Securities Law & Instruments

Headnote

Parent reporting issuer (Parentco) proposes to file an amended and restated short form base shelf prospectus to add a wholly owned subsidiary (Subco) as a potential issuer of debt securities under the shelf prospectus -- Subco has no more than minimal operations that are independent of Parentco and functions essentially as a special purpose division of Parentco -- Parentco and Subco may issue from time to time certain debt securities under the shelf prospectus -- any debt securities issued by Subco will be fully, unconditionally and irrevocably guaranteed by Parentco -- application by Parentco and Subco for an order pursuant to section 13.1 of National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102) exempting Subco from the requirements of NI 51-102, and section 121(2)(a)(ii) of the Securities Act (Ontario), exempting each insider of Subco from the requirements of Part XXI of the Act -- relief granted on conditions substantially analogous to the conditions contained in the s. 13.4 of NI 51-102.

Applicable Ontario Statutory Provisions

Securities Act, R.S.O. 1990, c. S.5, as am., s. 121(2)(a)(ii).

Applicable Ontario Rules

National Instrument 51-102 Continuous Disclosure Obligations, ss. 13.1 and 13.4.

National Instrument 55-102 System for Electronic Disclosure by Insiders.

IN THE MATTER OF

THE SECURITIES ACT, R.S.O. 1990,

CHAPTER S.5, AS AMENDED (the "Act")

AND

IN THE MATTER OF

BARRICK GOLD CORPORATION

AND

BARRICK GOLD FINANCE COMPANY

 

DECISION DOCUMENT

(Section 13.1 of NI 51-102 and section 121(2)(a)(ii) of the Act)

WHEREAS upon the application of Barrick Gold Corporation ("Barrick") and its wholly-owned indirect subsidiaries, Barrick Gold Inc. ("BGI") and Barrick Gold Finance Company ("BGFC") (collectively, the "Filer") to the Ontario Securities Commission (the "Commission") for an order pursuant to

(i) section 13.1 of National Instrument 51-102 Continuous Disclosure Obligations ("NI 51-102") exempting BGFC from the requirements of NI 51-102, and

(ii) section 121(2)(a)(ii) of the Securities Act (Ontario) (the "Act"), exempting each insider of BGFC from the requirements of Part XXI of the Act, (together with NI 51-102, the "Legislation")

subject to certain terms and conditions;

AND WHEREAS upon considering the application and the recommendation of the staff of the Commission;

AND WHEREAS the Filer has represented to the Commission as follows:

1. Barrick was formed by the amalgamation of three mining companies on July 14, 1984 under the Business Corporations Act (Ontario). Its head office is located at BCE Place, Canada Trust Tower, Suite 3700, 161 Bay Street, P.O. Box 212, Toronto, ON M5J 2S1.

2. The authorized capital of Barrick consists of (i) an unlimited number of common shares, (ii) an unlimited number of first preferred shares, issuable in series of which one has been designated as first preferred shares, series C special voting share, and (iii) an unlimited number of second preferred shares, issuable in series. As of June 30, 2004, Barrick had 531,473,923 common shares, one first preferred share series C special voting share and no second preferred shares outstanding.

3. As at June 30, 2004, Barrick had approximately U.S. $696 million in long-term debt outstanding. All rated debt of Barrick, including the US$500,000,000 of redeemable non-convertible debentures issued by Barrick Gold Finance Inc., a wholly-owned subsidiary of Barrick, on April 22, 1997 and fully and unconditionally guaranteed by Barrick, is currently rated "A" by Standard & Poor's and "A3" by Moody's Investor Services.

4. Barrick is a reporting issuer (or equivalent) in each of the provinces and territories of Canada and is not on the list of reporting issuers in default in any of those jurisdictions.

5. The Barrick common shares are listed and posted for trading on the Toronto Stock Exchange, the New York Stock Exchange, the London Stock Exchange, the Swiss Exchange and the Paris Bourse.

6. BGFC is an unlimited liability company governed by the Companies Act (Nova Scotia).

7. BGFC is a wholly-owned indirect subsidiary of Barrick.

8. The authorized capital of BGFC consists of 100,000,000 common shares. As of June 30, 2004, 1,299,800 common shares were outstanding. All of BGFC's outstanding shares are held by Barrick and its affiliates.

9. BGFC is not currently a reporting issuer (or equivalent) in any Province or Territory of Canada.

10. BGFC has no more than minimal operations that are independent of Barrick and is an entity that functions as essentially as a special purpose division of Barrick.

11. BGFC proposes to file a preliminary short form base shelf prospectus (the "Preliminary Shelf Prospectus") and Barrick, BGI and BGFC propose to file an amended and restated short form base shelf prospectus (the "Amended and Restated Shelf Prospectus"), which will be a final short form base shelf prospectus for BGFC and will amend and restate the final short form base shelf prospectus filed on June 27, 2003 by Barrick and BGI, pursuant to National Instruments 44-101 and 44-102 (collectively, the "Shelf Requirements"), pursuant to which Amended and Restated Shelf Prospectus Barrick, BGI and BGFC may issue up to a fixed aggregate principal amount of debentures, notes and/or other similar evidences of indebtedness ("Debt Securities") from time to time over the period of effectiveness of the Amended and Restated Shelf Prospectus. Any Debt Securities so issued by BGFC will be fully, unconditionally and irrevocably guaranteed by Barrick as to payment of principal, interest and other amounts due thereunder.

12. In connection with any offering of Debt Securities (any such offering, an "Offering"):

(a) the Amended and Restated Shelf Prospectus and a prospectus supplement or supplements (collectively, the "Prospectus") will be prepared pursuant to the Shelf Requirements, with the disclosure required by:

(i) Item 4.1 of Form 44-103F3 being addressed by including the required disclosure with respect to Barrick only;

(ii) Item 7 of Form 44-101F3 being addressed by including the required disclosure with respect to Barrick only;

(iii) Item 12 of Form 44-101F3 being addressed by incorporating by reference Barrick's public disclosure documents, including Barrick's most recent annual report; and

(iv) Item 13 of Form 44-101F3 being addressed by incorporating by reference the audited annual financial statements of Barrick for the year ended December 31, 2003, including the note thereto which contains a summary of selected consolidated financial information for BGI, including information as to its consolidated revenues and other income, costs and expenses, income before taxes, net income, current assets, non-current assets, current liabilities and non-current liabilities;

(b) a separate application has been made to the Commission contemporaneously herewith and a decision granted permitting the variation from the requirements of Form 44-101F3 described in clauses (a)(i) through (a)(iv) above as they relate to BGFC in connection with the filing of the Amended and Restated Shelf Prospectus, and such relief was granted with respect to BGI in connection with the filing by BGI and Barrick of a final short form base shelf prospectus on June 27, 2003;

(c) the Prospectus will include all material disclosure required by the Shelf Requirements concerning Barrick and BGFC;

(d) the Prospectus will incorporate by reference Barrick's current and future public disclosure documents as required by Item 12 of Form 44-101F3 and will state that purchasers of BGFC Debt Securities will not receive separate continuous disclosure information regarding BGFC;

(e) Barrick will fully, unconditionally and irrevocably guarantee payment of the principal and interest on any BGFC Debt Securities, together with any other amounts that may be due under any provisions of the trust indenture relating to such BGFC Debt Securities;

(f) the Debt Securities will have an approved rating (as defined in National Instrument 44-101);

(g) Barrick will sign the Prospectus as issuer and credit supporter; and

(h) Barrick will continue to file with the securities regulatory authorities in each of the Jurisdictions all documents required to be filed by it under the Legislation.

AND WHEREAS the Commission is satisfied that the test contained in the Act that provides the Commission with the jurisdiction to make the Decision has been met;

IT IS ORDERED, pursuant to section 13.1 of NI 51-102, that BGFC be exempt from the requirements of NI 51-102 so long as

(a) Barrick remains a reporting issuer in Ontario;

(b) Barrick remains the indirect or direct beneficial owner of all the issued and outstanding voting securities in the capital of BGFC;

(c) BGFC continues to have only minimal operations that are independent of Barrick and is an entity that functions essentially as a special purpose division of Barrick;

(d) Barrick continues to comply with all timely and continuous disclosure filing requirements of the Legislation;

(e) BGFC does not issue any securities other than

(i) designated credit support securities (as defined in section 13.4 of NI 51-102) in respect of which Barrick is acting as credit supporter ("Designated Credit Support Securities"),

(ii) securities issued to Barrick or Barrick's affiliates, or

(iii) debt securities issued to banks, loan corporations, trust corporations, treasury branches, credit unions, insurance companies or other financial institutions;

(f) Barrick continues to unconditionally guarantee the BGFC Debt Securities and the Designated Credit Support Securities, if any;

(g) Barrick sends to all holders of BGFC Debt Securities (and any other Designated Credit Support Securities of BGFC that include debt) all disclosure material that would be required to be furnished to holders of non-convertible debt securities with an approved rating (as defined in NI 51-102) issued by Barrick, at the time and in the manner that such material would be required to be furnished to such holders of debt securities issued by Barrick; and

(h) Barrick sends to all holders of Designated Credit Support Securities that include preferred shares all disclosure material that would be required to be furnished to holders of non-convertible preferred shares of Barrick with an approved rating (as defined in NI 51-102), at the time and in the manner that such material would be required to be furnished to such holders of preferred shares issued by Barrick;

September 10, 2004.

"charlie MacCready"

AND IT IS FURTHER ORDERED, pursuant to section 121(2)(a)(ii) of the Act, that each insider of BGFC be exempt from the requirements of Part XXI of the Act and the requirement to file an insider profile under National Instrument 55-102 System for Electronic Disclosure by Insiders, so long as

(a) the insider does not receive, in the ordinary course, information as to material facts or material changes concerning Barrick before the material facts or material changes are generally disclosed;

(b) the insider is not an insider of Barrick in any capacity other than by virtue of being an insider of BGFC;

(c) Barrick remains the indirect or direct beneficial owner of all the issued and outstanding voting securities in the capital of BGFC;

(d) Barrick remains a reporting issuer in Ontario and continues to comply with all timely and continuous disclosure filing requirements of the Legislation; and

(e) BGFC does not issue any securities other than

(i) Designated Credit Support Securities,

(ii) securities issued to Barrick or Barrick's affiliates, or

(iii) debt securities issued to banks, loan corporations, trust corporations, treasury branches, credit unions, insurance companies or other financial institutions;

September 10, 2004.

"Wendell S. Wigle"
"Robert L. Shirriff"