Bank of New York - ss. 46(4) of the OBCA
Headnote
Order pursuant to subsection 46(4) of the Business Corporations Act (Ontario) - trust indenture governed by the United States Trust Indenture Act of 1939, as amended - trustee filed with the Commission a submission to the non-exclusive jurisdiction of the courts and administrative tribunals of Ontario and appointment of an agent for service of process in Ontario - any pricing supplement or prospectus supplement under which the debt securities will be offered or sold in Ontario will include disclosure about the existence of this order and a statement regarding the risks associated with the purchase of the debt securities under the trust indenture by a holder in Ontario as a result of the absence of a local trustee appointed under the trust indenture - trust indenture exempted from the requirements of Part V of the Business Corporations Act (Ontario) in connection with a cross-border offering of debt securities.
Statutes Cited
Business Corporations Act, R.S.O. 1990, c. B.16, as am., ss. 46(2), 46(3), 46(4), Part V.
Securities Act, R.S.O. 1990, c. S.5, as am.
IN THE MATTER OF
THE BUSINESS CORPORATIONS ACT,
R.S.O. 1990, CHAPTER B.16, AS AMENDED
(THE "OBCA")
AND
IN THE MATTER OF
THE BANK OF NEW YORK
AND
BARRICK GOLD CORPORATION
ORDER
(Subsection 46(4) of the OBCA)
UPON the application of The Bank of New York (the "Applicant") to the Ontario Securities Commission (the "Commission") for an order pursuant to subsection 46(4) of the OBCA exempting a trust indenture entered into between Barrick Gold Corporation ("Barrick"), certain affiliates of Barrick and the Applicant from the requirements of Part V of the OBCA;
AND UPON considering the application and the recommendation of the staff of the Commission;
AND UPON it being represented by Barrick and the Applicant to the Commission that:
1. The Applicant is a banking corporation organized under the laws of New York and is neither resident nor authorized to do business in Ontario and is the trustee under an indenture (the "Indenture") entered into between Barrick, certain affiliates of Barrick and the Applicant.
2. Barrick has advised the Applicant that Barrick is a corporation existing under the laws of the province of Ontario and is a reporting issuer under the Securities Act, R.S.O. 1990, c.S. 5, as amended (the "Act") that is not in default of any of its obligations under the Act as a reporting issuer. Barrick's head office is located at Brookfield Place, TD Canada Trust Tower Suite 3700, 161 Bay Street, P.O. Box 212 Toronto, Ontario M5J 2S1.
3. Barrick proposes to sell debt securities (the "Debt Securities") in the province of Ontario under the Indenture.
4. A short form base shelf prospectus (the "Prospectus") will be filed by Barrick and its affiliates with the Commission pursuant to the applicable requirements of National Instrument 44-101 -- Short Form Prospectus Distributions and National Instrument 44-102 -- Shelf Distributions to qualify the distribution of the Debt Securities in the province of Ontario but not in any other province or territory of Canada. Accordingly, the Debt Securities may not be offered or sold in Canada (except in the province of Ontario) or to any resident of Canada (other than residents of Ontario) except pursuant to an exemption from the prospectus requirements of the applicable province or territory of Canada and otherwise in accordance with applicable securities laws.
5. Public offers and sales of the Debt Securities will be made, from time to time, in the United States pursuant to a shelf registration statement on Form F-9 and Form F-3 (the "Registration Statement") which has been filed by Barrick with the United States Securities and Exchange Commission (the "SEC"). The short form base shelf prospectus refered to in paragraph 4 above will form a part of the Registration Statement.
6. Because the Prospectus will be filed under the Act, Part V of the OBCA will apply to the Indenture by virtue of subsection 46(2) of the OBCA.
7. As a result of the filing of the Registration Statement with the SEC, the Indenture will be subject to and governed by the provisions of the United States Trust Indenture Act of 1939 (the "TIA"). Upon the receipt of requested exemptions under the OBCA pursuant to the Order, the Indenture will continue to be subject to the TIA. The Indenture provides that there shall always be a trustee thereunder that satisfies the requirements of sections 310(a)(1), 310(a)(2) and 310(b) of the TIA and that the terms of such Indenture will be consistent with the requirements of the TIA.
8. Because the TIA regulates trustees and trust indentures of publicly offered debt securities in the United States in a manner that is consistent with Part V of the OBCA, holders of Debt Securities in Ontario will not, subject to paragraph 9, derive any additional material benefit from having the Indenture be subject to Part V of the OBCA.
9. The Applicant has filed with the Commission a submission to the non-exclusive jurisdiction of the courts and administrative tribunals of Ontario and appointment of an agent for service of process in Ontario (a "Submission to Jurisdiction and Appointment of Agent for Service of Process").
10. Barrick has advised the Applicant that any pricing supplement or prospectus supplement under which Debt Securities will be offered or sold in Ontario will disclose the existence of the Order and state that the Applicant, its officers and directors, and the assets of the Applicant are located outside of Ontario and, as a result, it may be difficult for a holder of Debt Securities to enforce rights against the Applicant, its officers or directors, or the Applicant's assets and that the holder may have to enforce rights against the Applicant in the United States.
AND UPON the Commission being of the opinion that to do so would not be prejudicial to the public interest;
IT IS ORDERED, pursuant to subsection 46(4) of the OBCA, that the Indenture is exempt from Part V of the OBCA, provided that:
(a) the Indenture is governed by and subject to the TIA; and
(b) the Applicant, or any trustee that replaces the Applicant under the terms of the Indenture, has filed with the Commission a Submission to Jurisdiction and Appointment of Agent for Service of Process.
DATED at Toronto on this 10th day of June, 2008.