Consent given to an offering corporation under the Business Corporations Act (Ontario) to continue under the Business Corporations Act (British Columbia).
Business Corporations Act, R.S.O. 1990, c. B.16, as am., s. 181.
Securities Act, R.S.O. 1990, c. S.5, as am.
Regulation made under the Business Corporations Act, Ont. Reg. 289/00, as am., s. 4(b).
IN THE MATTER OF R.R.O. 1990, REGULATION 289/00, AS AMENDED (the Regulation) MADE UNDER THE BUSINESS CORPORATIONS ACT (ONTARIO), R.S.O. 1990 c. B.16, AS AMENDED (the OBCA) AND IN THE MATTER OF BARRICK GOLD CORPORATION
CONSENT (Subsection 4(b) of the Regulation)
UPON the application (the Application) of Barrick Gold Corporation (the Applicant) to the Ontario Securities Commission (the Commission) requesting the Commission's consent to the Applicant continuing in another jurisdiction pursuant to section 181 of the OBCA (the Continuance);
AND UPON considering the Application and the recommendation of staff of the Commission;
AND UPON the Applicant having represented to the Commission that:
1. The Applicant is an offering corporation under the OBCA.
2. The authorized capital of the Applicant consists of (a) an unlimited number of common shares, (b) an unlimited number of first preferred shares, issuable in series and (c) an unlimited number of second preferred shares, issuable in series. As at November 9, 2018, the Applicant had issued and outstanding 1,167,593,272 common shares and no preferred shares.
3. The Applicant's common shares are listed and posted for trading on the Toronto Stock Exchange and the New York Stock Exchange (together, the Stock Exchanges) under the symbol "ABX".
4. The Applicant intends to submit an application to the Director under the OBCA (the Application for Continuance) for authorization to continue as a corporation under the Business Corporations Act (British Columbia) (the BCBCA) pursuant to section 181 of the OBCA (the Continuance).
5. The Applicant believes that it is appropriate at this time to continue to British Columbia, which has a more modern corporate statute that provides additional flexibility to the Applicant in a number of areas, including increased flexibility with respect to capital management and in the composition of the board of directors of the Applicant (the Board). One of the immediate benefits of the Continuance is that it will permit the Applicant greater flexibility to reconstitute the Board in connection with the proposed acquisition by the Applicant of the shares of Randgold Resources Limited (Randgold) pursuant to a Jersey scheme of arrangement (the Merger). Pursuant to the terms of the Merger, the Applicant will issue 6.1280 common shares of the Applicant for each share of Randgold. Following completion of the Merger, Randgold shareholders will own approximately 33.4% of the Applicant's common shares and existing shareholders of the Applicant will own approximately 66.6%. On closing of the Merger, the Board will be reconstituted such that one-third of the directors will be appointed by Randgold and two-thirds will be appointed by the Applicant.
6. The Applicant is a reporting issuer under the Securities Act, R.S.O. 1990, c.S.5, as amended (the Act) and the securities legislation of each of the other Provinces and Territories of Canada (collectively, the Legislation) and will remain a reporting issuer in these jurisdictions following the Continuance.
7. The Applicant is not in default of any of the provisions of the OBCA, the Act or the Legislation, including the regulations made thereunder.
8. The Applicant is not in default of any of the provisions of the rules, regulations or policies of the Stock Exchanges.
9. The Applicant is not a party to any proceeding under the OBCA, the Act or the Legislation, except that proposed class action proceedings have been commenced against the Applicant in certain jurisdictions in Canada under which claims are being made under the statutory regime for civil liability for secondary market and primary market disclosure established by the Act and the Legislation. The Continuance is not intended to alter in any way the status, rights or potential liability of the Applicant in respect of these proceedings.
10. The Commission is the principal regulator of the Applicant and will continue to be the principal regulator of the Applicant following the Continuance.
11. The Applicant's shareholders authorized the Continuance at the special meeting of shareholders held on November 5, 2018 (the Meeting) by a special resolution that was approved by over 99% of the votes cast. No shareholder exercised dissent rights pursuant to section 185 of the OBCA with respect to the Continuance (the Dissent Rights).
12. The Applicant's management information circular dated October 4, 2018 was sent to all shareholders in connection with the Meeting and described the Continuance and disclosed the reasons for and implications of the Continuance. It also included a description of the Dissent Rights.
13. The material rights, duties and obligations of a corporation governed by the BCBCA are substantially similar to those of a corporation governed by the OBCA.
14. Subsection 4(b) of the Regulation requires the Application for Continuance to be accompanied by a consent from the Commission.
AND UPON the Commission being satisfied that to do so would not be prejudicial to the public interest;
THE COMMISSION CONSENTS to the continuance of the Applicant under the BCBCA.
DATED at Toronto, Ontario on this 16th day of November, 2018.