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Barrick Gold Corporation and Barrick Gold Inc. - Decision
Headnote
Relief from certain prospectus disclosure requirementsof National Instrument 44-101 - Short Form Prospectus Distributionswhere parent guarantees issuer's debt securities.
National Instruments Cited
National Instrument 44 --101 - Short Form ProspectusDistributions.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
THE PROVINCE OF ONTARIO
AND
IN THE MATTER OF
BARRICK GOLD CORPORATION
AND
BARRICK GOLD INC.
DECISION DOCUMENT
WHEREAS the Director has received anapplication from Barrick Gold Corporation (Barrick) and BarrickGold Inc. (formerly Homestake Canada Inc.) (BGI) (collectively,the Filer) for a decision pursuant to Section 15.1 of NationalInstrument 44-101 exempting the Filer in connection with thefiling of the preliminary base shelf prospectus and final baseshelf prospectus referred to below from the requirements toinclude therein the information set forth in items 4.1, 7.1,12.1(1)1, 12.1(1)2, 12.1(1)5 through 8, inclusive, and 12.2(1)through (4), inclusive, of Form 44-101F3 with respect to BGI(the Prospectus Disclosure Requirements);
AND WHEREAS the Filer has representedto the Director as follows:
1. On September 28, 1998, Homestake MiningCompany (Homestake), Homestake Canada Holdings Company, BGIand Prime Resources Group Inc. (Prime) entered into an arrangementagreement pursuant to which BGI acquired the approximately49.4% of the common shares of Prime which it did not alreadyown by way of a plan of arrangement under the CompaniesAct (British Columbia). Under such plan of arrangement,holders of Prime common shares received shares of Homestakecommon stock or exchangeable shares of BGI (the ExchangeableShares) exchangeable at the option of the holder for sharesof Homestake common stock. Upon completion of such plan ofarrangement, BGI became a reporting issuer in each of theprovinces of British Columbia, Alberta, Saskatchewan, Manitoba,Ontario and Quebec by virtue of provisions of the securitieslegislation of such provinces. On January 1, 1999, BGI amalgamatedwith Prime, which was then a reporting issuer in each of theprovinces of British Columbia, Alberta, Saskatchewan, Manitoba,Ontario and Quebec.
2. On December 14, 2001, Homestake MergerCo., a U.S. subsidiary of Barrick, merged with Homestake pursuantto an agreement and plan of merger dated June 24, 2001 (theMerger). In connection with the Merger, the Exchangeable Sharesremained outstanding, but each such Exchangeable Share becameexchangeable for 0.53 Barrick common shares, rather than forone share of Homestake common stock.
3. In contemplation of the Merger, a decision(the Original Continuous Disclosure Decision) was obtainedfrom the securities regulators in each of the provinces andterritories of Canada (the Regulators) to, among other things,exempt BGI from the continuous disclosure requirements ofapplicable securities laws provided that the conditions ofsuch decision were satisfied. The Original Continuous DisclosureDecision was varied by a further decision of the Regulatorsdated May 30, 2003 to permit BGI to issue debt securitiesto Barrick and/or its subsidiaries, banks, loan corporations,trust corporations, treasury branches, credit unions, insurancecompanies or other financial institutions (the Original ContinuousDisclosure Decision as so varied, the "Existing ContinuousDisclosure Decision"). Contemporaneously herewith, theFiler has made an application to the Regulators to furthervary the Existing Decision to permit BGI to issue debt obligationsguaranteed by Barrick and to add certain provisions whichshall apply in the event of the issuance to the public ofany debt obligations of BGI, including, among other things,provisions setting forth the ongoing financial disclosurerequirements in respect of BGI.
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. As at March 31, 2003, Barrick had approximatelyU.S. $757 million in long-term debt outstanding. Allrated debt of Barrick is currently rated "A" byStandard & Poor's and "A3" by Moody's InvestorServices.
7. 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.
8. 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.
9. BGI is a corporation governed by the BusinessCorporations Act (Ontario).
10. BGI is an indirect subsidiary of Barrick.
11. The authorized capital of BGI 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 BGI's outstanding shares, other thanthe Exchangeable Shares held by the public, are held by Barrickand its affiliates.
12. BGI 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.
13. The Exchangeable Shares are listed andposted for trading on The Toronto Stock Exchange.
14. 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.
15. BGI carries on more than minimal operationsthat are independent of Barrick.
16. Barrick and BGI propose to file a preliminaryshelf prospectus (the Preliminary Shelf Prospectus) and finalshelf prospectus (the Final Shelf Prospectus) pursuant toNational Instruments 44-101 and 44-102 (collectively, theShelf Requirements) pursuant to which they may issue up toa fixed aggregate principal amount of debentures, notes and/orother similar evidences of indebtedness (Debt Securities)from time to time over the period of effectiveness of theFinal Shelf Prospectus. Any Debt Securities issued by BGI(BGI Debt Securities) will be fully, unconditionally and irrevocablyguaranteed by Barrick as to payment of principal, interestand all other amounts due thereunder.
17. The Preliminary Shelf Prospectus and theFinal Shelf Prospectus will be filed in Canada only in theProvince of Ontario and will also be filed in the United Statesunder the Multijurisdictional Review System.
18. In connection with any offering of DebtSecurities (any such offering, an Offering):
(a) it is proposed that the Final ShelfProspectus and a prospectus supplement or supplements (collectively,the Prospectus) will be prepared pursuant to the Shelf Requirements,with the disclosure required by:
(i) Item 4.1 of Form 44-103F3 being addressedby including the required disclosure with respect to Barrickonly;
(ii) Item 7 of Form 44-101F3 being addressedby including the required disclosure with respect to Barrickonly;
(iii) Item 12 of Form 44-101F3 being addressedby incorporating by reference Barrick's public disclosuredocuments, including Barrick's most recent annual report;and
(iv) Item 13 of Form 44-101F3 being addressedby incorporating by reference the audited annual financialstatements of Barrick for the year ended December 31,2002, including the note thereto which contains a summaryof selected consolidated financial information for BGI,including information as to its consolidated revenuesand other income, costs and expenses, income before taxes,net income, current assets, non-current assets, currentliabilities and non-current liabilities;
(b) the Prospectus will include all materialdisclosure required by the Shelf Requirements concerningBarrick and BGI;
(c) the Prospectus will incorporate by referencedisclosure Barrick's current and future public disclosuredocuments as required by Item 12 of Form 44-101F3 and willstate that purchasers of BGI Debt Securities will not receiveseparate continuous disclosure information regarding BGI;
(d) Barrick will fully, unconditionallyand irrevocably guarantee payment of the principal and intereston any BGI Debt Securities, together with any other amountsthat may be due under any provisions of the trust indenturerelating to such BGI Debt Securities;
(e) the Debt Securities will have an approvedrating (as defined in National Instrument 44-101);
(f) Barrick will sign the Prospectus asissuer and credit supporter; and
(g) Barrick will continue to file with thesecurities regulatory authorities in the Province of Ontarioall documents required to be filed by it under the securitieslaws of such province.
AND WHEREAS the Director is satisfiedthat the decision requested by the Filer may be granted pursuantto Section 15.1 of NI 44-101;
THE DECISION of the Director is thatthe Prospectus Disclosure Requirements shall not apply to theFinal Shelf Prospectus or any prospectus supplement filed inrespect of an Offering made pursuant thereto provided that eachof Barrick and BGI complies with paragraph 18 above.
June 25, 2003.
"John Hughes"