By Facsimile: (416) 863-4592 and U.S. Mail
Michael Melanson January 7, 2005
Fraser Milner Casgrain LLP
1 First Canadian Place, 39th Floor
100 King Street West
Toronto, Ontario M5X1B2
Canada
(416) 863-4511
Re: Wheaton River Minerals Ltd.
Schedule TO-T filed on December 29, 2004
File No. 005-78729
Dear Mr. Melanson:
We have limited our review of the above referenced filings to
only the matters addressed herein. Please understand that the
purpose of our review process is to assist you in your compliance
with the applicable disclosure requirements and to enhance the
overall disclosure in your filing. We look forward to working
with
you in these respects. We welcome any questions you may have
about
our comments or on any other aspect of our review. Feel free to
call
us at the telephone numbers listed at the end of this letter.
Schedule TO-T Item 10. Financial Statements
1. We note that you have incorporated by reference the financial
statements for the year ended December 31, 2003 and the nine
months
ended September 25, 2004. Where financial statements are material
in
the context of an offer or where you incorporate by reference
financial statements found in other documents filed with the SEC,
we
require you to include in the document disseminated to investors
the
summary financial statements required by Item 1010(c) of
Regulation
M-A. See Instruction 6 to Item 10 of Schedule TO and Q&A 7 in
Section I.H of the Division of Corporation Finance`s Manual of
Publicly Available Telephone Interpretations (July 2001). Please
revise to include the summary financial statements in the offer
documents disseminated to investors and advise us of your
intentions
with regard to actual dissemination of the summary data to
investors.
2. Item 1010(a) requires the inclusion of the financial statements
for the last two fiscal years. It appears that you have
incorporated
by reference only the financial statements for the year ended
December 31, 2003. Please advise or revise to include the
required
financial statements.
3. Please amend the pro forma information required by Item 1010(b)
to
include the ratio of earnings to fixed charges as required by Item
1010(b)(2) and the Company`s book value per share pursuant to Item
1010(b)(3).
Schedule TO-T Item 13. Information Required by Schedule 13E-3
4. While you incorporate by reference the information set forth in
the take over bid circular and the letter of transmittal, any
inapplicability of item requirements should be stated. In this
respect, it appears that Item 13 is inapplicable and you should
disclose this accordingly.
Forward-Looking Statements, page (iii)
5. The safe harbor for forward-looking statements in the Private
Securities Litigation Reform Act of 1995 does not by its terms
apply
to statements made in connection with a tender offer. See Section
27A(b)(2)(C) of the Securities Act of 1933 and Section
21E(b)(2)(C)
of the Securities Exchange Act of 1934. Therefore, your reference
to
the defined term "forward-looking statements" within the meaning
of
the Securities Act and the Exchange Act is inappropriate. Please
delete the reference, or revise to make clear that the Reform Act
protections do not apply to statements made in the prospectus.
The Summary Term Sheet, page 1
Until What Time Can I Withdraw Previously Tendered Shares?
6. Please describe in more detail what you mean by the time you
"take
up" shares. We assume, for example, that you use take up to mean
acceptance.
Payment for Deposited Common Shares, page 11
7. We note that you will pay for tendered shares no later "that
the
earlier of three Business Days after the taking up of the Common
Shares and 10 days after the Expiry Time." What consideration was
given to whether such timing satisfies the prompt payment
requirements of Rule 14e-1(c)?
Conditions of the Offer, page 18
8. In our view, you may condition a tender offer on any number of
conditions, as long as they are described with reasonable
specificity, capable of some measure of objective verification,
and
outside of your control. In the first paragraph in this section,
the
phrase "regardless of the circumstances giving rise to any of the
conditions" implies that you may assert an offer condition even
when
the condition is "triggered" by your own action or inaction.
Please
revise in accordance with our position.
Payment for Deposited Common Shares, page 22
9. All conditions to an offer, other than those based on
governmental
approval, must be satisfied or waived prior to the expiration of
the
offer. We note that you have reserved the right to delay
acceptance
"in order to comply, in whole or in part, with any applicable
Law."
Please revise to clarify that only conditions based on
governmental
approval, rather than the compliance with any applicable law, will
survive expiration of the offer.
Circular, page 27
Documents incorporated by reference, page 28
10. Schedule TO does not permit such "forward" incorporation.
Therefore, please ensure that you amend the Schedule TO to
specifically reference the periodic reports you wish to
incorporate,
as they are filed.
Source of Funds, page 43
11. Please provide your list of expenses and disclose whether or
not
the Company has paid or will be responsible for payment of same
pursuant to Item 1007(c) of Regulation M-A.
Dealer Manager and Soliciting Dealer Group, page 57
12. We note that you will pay a fee to the dealer manager based on
each common share tendered. We object to fees paid to a dealer
manager based on tenders of subject securities it holds for its
own
account. Please indicate whether you intend to pay fees under
those
circumstances. If you do not, indicate how you will ensure that
you
do not pay fees under such circumstances. For example, what
mechanism will you use to determine who holds the tendered
securities
when calculating the fee owed to Griffiths McBurney Corp. and its
subagents?
Closing Comment
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the bidders are in possession of all
facts relating to their disclosure, they are responsible for the
accuracy and adequacy of the disclosures they have made.
In connection with responding to our comments, please
provide,
in writing, a statement from the bidders acknowledging that:
* the bidders are responsible for the adequacy and accuracy of the
disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the bidders may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in our review of your filing or in
response to our comments on your filing.
As appropriate, please amend your documents in response to
these comments. You may wish to provide us with marked copies of
the
amendment, if required, to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested supplemental information.
Detailed cover letters greatly facilitate our review. Please file
your cover letter on EDGAR. Please understand that we may have
additional comments after reviewing your amendment and responses
to
our comments. In addition, depending upon your response to these
comments, a supplement may need to be sent to security holders.
Please direct any questions to me at (202) 942-2903. You
may
also contact me via facsimile at (202) 942-9638. Please send all
correspondence to us at the following ZIP code: 20549-0303.
Very truly
yours,
Celeste M.
Murphy
Office of Mergers and
Acquisitions
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Michael Melanson
Fraser Milner Casgrain LLP
January 7, 2005
Page 4
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-0303
DIVISION OF
CORPORATION FINANCE