Barrick Gold Corporation et al.
Headnote
Filers exempt from certain continuous disclosure, certification, audit committee, and corporate governance requirements, subject to conditions -- Filers exempt from certain form requirements under Form 44-101F1 in respect of short form base shelf prospectuses together with applicable prospectus supplements and pricing supplements in respect of the issuance of non-convertible debt securities guaranteed by the credit supporter, subject to conditions.
Applicable Legislative Provisions
National Instrument 44-101 Short Form Prospectus Distributions, s. 8.1.
Form 44-101F1 Short Form Prospectus, s. 13.2.
National Instrument 51-102 Continuous Disclosure Obligations, ss. 13.1, 13.4.
National Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings, ss. 8.5. 8.6.
National Instrument 52-110 Audit Committees, ss. 1.2(g), 8.1.
National Instrument 58-101 Corporate Governance Practices, ss. 1.3(c), 3.1.
December 23, 2013
IN THE MATTER OF
THE SECURITIES ACT (ONTARIO),
R.S.O. 1990, CHAPTER S.5 AS AMENDED
AND
IN THE MATTER OF
BARRICK GOLD CORPORATION (Barrick),
BARRICK NORTH AMERICA FINANCE LLC (BNAF) AND
BARRICK GOLD FINANCECO LLC
(BGF, and together with BNAF, the Finance Companies, and together with BNAF and Barrick, the Filers)
DECISION
Background
The Ontario Securities Commission (the Decision Maker) has received an application from the Filers for a decision under the securities legislation (the Legislation) of the Province of Ontario (the Jurisdiction) that the Filers be exempt from the following requirements contained in the Legislation:
(a) the requirement under the Legislation that each of the Finance Companies comply with the requirements of National Instrument 51-102 -- Continuous Disclosure Obligations (NI 51-102) (the Continuous Disclosure Relief);
(b) the requirement under the Legislation that each of the Finance Companies comply with the requirements of National Instrument 52-109 -- Certification of Disclosure in Issuers' Annual and Interim Filings (the Certification Relief);
(c) the requirement under the Legislation that each of the Finance Companies comply with requirements of National Instrument 52-110 Audit Committees (the Audit Committee Relief);
(d) the requirement under the Legislation that each of the Finance Companies comply with the requirements of National Instrument 58-101 -Disclosure of Corporate Governance Practices (the Corporate Governance Relief); and
(e) the requirement under the Legislation that each of the Finance Companies: (i) include in Future Prospectuses (as defined below) filed with the Decision Maker for Future Offerings (as defined below) its earning coverage ratios required under Item 6.1 of Form 44-101F1 promulgated under National Instrument 44-101 -Short Form Prospectus Distributions (NI 44-101) and (ii) incorporate by reference in Future Prospectuses filed with the Decision Maker for Future Offerings any of the documents specified under paragraphs 1 through 4, and 6 through 8 of Item 11.1(1) of Form 44-101F1 (collectively, the Prospectus Disclosure Relief).
Interpretation
Defined terms contained in National Instrument 14-101 -- Definitions have the same meaning in this decision unless otherwise set forth herein.
Representations
The decision is based on the following facts represented by the Filers:
1. Barrick is a corporation existing under the Business Corporations Act (Ontario). Barrick's head office and principal place of business is Brookfield Place, TD Canada Trust Tower, Suite 3700, 161 Bay Street, P.O. Box 212, Toronto, Ontario, Canada M5J 2S1.
2. Barrick is a leading international gold mining company. Barrick has operating mines and projects in Canada, the United States, Dominican Republic, Australia, Papua New Guinea, Peru, Chile, Argentina, Saudi Arabia, Zambia and Tanzania. Barrick's principal products and sources of earnings are gold and copper.
3. Barrick's common shares are listed on the New York Stock Exchange and the Toronto Stock Exchange under the symbol "ABX".
4. Barrick is a reporting issuer in each of the provinces and territories of Canada and is not on the lists of defaulting reporting issuers maintained pursuant to the legislation of any such jurisdiction.
5. BNAF is a limited liability company existing under the Delaware Limited Liability Company Act. BNAF's registered office in Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange St., Wilmington, Delaware 19801.
6. BNAF is an indirect, wholly-owned subsidiary of Barrick.
7. BNAF does not have any securities outstanding other than the types of securities listed in Section 13.4(2)(c) of NI 51-102.
8. BNAF is a reporting issuer in the Jurisdiction and is not on the list of defaulting reporting issuers maintained pursuant to the Legislation.
9. BGF is a limited liability corporation existing under the Delaware Limited Liability Company Act. BGF's registered office in Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange St., Wilmington, Delaware 19801.
10. BGF is an indirect, wholly-owned subsidiary of Barrick.
11. BGF does not have any securities outstanding other than the types of securities listed in Section 13.4(2)(c) of NI 51-102.
12. BGF is a reporting issuer in the Jurisdiction and is not on the list of defaulting reporting issuers maintained pursuant to the Legislation.
13. Barrick and the Finance Companies filed a short form base shelf prospectus with the securities regulatory authority in the Jurisdiction on June 12, 2008 in respect of certain non-convertible debt securities issuable by any of Barrick, BNAF or BGF.
14. In September 2008, the Finance Companies issued an aggregate of US$1.25 billion of non-convertible notes pursuant to a prospectus supplement dated September 8, 2008 to the short form base shelf prospectus dated June 12, 2008. Subsequently, BNAF has issued an additional US$3.05 billion of non-convertible notes.
15. Barrick and each of the Finance Companies may, from time to time in the future, offer additional non-convertible debt securities (Future Offerings), including potentially pursuant to one or more prospectuses, including without limitation, short form prospectuses, base shelf prospectuses, prospectus supplements and pricing supplements (collectively, Future Prospectuses). All non-convertible debt securities issued by the Finance Companies, whether currently outstanding or issued in the future, are collectively referred to herein as the Notes.
16. Since June 12, 2008, the Finance Companies have issued Notes in the aggregate principal amount of $4.3 billion, of which Notes in the aggregate principal amount of US$3.8 billion remain outstanding (US$0.5 billion has been repaid).
17. Barrick has fully and unconditionally guaranteed the Notes and no other subsidiary of Barrick has provided a guarantee or alternative credit support for the Notes.
18. The Notes are "designated credit support securities", as defined in Section 13.4(1) of NI 51-102.
19. The Notes have received an "approved rating" (as defined in NI 44-101) and the Notes have not been the subject of an announcement by an "approved rating organization" (as defined in NI 51-102) that the "approved rating" given by the organization may be down-graded to a rating category that would not be an "approved rating". All Notes issued pursuant to any Future Offering will have an "approved rating".
20. Neither of the Finance Companies has any assets, operations, revenues or cash flows other than those related to the issuance, administration and repayment of the Notes issued by it and each of the Finance Companies is a "finance subsidiary" as defined in Rule 3-10(h) of Regulation S-X promulgated by the United States Securities and Exchange Commission (the SEC).
21. Pursuant to Rule 3-10(b) of Regulation S-X, the requirement to provide the tabular disclosure similar to that set forth in Section 13.4(2)(g)(ii) of NI 51-102 and Item 13.2(f)(ii) of Form 44-101F1 does not apply to a "finance subsidiary" that is 100% owned by the parent company guarantor, if the guarantee is full and unconditional, no other subsidiary of the parent company guarantees the securities and the parent company's financial statements include a footnote (i) stating that the issuer subsidiary is a 100%-owned finance subsidiary of the parent company guarantor and the parent company guarantor has fully and unconditionally guaranteed the securities and (ii) including the disclosure contemplated in paragraph (d) of the Continuous Disclosure Relief granted below in each of its annual and interim financial statements.
22. Each of the Finance Companies will meet the eligibility requirements set out in Section 13.4(2) of NI 51-102 except that Barrick will not meet the test set forth in Section 13.4(2)(g)(i)(B).
23. Each of the Finance Companies will meet the eligibility requirements of Item 13.2 of Form 44-101F1 except that Barrick does not meet the test set forth in Item 13.2(f)(i)(B).
24. The requested Continuous Disclosure Relief, the Certification Relief, the Audit Committee Relief, the Corporate Governance Relief and the Prospectus Disclosure Relief is substantially the same as the relief granted pursuant to a decision of the Decision Maker dated May 23, 2008 (the 2008 Decision). The 2008 Decision is valid until December 31, 2013.
Decision
The Decision Maker is satisfied that the test contained in the Legislation that provides the Decision Maker with the jurisdiction to make the decision has been met.
Continuous Disclosure Relief
The decision of the Decision Maker under the Legislation is that the Continuous Disclosure Relief is granted provided that:
(a) each of the Finance Companies is a "finance subsidiary" of Barrick as defined in Rule 3-10(h) of Regulation S-X promulgated by the SEC;
(b) the Finance Companies and Barrick continue to satisfy all the conditions set forth in subsection 13.4(2) of NI 51-102, other than paragraph 13.4(2)(g);
(c) Barrick discloses in each of its annual financial statements and interim financial statements filed with the Decision Maker any significant restrictions on the ability of Barrick to obtain funds from its subsidiaries by dividend or loan;
(d) Barrick discloses in each of its annual and interim financial statements filed with the Decision Maker: (i) any significant restrictions on the ability of Barrick or any of the Finance Companies to obtain funds from its subsidiaries by dividend or loan; (ii) the nature of any restrictions on the ability of the consolidated subsidiaries and unconsolidated subsidiaries of Barrick to transfer funds to Barrick in the form of cash dividends, loans or advances (i.e., borrowing arrangements, regulatory constraints, foreign government, etc.) and (iii) the amount of "restricted net assets" (calculated in the manner specified in paragraph (e) below) for unconsolidated subsidiaries and consolidated subsidiaries of Barrick as of the end of its most recently completed fiscal year (with such amounts for unconsolidated subsidiaries and consolidated subsidiaries disclosed separately), provided that, the disclosure contemplated in paragraphs (d)(ii) and (d)(iii) above are only required to be provided when the "restricted net assets" of consolidated and unconsolidated subsidiaries of Barrick, and Barrick's equity in undistributed earnings of 50% or less owned persons accounted for by the equity method, together exceed 25% of the consolidated net assets of Barrick as of the end of its most recently completed fiscal year;
(e) "restricted net assets" shall be calculated in the manner specified in this paragraph (e). "Restricted net assets" of subsidiaries shall mean that amount of Barrick's proportionate share of net assets (after intercompany eliminations) reflected in the balance sheets of its consolidated and unconsolidated subsidiaries as of the end of the most recent fiscal year which may not be transferred to Barrick in the form of loans, advances or cash dividends by the subsidiaries without the consent of a third party (i.e., lender, regulatory agency, foreign government, etc.). Not all limitations on transferability of assets are considered to be restrictions for purposes of calculating "restricted net assets", which considers only specific third party restrictions on the ability of subsidiaries to transfer funds outside of the entity. For example, the presence of subsidiary debt which is secured by certain of the subsidiary's assets does not constitute a restriction for purposes of calculating "restricted net assets". However, if there are any loan provisions prohibiting dividend payments, loans or advances to Barrick by a subsidiary, these are considered restrictions for purposes of computing "restricted net assets". When a loan agreement requires that a subsidiary maintain certain working capital, net tangible asset, or net asset levels, or where formal compensating arrangements exist, there is considered to be a restriction because the lender's intent is normally to preclude the transfer by dividend or otherwise of funds to Barrick. Similarly, a provision which requires that a subsidiary reinvest all of its earnings is a restriction, since this precludes loans, advances or dividends in the amount of such undistributed earnings by the entity. Where restrictions on the amount of funds which may be loaned or advanced differ from the amount restricted as to transfer in the form of cash dividends, the amount least restrictive to the subsidiary shall be used. Redeemable preferred stocks and minority interests shall be deducted in computing net assets for purposes of these calculations;N
(f) each of the Finance Companies continues to have minimal or no assets, operations, revenues or cash flows other than those related to the issuance, administration and repayment of the Notes and any other securities guaranteed by Barrick; and
(g) each of the Finance Companies files, with the annual and interim financial statements of Barrick, a statement that the financial results of the Finance Companies are included in the consolidated results of Barrick.
Certification Relief
The further decision of the Decision Maker under the Legislation is that the Certification Relief is granted provided that the Filers continue to satisfy the conditions of the Continuous Disclosure Relief, above.
Audit Committee Relief
The further decision of the Decision Maker under the Legislation is that the Audit Committee Relief is granted provided that the Filers continue to satisfy the conditions of the Continuous Disclosure Relief, above.
Corporate Governance Relief
The further decision of the Decision Maker under the Legislation is that the Corporate Governance Relief is granted provided that the Filers continue to satisfy the conditions of the Continuous Disclosure Relief, above.
Prospectus Disclosure Relief
The further decision of the Decision Maker under the Legislation is that the Prospectus Disclosure Relief is granted provided that:
(a) the Finance Companies and Barrick satisfy the conditions set forth in Item 13.2 of Form 44-101F1 and NI 44-101, other than Items 13.2(f)(i)(B) and 13.2(f)(ii) of Form 44-101F1, unless otherwise exempted therefrom;
(b) Barrick provides the disclosure contemplated in paragraphs (c) and (d) of the Continuous Disclosure Relief granted above in each of its annual and interim financial statements incorporated by reference into any Future Prospectus filed with the Decision Maker in respect of a Future Offering;
(c) each of the Finance Companies continues to have minimal or no assets, operations, revenues or cash flows other than those related to the issuance, administration and repayment of the Notes and any other securities guaranteed by Barrick at the time a Future Prospectus is filed in respect of a Future Offering; and
(d) each Future Prospectus includes a statement that the financial results of the Finance Companies are included in the consolidated results of Barrick.
Date: December 23, 2013