2]
Representations
2. AngloGold represents that:
2.1. it is incorporated under the laws of the Republic of South Africa;
2.2. it is a major international mining company and is the world’s largest gold producer by volume of gold produced (as determined from publicly available reports of gold producers of the world), with production of about 7 million ounces of gold annually;
2.3. it has open pit and underground mines and surface reclamation plants in Argentina, Australia, Brazil, Mali, Namibia, South Africa, Tanzania and the United States;
2.4. as at September 30, 2001, its share capital consisted of (i) 200,000,000 ordinary shares with a par value of R0.50 per share, of which 107,181,237 were outstanding, (ii) 2,000,000 A redeemable preference shares with a par value of R0.50 per share, of which 2,000,000 were outstanding, and (iii) 5,000,000 B redeemable preference shares with a par value of R0.01 per share, of which 778,896 were outstanding;
2.5. its ordinary shares are listed on the Australian Stock Exchange (ASX) as Clearing House Electronic Subregister System depositary interests (CDIs) under the symbol “AGG”, the London Stock Exchange under the symbol “79LK”, the New York Stock Exchange (NYSE) as American depositary shares (AngloGold ADSs) under the symbol “AU”, and Euronext Paris under the symbol “VAFP”, and are also quoted on Euronext Brussels as international depositary receipts under the symbol “ANG BB”;
2.6. it is subject to the reporting requirements of securities legislation in the Republic of South Africa, the United States, Australia and the United Kingdom and is not a reporting issuer in British Columbia or in any other province or territory in Canada;
2.7. it is required to comply fully with the Australasian Code for Reporting Identified Mineral Resources and Ore Reserves (the JORC Code) and is also regulated by the South African Code for Reporting of Mineral Resources and Mineral Reserves;
2.8. it does not currently own, directly or indirectly, any outstanding shares of Normandy or Normandy ADSs;
2.9. Normandy is incorporated under the laws of Australia and is a major international mining company;
2.10. as at September 20, 2001, Normandy had 2,231,293,599 shares (including Normandy ADSs, each Normandy ADS representing 10 shares) and 1,443,350 unlisted employee shares outstanding; to the best of AngloGold’s knowledge, the employee shares are of the same class as the shares;
2.11. Normandy’s shares are listed on the ASX under the symbol “NDY.AX” and the Normandy ADSs are listed on The Toronto Stock Exchange (TSE) under the symbol “NDY.TO”;
2.12. Normandy is a reporting issuer in Ontario but is not a reporting issuer in any other province or territory of Canada; Normandy is also subject to the reporting requirements of the securities laws of the United States and Australia:
2.13. based on information provided to it by Normandy from its register, as at October 2, 2001, there were nine holders of Normandy’s shares in British Columbia holding an aggregate of 47,340 shares (representing 0.00212% of the outstanding shares);
2.14. based on information from Canadian Depository For Securities Ltd. (CDS) and the participants that hold securities with CDS, as at September 28, 2001, there were 11 holders of Normandy ADSs in British Columbia holding an aggregate of 7,700 Normandy ADSs (representing 0.00345% of Normandy’s outstanding shares);
2.15. it has not received confirmation from one CDS participant that holds 192 Normandy ADSs (representing 0.00009% of Normandy’s outstanding shares) as to the number of holders of Normandy ADSs, and the number of Normandy ADSs they hold, in British Columbia, however it believes these amounts to be immaterial;
2.16. it will make the Exchange Offer in Australia in accordance with the corporate and federal securities laws of Australia, and in the United States in accordance with the federal securities laws of the United States, subject in the United States to the limited tender offer exemptive relief in Rule 14d-1(c) and Rule 14d-1(d) under the Securities Exchange Actof 1934, as amended (the Tier II Exemption);
2.17. it intends to rely on the Tier II Exemption since, to its best knowledge, U.S. holders of Normandy’s shares and Normandy ADSs hold more than 10% and less than 40% of such securities (counted together as a single class and excluding those shares and Normandy ADSs held by all other 10% holders of Normandy);
2.18. it will make the Exchange Offer to U.S. shareholders of Normandy by way of a United States Registration Statement; it may effect the Exchange Offer in the United States only if the U.S. Registration Statement is declared effective by the United States Securities and Exchange Commission;
2.19. it will issue 2.15 of its ordinary shares for every 100 shares of Normandy (including shares represented by Normandy ADSs) tendered in the Exchange Offer; holders of Normandy’s shares and Normandy ADSs may elect to receive the consideration for their securities, depending upon the country in which the shareholder is located at the time of accepting the Exchange Offer, in one of the following forms: (i) ordinary shares; (ii) CDIs; or (iii) AngloGold ADSs; whatever form of consideration the holders elect to receive, the consideration will be equivalent in value to 2.15 of AngloGold’s ordinary shares for every 100 shares of Normandy; Canadian holders of Normandy’s shares and Normandy ADSs will be eligible to elect to receive either ordinary shares or AngloGold ADSs;
2.20. it also intends to make available to Normandy shareholders who accept the Exchange Offer and are located in Australia, Canada, and possibly certain other jurisdictions excluding the United States and New Zealand, the right to subscribe for additional ordinary shares registered in the form of CDIs or AngloGold ADSs at a discount (the Top Up Facility); the right to participate in the Top Up Facility will not be transferable;
2.21. the minimum amount a Normandy shareholder can apply for under the Top Up Facility is A$2,500 and the maximum amount is A$5,000; this amount will be applied to acquire additional ordinary shares at a discount of 7.5% from the 30 day weighted average sale price of ordinary shares sold on the NYSE to the date that the ordinary shares are allotted and issued to the relevant Normandy shareholder pursuant to the Exchange Offer; in Canada, it is expected that the Top Up Facility will be offered and described in wrap pages to the U.S. Registration Statement (Wrap Pages);
2.22. it also intends that Deutsche Bank AG will establish a facility (the Low Brokerage Share Sale Facility) so that Normandy shareholders who are located in Australia and who accept the Exchange Offer can elect to: (i) sell, in the open market, the ordinary shares they receive pursuant to the Exchange Offer, and (ii) receive a cash payment in consideration for the sale of those ordinary shares; eligible Normandy shareholders who elect to use the Low Brokerage Share Sale Facility will receive a payment equivalent to the value of the ordinary shares sold by Deutsche Bank AG less a flat brokerage fee equivalent to 1% of the sale proceeds; persons located outside Australia are not eligible to participate in the Low Brokerage Share Sale Facility;
2.23. if it acquires 90% or more of Normandy’s shares (including shares represented by Normandy ADSs) under the Exchange Offer, it intends to compulsorily acquire the remaining outstanding shares (including shares represented by Normandy ADSs) pursuant to Australian corporate law and intends to cause Normandy to apply to the TSE to delist the Normandy ADSs from that exchange; if it gains control of Normandy but is not entitled to compulsorily acquire the remaining outstanding shares (including shares represented by Normandy ADSs), it currently intends to review whether the Normandy ADSs should continue to be listed on the TSE;
2.24. if the relief requested in this application is granted in order to permit the Exchange Offer to be made in British Columbia, holders of Normandy’s shares and Normandy ADSs who, to its best knowledge, have their last address shown on the books of Normandy in British Columbia, will receive all material relating to the Exchange Offer that is sent to holders of Normandy shares and Normandy ADSs in the United States; and
2.25. it cannot distribute its ordinary shares, CDIs, AngloGold ADSs or rights to participate in the Top Up Facility to holders of Normandy’s shares or Normandy ADSs resident in British Columbia under the prospectus exemption in section 74(2)(26) of the Act because the U.S. Registration Statement is not a “securities exchange take over bid circular” in form 62-902F under the Act;
[para 3]
Order
3. Because it is not prejudicial to the public interest, it is ordered:
3.1. under section 76 of the Act, that AngloGold is exempt from the requirements of section 61 of the Act in connection with the issuance of its ordinary shares, CDIs, AngloGold ADSs or rights to participate in the Top Up Facility under the Exchange Offer;
3.2. under section 76 of the Act, that a trade in ordinary shares, CDIs, AngloGold ADSs or rights to participate in the Top Up Facility acquired under this order is deemed to be a distribution unless the trade is made in accordance with BOR #72-501;
3.3. under section 114(2)(c) of the Act, that AngloGold is exempt from the requirements of sections 105 to 110 of the Act in connection with the Exchange Offer provided that:
- 3.1.1 all materials relating to the Exchange Offer that are sent to holders of Normandy’s shares and Normandy ADSs in the United States and the Wrap Pages (or some other form of offer and description of the Top Up Facility if the Wrap Pages are not used) are concurrently sent to all holders of Normandy’s shares and Normandy ADSs who, to AngloGold’s best knowledge, have their last address shown on the books of Normandy in British Columbia; and
3.4. under section 9.1 of NI 43-101, that AngloGold is exempt from the requirements of NI 43-101 in connection with the Exchange Offer provided that all disclosure of a scientific or technical nature contained in any materials which relate to the Exchange Offer that are sent to British Columbia holders of Normandy’s shares and Normandy ADSs complies with the requirements of applicable U.S. federal securities laws.
[para 4]
DATED October 16, 2001.
Brenda Leong
Director