Register today for OSC Dialogue 2024: Inviting, thriving and secure capital markets
Barrick Gold Corporation and Homestake Canada Inc. - MRRS Decision
Headnote
Two subsidiaries of issuer exempt from requirementto pay participation fee, subject to conditions.
Statutes Cited
Securities Act, R.S.O. 1990, c. S.5, as am.
Rules Cited
OSC Rule 13-502 Fees (2003), 26 OSCB 890.
IN THE MATTER OF
THE SECURITIES ACT R.S.O.1990, C. S.5, AS AMENDED AND
ONTARIO SECURITIES COMMISSIONRULE 13-502 FEES (the "Fee Rule")
AND
IN THE MATTER OF
BARRICK GOLD CORPORATION,BARRICK GOLD INC.
AND BARRICK GOLD FINANCE INC.
EXEMPTION
(Section 6.1 of the Fee Rule)
UPON the Director having received anapplication (the "Application") from Barrick GoldCorporation (the "Applicant" or "Barrick"),on its own behalf and on behalf of Barrick Gold Finance Inc.("Barrick Finance") and Barrick Gold Inc. (formerlyHomestake Canada Inc.) ("BGI"), seeking a decisionpursuant to section 6.1 of the Fee Rule exempting Barrick Financeand BGI from the requirement in section 2.2 of the Fee Ruleto pay a participation fee;
AND UPON considering the Applicationand the recommendation of the staff of the Ontario SecuritiesCommission;
AND UPON the Applicant having representedto the Director as follows:
1. Barrick was formed by the amalgamationof three mining companies on July 14, 1984 under the BusinessCorporations Act (Ontario). Its head office is locatedat BCE Place, Canada Trust Tower, Suite 3700, 161 Bay Street,P.O. Box 212, Toronto, ON M5J 2S1.
2. The authorized capital of Barrick consistsof (i) an unlimited number of common shares, (ii) an unlimitednumber of first preferred shares, issuable in series of whichone has been designated as first preferred shares, seriesC special voting share, and (iii) an unlimited number of secondpreferred shares, issuable in series. As of May 31, 2003,Barrick had 540,496,013 common shares, one first preferredshare series C special voting share and no second preferredshares outstanding.
3. Barrick is a reporting issuer (or equivalent)in each of the provinces and territories of Canada and isnot on the list of reporting issuers in default in any ofthose jurisdictions.
4. The Barrick common shares are listed andposted for trading on the Toronto Stock Exchange, the NewYork Stock Exchange, the London Stock Exchange, the SwissExchange and the Paris Bourse.
5. BGI was incorporated on January 1, 1999under the laws of the Province of Ontario.
6. The authorized capital of BGI consistsof (i) an unlimited number of Class A common shares, (ii)an unlimited number of Class B common shares, (iii) an unlimitednumber of exchangeable shares ("Exchangeable Shares"),(iv) an unlimited number of third preference shares, issuablein series, of which 10,000,000 have been designated as thirdpreference shares, series 1, and (v) an unlimited number offourth preference shares. As of May 29, 2003, 100,000 ClassA common shares, 1,569,971 Exchangeable Shares (excludingshares held by Barrick and its affiliates), 103,986,397 ClassB common shares, no third preference shares and 277,775,266fourth preference shares were outstanding. All of BGI's outstandingshares, other than the Exchangeable Shares held by the public,are held by Barrick and its affiliates.
7. BGI is a reporting issuer (or equivalent)in Ontario, Quebec, British Columbia, Saskatchewan, Manitobaand Nova Scotia and is not on the list of reporting issuersin default in any of those jurisdictions.
8. BGI's material assets include Barrick'sinterest in the Eskay Creek Mine in British Columbia and itsinterest in the Hemlo operations in Ontario.
9. The Exchangeable Shares are listed andposted for trading on the Toronto Stock Exchange.
10. Each Exchangeable Share provides the holderthereof with the economic and voting equivalent, to the extentpracticable, of 0.53 Barrick common shares and the holdersof Exchangeable Shares receive the same continuous disclosureand other information that Barrick provides to holders ofBarrick common shares.
11. On September 18, 2001, Barrick obtainedan order under the mutual reliance review system exemptingBGI from, among other things, the requirement to issue a pressrelease and file a report upon the occurrence of a materialchange, to file and deliver interim and annual financial statementsand to file and deliver an information circular or analogousreport (the "BGI Continuous Disclosure Requirements"),subject to certain conditions. In connection with the filingby Barrick and BGI of a shelf prospectus, this order has beenvaried to permit BGI to issue debt securities guaranteed byBarrick to the public and to require the preparation of certainselected financial information concerning BGI or the inclusionof such selected financial information in the financial statementsof Barrick and the filing of such financial information onBGI's SEDAR profile following the first issuance of such debtsecurities.
12. Notwithstanding the filing of the shelfprospectus and the variation to the order, Barrick has nocurrent intention of accessing the capital markets in thefuture by issuing any further securities of BGI to the public.
13. Barrick Finance was incorporated on March21, 1997 under the laws of the State of Delaware.
14. The authorized capital of Barrick Financeconsists of 1,000 common shares. As of June 27, 2003, allof the issued and outstanding common shares of Barrick Financewere held by affiliates of Barrick.
15. Barrick Finance's primary purpose is thefinancing of certain of Barrick's other subsidiaries and affiliatesand Barrick Finance does not carry on any active operations.
16. The only securities of Barrick Financeheld by the public are US$500 million 7½% debenturesdue May 1, 2007, which were offered only in the United Statesand which are unconditionally guaranteed by Barrick. The debenturesare not listed or posted for trading on any exchange.
17. Barrick Finance is a reporting issuerin the Province of Ontario and is not on the list of reportingissuers in default in the Province of Ontario.
18. On July 15, 1997, Barrick obtained anorder exempting Barrick Finance from, among other things,the requirement to issue a press release and file a materialchange report under section 75 of the Securities Act(Ontario) (the "Act") and to file interim financialstatements and annual financial statements under sections77 and 78 of the Act (the "Barrick Finance ContinuousDisclosure Requirements"), subject to certain conditions.
19. Barrick has no intention of accessingthe capital of markets in the future by issuing any furthersecurities of Barrick Finance to the public.
AND UPON the Director being satisfiedthat to do so would not be prejudicial to the public interest;
IT IS THE DECISION of the Director, pursuantto section 6.1 of the Fee Rule, that Barrick Finance is exemptfrom the requirement in section 2.2 of the Fee Rule to pay aparticipation fee for each of its financial years, for so longas:
(a) Barrick Finance continues to be exemptfrom the Barrick Finance Continuous Disclosure Requirements,
(b) all of the equity securities of BarrickFinance continue to be held beneficially, directly or indirectly,by Barrick,
(c) Barrick is a reporting issuer in Ontario,
(d) Barrick has paid its participation feepursuant to section 2.2 of the Fee Rule, and in calculatingsuch fee has included the market value of each class or seriesof corporate debt of Barrick Finance outstanding at the relevanttime, and
(e) Barrick does not issue any further securitiesof Barrick Finance to the public,
provided further that upon any further issuanceof securities to the public of Barrick Finance, a participationfee shall be immediately paid by Barrick Finance in respectof the financial year during which such securities are issued(such fee to be pro rated to reflect the number of entire monthsremaining in such financial year) and in respect of subsequentfinancial years during which such securities remain outstanding;
AND IT IS THE FURTHER DECISION of theDirector, pursuant to Section 6.1 of the Fee Rule, that BGIis exempt from the requirement in section 2.2 of the Fee Ruleto pay a participation fee for each of its financial years,for so long as:
(a) BGI continues to be exempt from the BGIContinuous Disclosure Requirements,
(b) all of the equity securities of BGI (otherthan the Exchangeable Shares) continue to be held beneficially,directly or indirectly, by Barrick,
(c) Barrick is a reporting issuer in Ontario,
(d) Barrick has paid its participation feepursuant to section 2.2 of the Fee Rule, and in calculatingsuch fee, has included the number of Barrick common sharesissuable in respect of the number of Exchangeable Shares outstandingat the relevant time, and
(e) Barrick does not issue any further securitiesof BGI to the public,
provided further that upon the further issuanceof securities to the public of BGI, a participation fee shallbe immediately paid by BGI in respect of the financial yearduring which the securities are issued (such fee to be pro ratedto reflect the number of entire months remaining in such financialyear) and in respect of subsequent financial years during whichsuch securities remain outstanding.
July 31, 2003.
"Erez Blumberger"