Mutual Reliance Review System for ExemptiveRelief Applications -- variation of decision granting exemptionto issuer of exchangeable shares from certain continuous disclosurerequirements, subject to certain conditions. Conditions amendedto permit issuer to issue debt obligations to its parent andits parent's subsidiaries.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c. S.5, as am.,s. 144.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
BRITISH COLUMBIA, ALBERTA,SASKATCHEWAN,
MANITOBA, ONTARIO, QUEBEC,NEW BRUNSWICK,
NOVA SCOTIA, PRINCE EDWARDISLAND, NEWFOUNDLAND
AND LABRADOR, THE YUKON TERRITORY,
THE NORTHWEST TERRITORIESAND NUNAVUT
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
BARRICK GOLD CORPORATION
HOMESTAKE CANADA INC.
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the Decision Maker) in each of BritishColumbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec,New Brunswick, Nova Scotia, Prince Edward Island, Newfoundlandand Labrador, the Yukon Territory, the Northwest Territoriesand Nunavut (the Jurisdictions) has received an applicationfrom Barrick Gold Corporation (Barrick) and Homestake CanadaInc. (HCI) (together, the Filer), for a decision pursuant tothe securities legislation of the Jurisdictions (the Legislation)that the decision dated September 18, 2001 granted to Barrickand HCI by the Decision Maker in each Jurisdiction (the ExistingDecision) be varied so that:
(a) paragraph 4(f) is deleted and replacedwith the following so that HCI is permitted to issue debtto Barrick and/or its subsidiaries:
HCI does not issue any third preferenceshares or fourth preference shares or debt obligations,other than debt obligations issued to Barrick and/or itssubsidiaries, banks, loan corporations, trust corporations,treasury branches, credit unions, insurance companies orother financial institutions.
AND WHEREAS pursuant to the Mutual RelianceReview System for Exemptive Relief Applications (the System),the Ontario Securities Commission is the principal regulatorfor this Application;
AND WHEREAS the Filer has representedto the Decision Makers as follows:
1. On December 14, 2001, Homestake MergerCo., a U.S. subsidiary of Barrick, merged with Homestake MiningCompany (Homestake) pursuant to an agreement and plan of mergerdated June 24, 2001 (the Merger). In connection with the Merger,the exchangeable shares issued to the public by HCI (the ExchangeableShares) remained outstanding, but each such Exchangeable Sharebecame exchangeable for 0.53 Barrick common shares, ratherthan for one share of Homestake common stock.
2. In contemplation of the Merger, the ExistingDecision was obtained to, among other things, exempt HCI fromthe requirements contained in the Legislation of the Jurisdictionsin which HCI is a reporting issuer (or equivalent) to issuea press release and file a report upon the occurrence of amaterial change, to file and deliver an annual report, whereapplicable, to file and deliver interim and annual financialstatements and to file an information circular or analogousreport, provided the conditions of the Existing Decision,including in particular the requirement that holders of ExchangeableShares receive all disclosure material furnished to holdersof Barrick common shares pursuant to the Legislation, weresatisfied.
3. HCI intends to undertake an internal borrowingwhereby it will borrow funds from its ultimate parent, Barrick,or one of its subsidiaries.
4. Barrick was formed by the amalgamationof three mining companies on July 14, 1984 under the BusinessCorporations Act (Ontario). Its head office is locatedat BCE Place, Canada Trust Tower, Suite 3700, 161 Bay Street,P.O. Box 212, Toronto, ON M5J 2S1.
5. The authorized capital of Barrick consistsof (i) an unlimited number of common shares, (ii) an unlimitednumber of first preferred shares, issuable in series of whichone has been designated as first preferred shares, seriesC special voting share, and (iii) an unlimited number of secondpreferred shares, issuable in series. As of April 30, 2003,Barrick had 541,460,118 common shares, one first preferredshare series C special voting share and no second preferredshares outstanding.
6. Barrick is a reporting issuer (or equivalent)in each of the provinces and territories of Canada and isnot on the list of reporting issuers in default in any ofthose jurisdictions.
7. The Barrick common shares are listed andposted for trading on The Toronto Stock Exchange, the NewYork Stock Exchange, the London Stock Exchange, the SwissExchange and the Paris Bourse.
8. HCI is a corporation governed by the BusinessCorporations Act (Ontario).
9. HCI is an indirect subsidiary of Barrick.
10. The authorized capital of HCI consistsof (i) an unlimited number of Class A common shares, (ii)an unlimited number of Class B common shares, (iii) an unlimitednumber of Exchangeable Shares, (iv) an unlimited number ofthird preference shares, issuable in series, of which 10,000,000have been designated as third preference shares, series 1,and (v) an unlimited number of fourth preference shares. Asof April 30, 2003, 100,000 Class A common shares, 1,570,522Exchangeable Shares (excluding shares held by Barrick andits affiliates), 103,986,397 Class B common shares, no thirdpreference shares and 277,775,266 fourth preference shareswere outstanding. All of HCI's outstanding shares, other thanthe Exchangeable Shares held by the public, are held by Barrickand its affiliates.
11. HCI is a reporting issuer (or equivalent)in Ontario, Quebec, British Columbia, Saskatchewan, Manitobaand Nova Scotia and is not on the list of reporting issuersin default in any of those jurisdictions.
12. The Exchangeable Shares are listed andposted for trading on The Toronto Stock Exchange.
13. Each Exchangeable Share provides the holderthereof with the economic and voting equivalent, to the extentpracticable, of 0.53 Barrick common shares and the holdersof Exchangeable Shares receive the same disclosure that Barrickprovides to holders of Barrick common shares.
AND WHEREAS pursuant to the System thisMRRS Decision Document evidences the decision of each DecisionMaker (collectively, the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Maker with the jurisdiction to make theDecision has been met;
THE DECISION of the Decision Makers pursuantto the Legislation is that the Existing Decision is varied toreplace the existing paragraph 4(f) with the following:
HCI does not issue any third preference sharesor fourth preference shares or debt obligations, other thandebt obligations issued to Barrick and/or its subsidiaries,banks, loan corporations, trust corporations, treasury branches,credit unions, insurance companies or other financial institutions.
May 30, 2003.
"Harold P. Hands"
"Robert W. Korthals"