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 a credit supporter, subject to conditions.
Statutes Cited
National Instrument 51-102 Continuous Disclosure Obligations, ss. 13.1, 13.4.
Multilateral Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings, ss. 4.4, 4.5.
Multilateral Instrument 52-110 Audit Committees, ss. 1.2(G), 8.1.
National Instrument 58-101 Disclosure of Corporate Governance Practices, ss. 1.3(C), 3.1.
National Instrument 44-101 Short Form Prospectus Distributions, s. 8.1.
Form 44-101F1 Short Form Prospectus, s. 13.1.
May 23, 2008
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 of the Province of Ontario (the Legislation) 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 Multilateral Instrument 52-109 -- Certification of Disclosure in Issuers' Annual and Interim Filings (the Certification Relief);
(c) the requirements under the Legislation that each of the Finance Companies comply with requirements relating to 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);
(e) the requirement under the Legislation that each of the Finance Companies: (i) include in the prospectus to be filed with the Decision Maker (including applicable prospectus supplements filed from time to time, the Prospectus) its earning coverage ratios required under Section 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 the Prospectus filed with the Decision Maker any of the documents specified under paragraphs 1 through 4, 6 and 7 of Section 11.1(1) of Form 44-101F1 (collectively, the Prospectus Disclosure Relief); and
(f) the application and this decision be held in confidence by the Decision Maker, subject to certain conditions.
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 with a portfolio of 27 operating mines and ten projects, at varying levels of development, located across five continents, and a large land position on the world's best exploration belts.
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. 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.
9. BGF is an indirect, wholly-owned subsidiary of Barrick.
10. BGF does not have any securities outstanding other than the types of securities listed in Section 13.4(2)(c) of NI 51-102.
11. Barrick and the Finance Companies intend to file a Prospectus with the securities regulatory authority in the Province of Ontario (the Jurisdiction) in respect of certain non-convertible debt securities (the Notes) issuable by any of Barrick, BNAF or BGF.
12. The Filers intend to distribute the Notes primarily in the United States under the multi-jurisdictional disclosure system and do not intend to qualify the Notes for distribution in any province or territory of Canada other than Ontario.
13. The obligations of each of the Finance Companies under the Notes will be fully and unconditionally guaranteed by Barrick.
14. The Notes, when issued, will be "designated credit support securities", as defined in Section 13.4(1) of N1 51-102.
15. 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).
16. 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 13.1(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.
17. 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).
18. Each of the Finance Companies will meet the eligibility requirements of Item 13.1 of Form 44-101F1 except that Barrick does not meet the test set forth in Item 13.1(f)(i)(B).
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 (d). "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
(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;
(g) Each of the Finance Companies files, with the interim financial statements of Barrick and annual financial statements of Barrick, a statement that the financial results of the Finance Companies are included in the consolidated results of Barrick; and
(h) the Continuous Disclosure Relief granted herein shall only be valid until December 31, 2013.
Certification Relief
The further decision of the Decision Maker under the Legislation is that the Certification Relief is granted provided that:
(a) the Filers continue to satisfy the conditions of the Continuous Disclosure Relief, above; and
(b) the Certification Relief granted herein shall only be valid until December 31, 2013.
Audit Committee Relief
The further decision of the Decision Maker under the Legislation is that the Audit Committee Relief is granted provided that:
(a) the Filers continue to satisfy the conditions of the Continuous Disclosure Relief, above; and
(b) the Audit Committee Relief granted herein shall only be valid until December 31, 2013.
Corporate Governance Relief
The further decision of the Decision Maker under the Legislation is that the Corporate Governance Relief is granted provided that:
(a) the Filers continue to satisfy the conditions of the Continuous Disclosure Relief, above; and
(b) the Corporate Governance Relief granted herein shall only be valid until December 31, 2013.
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 13.1 of Form 44-101F1 and NI 44-101, other than Items 13.1(f)(i)(B) and 13.1(f)(ii) of Form 44-101F1, unless otherwise exempted therefrom;
(b) Barrick provides the disclosure contemplated in paragraph (d) of the Continuous Disclosure Relief granted above in each of its annual and interim financial statements filed with the Decision Maker; and
(c) the Prospectus Disclosure Relief granted herein shall only be valid until December 31, 2013.
The further decision of the Decision Maker under the Legislation is that the application and this decision shall be held in confidence by the Decision Maker until the earlier of (i) the date on which the Filers publicly announce their intention to file the Prospectus, (ii) the date that a preliminary short form base shelf prospectus is filed in respect of the Notes, (iii) the date on which the Filers advise the Decision Maker that there is no longer any need for the application and this decision to remain confidential, and (iv) June 30, 2008.
DATED at Toronto on this 23rd day of May, 2008.