Response from OSC
posted on
Aug 05, 2008 12:03PM
The company whose shareholders were better than its management
This is the letter I got from the OSC regarding the complaint I made. Standard letter with the usual "covers".....
Dear Mr. X:
Thank you for your on-line complaint to the Ontario Securities Commission regarding the Kinross Gold Corporation (Kinross) offer to purchase all of the outstanding common shares of Aurelian Resources Inc. (Aurelian).
Your concerns will be reviewed by OSC staff, however, it is important to understand that the OSC is responsible for administering and enforcing Ontario securities law. Our reviews of complaints are undertaken from a regulatory perspective, to consider whether the issuer may have failed to comply with securities regulatory requirements that apply to it.
On July 24, 2008 Aurelian announced that Kinross offered to purchase the outstanding common shares of Aurelian. The Offer expires on September 3, 2008 and there is a provision for the board of directors to consider unsolicited competing offers. This Offer was made to all shareholders and its terms are described in the take-over bid circular filed on the System for Electronic Disclosure and Analysis Retrieval (SEDAR) web-site at www.sedar.com. The Letter of Transmittal that is required to tender shares is also filed on SEDAR.
You will note that, although the Offer has the support of Aurelian's board of directors, it is up to each shareholder to decide whether or not to accept the Offer by tendering their shares and therefore, there is no vote of shareholders in this matter. Those who do not tender will continue to be shareholders in the company, subject to subsequent action by the Offeror. I recommend that you carefully review the disclosure in the take-over bid circular which gives information for shareholders who do not tender their shares pertaining to the effect of the offer on markets for common shares.
OSC staff are unable to comment on the merits of the Offer put before shareholders nor may we offer financial advice to shareholders. I recommend that you discuss this Offer with your financial advisor who will be able to advise you of its impact on your financial circumstances. As there are time limits within which shareholders must take action, if your securities are held by your broker, you should inquire as soon as possible about how to proceed.
With respect to your concerns about the conduct of the directors, the management and the board of directors do have obligations to act in the best interests of the corporation and its stakeholders; however, these obligations arise principally from corporate statutory and common law, and not securities law. Therefore, they are not enforced by regulators such as the OSC. Specific remedies may be available to shareholders for breaches of corporate law, and these provisions are generally enforced by the affected parties. If you wish to pursue these concerns, your best option would be to consult with a lawyer with corporate and Ontario securities law expertise for advice about remedies that may be available in legal proceedings through the courts or in a regulatory application.
You also expressed concerns about the agreement by Kinross to purchase 15 million common shares of Aurelian on a private placement basis. The TSX has requirements for private placements that apply to its listed companies, including the maximum discount allowable for new securities issued. You may wish to review Part VI Changes in Capital Structure of Listed Issuers of the TSX Company Manual. In particular, you may wish to review section 607 Private Placementsunder B. Distributions of Securities of a Listed Class. You may access this information through the TSX's website at: www.tsx.com by clicking on "A Listed Company" under the heading "I AM:" and by then selecting "TSX Company Manual".
For further information about compliance with TSX requirements, you may wish to contact the TSX by e-mail at: info@tsx.com or by calling toll free 1-888-873-8392.
I appreciate the time you have taken to contact the Ontario Securities Commission.
Sincerely,
Allan Krystie
Senior Inquiries Officer
Ontario Securities Commission
inquiries@osc.gov.on.ca
(416) 593-8314
1-877-785-1555