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Barrick Gold Corporation et al. - s. 15.1 of NI 44-101
Headnote
Relief from certain prospectus disclosure requirements of National Instrument 44-101 - Short Form Prospectus Distributions where parent guarantees issuer's debt securities.
National Instruments Cited
National Instrument 44 --101 - Short Form Prospectus Distributions.
IN THE MATTER OF
THE SECURITIES LEGISLATION
OF THE PROVINCE OF ONTARIO
AND
IN THE MATTER OF
BARRICK GOLD CORPORATION
AND
BARRICK GOLD FINANCE COMPANY
DECISION DOCUMENT
WHEREAS the Director has received an application from Barrick Gold Corporation (Barrick), Barrick Gold Inc. (BGI) and Barrick Gold Finance Company (BGFC) (collectively, the Filer) for a decision pursuant to Section 15.1 of National Instrument 44-101 exempting the Filer in connection with the filing of the amended and restated base shelf prospectus referred to below from the requirements to include therein the information set forth in items 4.1, 7.1, 12.1(1), 12.1(2), 12.1(5) through (8), inclusive, and 12.2(1) through (4), inclusive, of Form 44-101F3 with respect to BGFC (the Prospectus Disclosure Requirements);
AND WHEREAS the Filer has represented to the Decision Makers as follows:
1. On June 17, 2003 and June 27, 2003, Barrick and BGI filed a preliminary base shelf prospectus (the Preliminary Base Shelf Prospectus) and a final base shelf prospectus (the Final Base Shelf Prospectus), respectively, in respect of up to $1,000,000,000 aggregate principal amount of debt securities to be offered from time to time by Barrick and/or BGI. Similar relief to the relief being sought in this application was obtained in respect of BGI.
2. Barrick was formed by the amalgamation of three mining companies on July 14, 1984 under the Business Corporations Act (Ontario). Its head office is located at BCE Place, Canada Trust Tower, Suite 3700, 161 Bay Street, P.O. Box 212, Toronto, ON M5J 2S1.
3. The authorized capital of Barrick consists of (i) an unlimited number of common shares, (ii) an unlimited number of first preferred shares, issuable in series of which one has been designated as first preferred shares, series C special voting share, and (iii) an unlimited number of second preferred shares, issuable in series. As of June 30, 2004, Barrick had 531,473,923 common shares, one first preferred share series C special voting share and no second preferred shares outstanding.
4. As at June 30, 2004, Barrick had approximately U.S. $696 million in long-term debt outstanding. All rated debt of Barrick is currently rated "A" by Standard & Poor's and "A3" by Moody's Investor Services.
5. Barrick is a reporting issuer (or equivalent) in each of the provinces and territories of Canada and is not on the list of reporting issuers in default in any of those jurisdictions.
6. The Barrick common shares are listed and posted for trading on The Toronto Stock Exchange, the New York Stock Exchange, the London Stock Exchange, the Swiss Exchange and the Paris Bourse.
7. BGFC is an unlimited liability company governed by the Companies Act (Nova Scotia).
8. BGFC is an indirect subsidiary of Barrick.
9. The authorized capital of BGFC consists of 100,000,000 common shares. As of June 30, 2004, 1,299,800 common shares were outstanding. All of BGFC's outstanding shares are held by Barrick and its affiliates.
10. BGFC is not currently a reporting issuer (or equivalent) in any Province or Territory of Canada.
11. BGFC has no more than minimal operations that are independent of Barrick and is an entity that functions essentially as a special purpose division of Barrick.
12. BGFC proposes to file a preliminary base shelf prospectus, and Barrick, BGI and BGFC propose to file an amended and restated shelf prospectus (the Amended and Restated Shelf Prospectus), which will be a final base shelf prospectus of BGFC and will amend and restate the Final Base Shelf Prospectus, pursuant to National Instruments 44-101 and 44-102 (collectively, the Shelf Requirements) pursuant to which Barrick, BGI and BGFC may issue up to a fixed aggregate principal amount of debentures, notes and/or other similar evidences of indebtedness (Debt Securities) from time to time over the period of effectiveness of the Amended and Restated Shelf Prospectus. As is the case with Debt Securities that may be issued by BGI, any BGFC Debt Securities so issued will be fully, unconditionally and irrevocably guaranteed by Barrick as to payment of principal, interest and all other amounts due thereunder.
13. The Preliminary Base Shelf Prospectus and the Final Base Shelf Prospectus were, and the Amended and Restated Shelf Prospectus will be, filed in Canada only in the Province of Ontario and will also be filed in the United States under the Multijurisdictional Review System.
14. In connection with any offering of Debt Securities (any such offering, an Offering):
(a) it is proposed that the Amended and Restated Shelf Prospectus 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 addressed by including the required disclosure with respect to Barrick only;
(ii) Item 7 of Form 44-101F3 being addressed by including the required disclosure with respect to Barrick only;
(iii) Item 12 of Form 44-101F3 being addressed by incorporating by reference Barrick's public disclosure documents, including Barrick's most recent annual report; and
(iv) Item 13 of Form 44-101F3 being addressed by incorporating by reference the audited annual financial statements of Barrick for the year ended December 31, 2003, including the note thereto which contains a summary of selected consolidated financial information for BGI, including information as to its consolidated revenues and other income, costs and expenses, income before taxes, net income, current assets, non-current assets, current liabilities and non-current liabilities;
(b) the Prospectus will include all material disclosure required by the Shelf Requirements concerning Barrick, BGI and BGFC;
(c) the Prospectus will incorporate by reference Barrick's current and future public disclosure documents as required by Item 12 of Form 44-101F3 and will state that purchasers of BGFC Debt Securities will not receive separate continuous disclosure information regarding BGFC;
(d) Barrick will fully, unconditionally and irrevocably guarantee payment of the principal and interest on any BGFC Debt Securities, together with any other amounts that may be due under any provisions of the trust indenture relating to such BGFC Debt Securities;
(e) the Debt Securities will have an approved rating (as defined in National Instrument 44-101);
(f) Barrick will sign the Prospectus as issuer and credit supporter; and
(g) Barrick will continue to file with the securities regulatory authorities in the Province of Ontario all documents required to be filed by it under the securities laws of such province.
AND WHEREAS the Director is satisfied that the decision requested by the Filer may be granted pursuant to Section 15.1 of NI 44-101;
THE DECISION of the Director is that the Prospectus Disclosure Requirements shall not apply to the Amended and Restated Shelf Prospectus or any prospectus supplement filed in respect of an Offering made pursuant thereto provided that each of Barrick, BGI and BGFC complies with paragraph 14 above.
August 19, 2004.
"Erez Blumberger"