SUPPORT AGREEMENT between BARRICK GOLD CORPORATION - and - PLACER DOME INC. December 22, 2005
EXHIBIT
2
between
▇▇▇▇▇▇▇
GOLD CORPORATION
-
and -
PLACER
DOME INC.
December
22,
2005
TABLE
OF CONTENTS
ARTICLE 1
INTERPRETATION
|
1.1
|
Definitions
|
2 |
|
1.2
|
Construction
and Interpretation
|
6 |
ARTICLE 2
THE
OFFER
|
2.1
|
The
Offer
|
7 |
|
2.2
|
Fairness
Opinion and Placer Dome Support for the Offer
|
10 |
|
2.3
|
Outstanding
Stock Options
|
11 |
|
2.4
|
Directors
of Placer Dome
|
12 |
|
2.5
|
Subsequent
Acquisition Transaction
|
12 |
|
2.6
|
Directors
of Barrick
|
13 |
ARTICLE 3
REPRESENTATIONS
AND WARRANTIES OF BARRICK
ARTICLE 4
REPRESENTATIONS
AND WARRANTIES OF PLACER DOME
ARTICLE 5
CONDUCT
OF BUSINESS
|
5.1
|
Conduct
of Business by Placer Dome
|
13 |
|
5.2
|
Conduct
of Business by Barrick
|
16 |
ARTICLE 6
OTHER
COVENANTS
|
6.1
|
Further
Assurances
|
17 |
|
6.2
|
No
Solicitations, Opportunity to Match, Etc.
|
17 |
|
6.3
|
Notification
of Certain Matters
|
22 |
|
6.4
|
Investigation
by Barrick
|
22 |
|
6.5
|
Investigation
by Placer Dome
|
23 |
|
6.6
|
Officers'
and Directors' Insurance and Indemnification
|
23 |
|
6.7
|
Required
Securities Laws Approvals
|
23 |
|
6.8
|
Reorganization
|
24 |
ARTICLE 7
TERMINATION,
AMENDMENT AND WAIVER
|
7.1
|
Termination
|
24 |
|
7.2
|
Termination
Fee
|
26 |
|
7.3
|
Effect
of Termination
|
27 |
|
7.4
|
Amendment
|
28 |
|
7.5
|
Waiver
|
28 |
ARTICLE 8
GENERAL
PROVISIONS
|
8.1
|
Advisors
|
28 |
|
8.2
|
Public
Statements
|
28 |
|
8.3
|
Notices
|
29 |
|
8.4
|
Currency
|
30 |
|
8.5
|
Severability
|
30 |
|
8.6
|
Entire
Agreement, Assignment and Governing Law
|
30 |
|
8.7
|
Counterparts
|
30 |
THIS
AGREEMENT made the 22nd day
of
December, 2005, BETWEEN:
▇▇▇▇▇▇▇
GOLD CORPORATION,
a
corporation existing under the laws of the Province of Ontario
(hereinafter
called "Barrick"),
- and -
PLACER
DOME INC.,
a
corporation existing under the laws of the Canada,
(hereinafter
called "Placer
Dome").
WHEREAS
Barrick has made an offer, as amended and extended by notice to ▇▇▇▇▇▇▇'▇
depositary under the Offer dated December 15,
2005,
(the "Original
Offer")
to
acquire all of the Shares (as hereinafter defined) for, at the election of
the
holder of Shares, $20.50 in cash or 0.7518 of a Barrick Common Share (as
hereinafter defined) plus $0.05 in cash per Share, subject in each case to
pro
ration;
AND
WHEREAS Barrick is prepared to amend the terms of the Original Offer on the
terms and subject to the conditions contained herein to provide for the
acquisition of all of the Shares for, at the election of each holder of Shares,
$22.50 in cash or 0.8269 of a Barrick Common Share plus $0.05 in cash per Share,
subject in each case to pro ration;
AND
WHEREAS the Placer Dome Board of Directors (as hereinafter defined) has
determined, after receiving financial and legal advice and following the receipt
and review of recommendations from its special committee, that it would be
advisable and in the best interests of Placer Dome and the Shareholders (as
hereinafter defined) of the Shares (other than Barrick and its affiliates)
for
the Placer Dome Board of Directors to co-operate with Barrick, take all
reasonable action to support the Offer (as hereinafter defined) and to recommend
acceptance of the Offer to Shareholders in writing, all on the terms and subject
to the conditions contained herein;
NOW
THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual
covenants and agreements hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged
by
each party, the parties hereby covenant and agree as follows:
ARTICLE 1
INTERPRETATION
| 1.1 |
Definitions
|
In
this
Agreement (including the Schedules hereto), the following terms shall have
the
following meanings, and grammatical variations shall have the respective
corresponding meanings:
| (a) |
"Acquisition Proposal"
has the meaning set out in Section 6.2(a)(i);
|
| (b) |
"Applicable Securities Laws"
has the meaning set out in Section 2.1(b);
|
| (c) |
"Barrick"
means ▇▇▇▇▇▇▇ Gold Corporation;
|
| (d) |
"Barrick
Common Shares"
means common shares in the capital of
Barrick;
|
| (e) |
"Barrick
Percentage"
has the meaning set out in Section 2.4;
|
| (f) |
"Barrick
Public Documents"
has the meaning set out in Section 4
of
Schedule B;
|
| (g) |
"Barrick
Subsidiaries"
means Subsidiaries of Barrick;
|
| (h) |
"business
day"
has the meaning given to it in the Securities
Act
(Ontario);
|
| (i) |
"CBCA"
means the Canada
Business Corporations Act,
as amended;
|
| (j) |
"Change
of Control Beneficiary"
has the meaning set out in Section 9(a)
of
Schedule C;
|
| (k) |
"Circular"
means the take-over bid Circular dated November 10, 2005 in respect
of the
Original Offer;
|
| (l) |
"Common Share"
means a common share in the capital of Placer
Dome;
|
| (m) |
"Compulsory Acquisition"
has the meaning set out in Section 2.5;
|
| (n) |
"Confidentiality
Agreement"
has the meaning set out in Section 6.4;
|
| (o) |
"Convertible
Debentures"
means the $230 million of unsecured 20-year senior convertible debentures
of Placer Dome due 2023 with interest payable at 2.75% per
year;
|
| (p) |
"Directors' Circular"
has the meaning set out in Section 2.1(h)(vi);
|
| (q) |
"Effective Time"
has the meaning set out in Section 5.1;
|
2
| (r) |
"Encumbrance"
includes any mortgage, pledge, assignment, charge, lien, claim, security
interest, adverse interest, other third person interest or encumbrance
of
any kind, whether contingent or absolute, and any agreement, option,
right
or privilege (whether by Law, contract or otherwise) capable of becoming
any of the foregoing;
|
| (s) |
"Equivalent
Insurance"
has the meaning set out in Section 6.6;
|
| (t) |
"Expiry Time"
has the meaning set out in Section 2.1(e);
|
| (u) |
"Form
of Confidentiality
Agreement"
has the meaning set out in Section 11
of
Schedule C;
|
| (v) |
"fully
diluted basis"
means, with respect to the number of outstanding Shares at any time,
the
number of Shares that would be outstanding if all rights to acquire
Shares
were exercised, other than those which are not, and cannot in accordance
with their terms, become exercisable within 120 days following the
Expiry
Time, but including, for the purposes of this calculation, all Shares
issuable upon the exercise of Placer Dome Options, whether vested
or
unvested, and excluding Shares issuable upon the exercise of the
SRP
Rights;
|
| (w) |
"Governmental
Entity"
means:
|
| (i) |
any
supranational body or organization (such as the European Union and
the
EFTA Surveillance Authority), nation, government, state, province,
country, territory, municipality, quasi-government, administrative,
judicial or regulatory authority, agency, board, body, bureau, commission,
instrumentality, court or tribunal or any political subdivision thereof,
or any central bank (or similar monetary or regulatory authority)
thereof,
any taxing authority, any ministry or department or agency of any
of the
foregoing;
|
| (ii) |
any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government;
and
|
| (iii) |
any
corporation or other entity owned or controlled, through stock or
capital
ownership or otherwise, by any of such entities or other
bodies;
|
| (x) |
"Latest
Mailing Time"
has the meaning set out in Section 2.1(b);
|
| (y) |
"Laws"
means any applicable laws including supranational, national, provincial,
state, municipal and local civil, commercial, banking, securities,
tax,
personal and real property, security, mining, environmental, water,
energy, investment, property ownership, land use and zoning, sanitary,
occupational health and safety laws, treaties, statutes, ordinances,
judgments, decrees, injunctions, writs, certificates and orders,
by-laws,
rules, regulations, ordinances, protocols, codes, guidelines, policies,
notices, directions or other requirements of any Governmental
Entity;
|
3
| (z) |
"Material Adverse Effect"
means, in respect of any Person, an effect that is, or would reasonably
be
expected to be, material and adverse to the business, properties,
assets,
liabilities (including any contingent liabilities that may arise
through
outstanding, pending or threatened litigation or otherwise),
capitalization, condition (financial or otherwise), operations or
results
of operations of that Person and its Subsidiaries and material joint
ventures taken as a whole, other than any
effect:
|
| (i) |
relating
to the Canadian and United States economies, political conditions
or
securities markets in general;
|
| (ii) |
affecting
the mining industry in general;
|
| (iii) |
relating
to a change in the market trading price of shares of that Person,
either:
|
| (A) |
related
to this Agreement and the Offer or the announcement thereof,
or
|
| (B) |
related
to such a change in the market trading price primarily resulting
from a
change, effect, event or occurrence excluded from this definition
of
Material Adverse Effect under clauses (i), (ii), (iv) or (v)
hereof;
|
| (iv) |
relating
to any of the principal markets served by that Person's business
generally
or shortages or price changes with respect to raw materials, metals
or
other products used or sold by that Person;
or
|
| (v) |
relating
to any generally applicable change in applicable Laws or regulations
(other than orders, judgments or decrees against that Person any
of its
Subsidiaries and material joint ventures) or in US
GAAP;
|
provided,
however, that such effect referred to in clause (i), (ii), (iv) or (v) above
does not primarily relate only to (or have the effect of primarily relating
only
to) that Person and its Subsidiaries and material joint ventures, taken as
a
whole, or disproportionately adversely affect that Person and its Subsidiaries
and material joint ventures taken
as
a whole, compared to other companies of similar size operating in the industry
in which that Person and its Subsidiaries and material joint
ventures operate;
| (aa) |
"material
joint venture"
of a Person means a joint venture in which the Person participates,
directly or indirectly, whether as a partner, shareholder, interestholder
or otherwise, that is material to the financial condition, operations
or
prospects of the Person on a consolidated
basis;
|
| (bb) |
"Minimum
Tender Condition"
has the meaning set out in item (a) of Schedule
A;
|
4
| (cc) |
"Notice
of Variation"
means the notice of variation to be mailed to Shareholders in accordance
with this Agreement amending the Original
Offer;
|
| (dd) |
"NYSE"
means the New York Stock Exchange;
|
| (ee) |
"Offer"
means the Original Offer, as amended on the terms and subject to
the
conditions contained herein, and includes any further amendments
to, or
extensions of, such offer made in accordance with the terms of this
Agreement;
|
| (ff) |
"Original Offer"
has the meaning set out in the recitals to this
Agreement;
|
| (gg) |
"Outside Date"
has the meaning set out in Section 7.1(e);
|
| (hh) |
"Person"
includes an individual, general partnership, limited partnership,
corporation, company, limited liability company, unincorporated
organization, trust, trustee, executor, administrator or other legal
representative;
|
| (ii) |
"Placer
Dome"
means Placer Dome Inc.;
|
| (jj) |
"Placer
Dome Board of Directors"
means the board of directors of Placer
Dome;
|
| (kk) |
"Placer
Dome Options"
means outstanding options to acquire Shares of Placer Dome under
the
Placer Dome Stock Option Plans;
|
| (ll) |
"Placer
Dome Public Documents"
has the meaning set out in Section 4
of
Schedule C;
|
| (mm) |
"Placer
Dome Stock Option Plans"
means Placer Dome's 1987 Stock Option Plan and 1993 Directors Stock
Option
Plan, the 1996 Long Term Equity Incentive Plan of ▇▇▇▇▇▇▇▇ Gold
Corporation, the obligations of which were assumed by Placer Dome,
and any
other plan, agreement or arrangement which provides for the issuance
of
options to acquire Shares;
|
| (nn) |
"Placer
Dome Subsidiaries"
means Subsidiaries of Placer Dome;
|
| (oo) |
"Pre-Acquisition
Reorganization"
has the meaning set out in Section 6.8;
|
| (pp) |
"Share"
means a Common Share (including those that are subject to CHESS depositary
interests and international depositary receipts) and the accompanying
SRP
Right;
|
| (qq) |
"Shareholder Rights Plan"
means the shareholder rights plan agreement dated as of February
26, 2004
entered into between Placer Dome and CIBC Mellon Trust Company, as
rights
agent;
|
| (rr) |
"Shareholders"
means the holders of Shares;
|
| (ss) |
"Special Committee"
means the special committee of the Placer Dome Board of Directors
formed
on November 2, 2005;
|
5
| (tt) |
"SRP Right"
means a right issued pursuant to the Shareholder Rights
Plan;
|
| (uu) |
"Subsequent Acquisition Transaction"
has the meaning set out in Section 2.5;
|
| (vv) |
"Subsidiary"
has the meaning given to that term in the Securities
Act
(Ontario);
|
| (ww) |
"Superior Proposal"
has the meaning set out in Section 6.2(a);
|
| (xx) |
"Taxes"
means, with respect to any Person, all supranational, federal, state,
local, provincial, branch or other taxes, including income, gross
receipts, windfall profits, value added, severance, ad valorem, property,
capital, net worth, production, sales, use, licence, excise, franchise,
employment, environmental taxes, sales taxes, use taxes, value added
taxes, transfer taxes, withholding or similar taxes, payroll taxes,
employment taxes, pension plan premiums, severance taxes, social
security
premiums, workers' compensation premiums, employment insurance or
compensation premiums, stamp taxes, occupation taxes, premium taxes,
mining taxes, alternative or add-on minimum taxes, goods and services
tax,
customs duties or other taxes of any kind whatsoever imposed or charged
by
any Governmental Entity, together with any interest, penalties, or
additions with respect thereto and any interest in respect of such
additions or penalties;
|
| (yy) |
"Termination Fee"
has the meaning set out in Section 7.2(a);
|
| (zz) |
"Termination Fee Event"
has the meaning set out in Section 7.2(a);
|
| (aaa) |
"TSX"
means the Toronto Stock Exchange;
and
|
| (bbb) |
"US
GAAP"
means United States generally accepted accounting principles or
interpretations thereof.
|
| 1.2 |
Construction
and Interpretation
|
In
this
Agreement, unless otherwise expressly stated or the context otherwise
requires:
| (a) |
references
to "herein", "hereby", "hereunder", "hereof" and similar expressions
are
references to this Agreement and not to any particular Section of
or
Schedule to this Agreement;
|
| (b) |
references
to a "Section" or a "Schedule" are references to a Section or Schedule
of
this Agreement;
|
| (c) |
words
importing the singular shall include the plural and vice versa, and
words
importing gender shall include the masculine, feminine and neuter
genders;
|
| (d) |
the
use of headings is for convenience of reference only and shall not
affect
the construction or interpretation
hereof;
|
6
| (e) |
wherever
the term "includes" or "including" is used, it shall be deemed to
mean
"includes, without limitation" or "including, without limitation",
respectively; and
|
| (f) |
references
to the knowledge of a party means the actual knowledge of the senior
officers of such party.
|
ARTICLE 2
THE
OFFER
| 2.1 |
The
Offer
|
(a) Barrick
shall promptly publicly announce its intention to amend the Original Offer,
subject to the terms and conditions set forth below, to increase the
consideration payable thereunder to, at the election of a Shareholder,
$22.50
in cash
or 0.8269 of a Barrick Common Share plus $0.05 in cash, in each case subject
to
pro ration as described in the Original Offer, provided that the maximum cash
consideration will be $1,343,618,621 and the maximum share consideration will
be
333,180,480 Barrick Common Shares (in each case calculated on a fully diluted
basis). Barrick will continue to offer the "Rollover Option", as defined and
described in the Original Offer. The conditions of the Original Offer will
be
replaced by the conditions set out in Schedule A. The Notice of Variation shall
also contain an amendment to Section 13(e) of the Offer portion of the Circular
to replace the phrase "in its sole discretion" with the phrase "in its
reasonable discretion". Barrick will not be required to make the Offer in any
jurisdiction where it would be illegal to do so.
(b) Barrick
shall mail the Notice of Variation in accordance with the Securities
Act
(Ontario) and regulations thereunder and all other applicable securities laws,
including the applicable securities laws of the United States, (collectively,
"Applicable
Securities Laws")
to
each registered holder of Shares as soon as reasonably practicable and, in
any
event, not later than 11:59 p.m. (Toronto time) on January 5, 2006 (such time
on
such date being referred to herein as the "Latest
Mailing Time");
provided, however, that if the mailing of the Notice of Variation is delayed
by
reason of Placer Dome not having provided to Barrick the Directors' Circular
referred to in Section 2.1(h)(vi)
as well
as any information pertaining to Placer Dome that is necessary for the
completion of the Notice of Variation by Barrick, or not having provided Barrick
with such other assistance in the preparation of the Notice of Variation as
may
be reasonably requested by Barrick in order that the Notice of Variation comply
in all material respects with Applicable Securities Laws, then the Latest
Mailing Time shall be extended to 11:59 p.m. on the fifth business day following
the date on which Placer Dome supplies such necessary documents, information
or
other assistance.
(c) Prior
to
the printing of the Notice of Variation, Barrick shall provide Placer Dome
and
its counsel with a reasonable opportunity to review and comment on it,
recognizing that whether or not such comments are appropriate will be determined
by Barrick, acting reasonably.
(d) Barrick
agrees that, provided all of the conditions to the Offer set out in Schedule
A
hereto shall have been satisfied or waived, Barrick shall take up and pay for
all of the Shares tendered under the Offer promptly and in any event no later
than two business days following the
7
time
at
which it becomes entitled to take up such Shares under the Offer pursuant to
applicable Laws.
(e) The
Offer
shall be made in accordance with Applicable Securities Laws and shall expire
not
earlier than midnight (Toronto time) on January 19, 2006 and not later than
the
20th
day
following the Latest Mailing Time, subject to the right of Barrick to extend
from time to time the period during which Shares may be deposited under the
Offer (such time, as it may be extended, is referred to herein as the
"Expiry
Time").
Barrick shall use all reasonable efforts to consummate the Offer, subject to
the
terms and conditions hereof and thereof.
(f) It
is
understood and agreed that Barrick may, in its sole discretion, modify or waive
any term or condition of the Offer; provided that Barrick shall not, without
the
prior consent of Placer Dome, increase or decrease the Minimum Tender Condition,
impose additional conditions to the Offer, decrease the consideration per Share,
decrease the maximum cash consideration or maximum share consideration, decrease
the number of Shares in respect of which the Offer is made, change the form
of
consideration payable under the Offer (other than to increase the total
consideration per Share and/or add additional consideration) or otherwise vary
the Offer or any terms or conditions thereof (which for greater certainty,
subject to Section 2.1(g),
does
not include a waiver of a condition) in a manner which is adverse to the
Shareholders.
(g) Barrick
may waive the Minimum Tender Condition only if: (i) there shall have been
validly deposited pursuant to the Offer and not withdrawn at the Expiry Time
that number of Shares which constitutes at least 60% of the Shares outstanding
calculated on a fully diluted basis, or (ii) Barrick obtains such relief from
the United States Securities and Exchange Commission as may be necessary to
allow Barrick to take up Shares on more than one date and there shall have
been
validly deposited pursuant to the Offer and not withdrawn at an expiry date
of
the Offer that number of Shares which constitutes at least 50% of the Shares
outstanding calculated on a fully diluted basis. In the circumstances described
in clause (ii), subject to Applicable Securities Laws, Barrick will use its
commercially reasonable efforts to extend the time for deposits to the Offer
after any such take-up to permit Shareholders holding, in the aggregate, 66⅔% of
the Shares outstanding calculated on a fully diluted basis to accept the
Offer.
(h) The
obligation of Barrick to amend the Original Offer is conditional on the prior
satisfaction of the following conditions, all of which conditions are included
for the sole benefit of Barrick and any or all of which may be waived by Barrick
in whole or in part in its sole discretion (other than the condition set out
in
Section 2.1(h)(iv)
below,
which must be waived if Barrick has failed to use its reasonable best efforts
to
obtain such assurances, and the condition set out in Section 2.1(h)(ix)
below,
which may be waived only with the consent of Placer Dome) without prejudice
to
any other right it may have under this Agreement and which conditions shall
be
deemed to have been waived by the making of the amended Offer:
| (i) |
the
obligations of Barrick hereunder shall not have been terminated pursuant
to Section 7.1;
|
| (ii) |
the
Barrick Common Shares to be issued to Shareholders shall have been
conditionally approved for listing on the TSX and Barrick shall not
have
|
8
|
been
advised that such Barrick Common Shares would not be approved for
listing,
subject to notice of issuance, by the NYSE;
|
| (iii) |
no
change, effect, event, circumstance, occurrence or state of facts
(other
than a change, effect, event, circumstance, occurrence or state of
facts
caused by Barrick, a Barrick Subsidiary or any Person acting jointly
or in
concert with Barrick) shall have occurred that would render it impossible
for one or more of the conditions set out on Schedule A hereto to
be
satisfied;
|
| (iv) |
assurances
satisfactory to Barrick, acting reasonably, shall have been received
by
Barrick that all waivers, rulings or orders necessary for Barrick
to amend
the Original Offer and to mail to the Shareholders the Notice of
Variation
have been or will be obtained from all applicable securities commissions
or other regulatory authorities;
|
| (v) |
the
Placer Dome Board of Directors shall have unanimously recommended
that
Shareholders accept the Offer and shall not have withdrawn such
recommendation or changed, modified or qualified such recommendation
in a
manner that has substantially the same effect or taken any other
action or
made any other public statement in connection with the Offer inconsistent
with such recommendation;
|
| (vi) |
the
Placer Dome Board of Directors shall have prepared and approved in
final
form, printed for distribution to Shareholders and delivered to Barrick
for mailing with the Notice of Variation an amended directors' circular
(the "Directors'
Circular")
unanimously recommending that Shareholders accept the Offer;
|
| (vii) |
Placer
Dome shall have complied in all respects with its covenants in Section
6.2
and in all material respects with its other covenants in this
Agreement;
|
| (viii) |
all
representations and warranties of Placer Dome set forth in this Agreement
shall be true and correct in all material respects at the time of
the
making of the amended Offer; and
|
| (ix) |
no
cease trade order, injunction or other prohibition at Law shall exist
against Barrick making the Offer or taking up or paying for Shares
deposited under the Offer.
|
Prior
to
printing the Directors' Circular, Placer Dome shall provide Barrick with a
reasonable opportunity to review and comment on it, recognizing that whether
or
not such comments are appropriate will be determined by Placer Dome, acting
reasonably. The Directors' Circular shall include a copy of the written fairness
opinion of each of CIBC World Markets Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and ▇▇▇▇▇▇▇, Sachs & Co. referred to below.
9
| 2.2 |
Fairness
Opinion and Placer Dome Support for the
Offer
|
(a) Placer
Dome represents and warrants to and in favour of Barrick and acknowledges that
Barrick is relying upon such representations and warranties in entering into
this Agreement, that, as of the date hereof:
| (i) |
CIBC
World Markets Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇▇,
Sachs & Co. have each delivered an oral opinion to the Special
Committee and the Placer Dome Board of Directors to the effect that
the
consideration to be received under the Offer is fair from a financial
point of view to all Shareholders (other than Barrick);
and
|
| (ii) |
the
Placer Dome Board of Directors, upon consultation with its financial
and
legal advisors and on receipt of a recommendation of the Special
Committee, has unanimously determined that the Offer is fair to all
Shareholders (other than Barrick), that the Offer is in the best
interests
of Placer Dome and the Shareholders, and accordingly, has unanimously
approved the entering into of this Agreement and the making of a
recommendation that Shareholders (other than Barrick) accept the
Offer.
Each member of the Placer Dome Board of Directors has indicated their
intention to deposit the Shares owned by them pursuant to the Offer
and
has agreed that the press release to be issued by Barrick announcing
the
Offer may so reference such statement of intention and that references
to
such intention may be made in the Notice of Variation and other documents
relating to the Offer.
|
(b) Placer
Dome shall prepare and make available for distribution contemporaneously and
together with the Notice of Variation, in both the English and French languages
as circumstances may require, sufficient copies of the Directors' Circular,
prepared in all material respects in accordance with all Applicable Securities
Laws, which shall reflect the foregoing determinations and recommendation.
Placer Dome shall take all reasonable actions to support the Offer and ensure
the success of the Offer in accordance with this Agreement and Placer Dome
shall
provide Barrick with any information pertaining to Placer Dome, the Placer
Dome
Subsidiaries and the Placer Dome material joint ventures that is necessary
for
the completion of the Notice of Variation by Barrick, and shall provide Barrick
with such other assistance in the preparation of the Notice of Variation as
may
be reasonably requested by Barrick. Notwithstanding the foregoing, if after
the
date hereof: (i) any representation or warranty made by Barrick in this
Agreement shall be untrue or incorrect (without giving effect to, applying
or
taking into consideration any materiality or Material Adverse Effect
qualification already contained within such representation or warranty) where
such inaccuracies in the representations and warranties, individually or in
the
aggregate, would reasonably be expected to have a Material Adverse Effect in
respect of Barrick, (ii) the Placer Dome Board of Directors shall become aware
of any untrue statement of a material fact, or an omission to state a material
fact that is required to be stated or that is necessary to make a statement
not
misleading in light of the circumstances in which it was made, in the Circular
or Notice of Variation relating to Barrick, or (iii) the Placer Dome Board
of
Directors is otherwise required in the exercise of its fiduciary duties to
do
so, then the Placer Dome Board of Directors shall be entitled not to make such
a
positive
10
recommendation,
to make a negative recommendation or to withdraw, modify or change any
recommendation regarding the Offer which it has previously made, provided that
the Placer Dome Board of Directors, acting in good faith and upon the advice
of
their legal and financial advisors where appropriate, shall first have
determined that the making of a positive recommendation, the failure to make
a
negative recommendation or the failure to withdraw, modify or change any
recommendation would be inconsistent with the fiduciary duties of the Placer
Dome Board of Directors and otherwise in accordance with the terms of this
Agreement.
(c) Barrick
shall provide Placer Dome with any information pertaining to Barrick,
the
Barrick Subsidiaries and the Barrick material joint ventures that is necessary
for the completion of the Directors' Circular by Placer Dome, and shall provide
Placer Dome with such other assistance in the preparation of the Directors'
Circular as may be reasonably requested by Placer Dome.
(d) Placer
Dome agrees that it will continue to defer separation of the SRP Rights with
respect to the Offer until no earlier than immediately after the Expiry Time.
Placer Dome agrees that, with effect at 7:30 pm (Toronto time) on the first
scheduled expiry date of the Offer upon which Barrick elects to take up Shares
deposited under the Offer, it shall irrevocably waive or suspend the operation
of or otherwise render the Shareholder Rights Plan inoperative against the
Offer, any Compulsory Acquisition and any Subsequent Acquisition Transaction.
Subject to the foregoing, unless required by the terms of the Shareholder Rights
Plan with respect to a competing take-over bid or a final and non-appealable
order of a court having jurisdiction or an order of the British Columbia
Securities Commission, Placer Dome shall not redeem the SRP Rights or otherwise
waive, amend, suspend the operation of or terminate the Shareholder Rights
Plan
without the prior written consent of Barrick.
| 2.3 |
Outstanding
Stock Options
|
(a) Subject
to the receipt of all required approvals of any Governmental Entity, Placer
Dome
will make such amendments to the Placer Dome Stock Option Plans and take all
such other steps as may be necessary or desirable to allow all persons holding
Placer Dome Options, who may do so under applicable Laws, to exercise their
Placer Dome Options: (i) on an accelerated vesting basis, conditional on Barrick
taking up and paying for Shares under the Offer; and (ii) to effect a cashless
exercise of their Placer Dome Options for the purpose of tendering to the Offer
all Shares issued in connection with such cashless exercise, and, if desired,
to
elect the Rollover Option in respect of such Shares so tendered, conditional
upon Barrick taking up and paying for Shares under the Offer, all on terms
and
in a manner acceptable to Barrick.
(b) Barrick
acknowledges and agrees that:
| (i) |
Barrick
shall agree with Placer Dome to tendering arrangements in respect
of the
Offer in order to facilitate the conditional exercise of the Placer
Dome
Options and tender of the Shares to be issued as a result of such
conditional exercise (including providing for the ability of holders
of
Placer Dome Options to tender the Shares issuable upon the exercise
of
such Placer Dome Options on the basis of guaranteed deliveries);
and
|
11
| (ii) |
(A)
holders of Placer Dome Options will be permitted to tender the Shares
issuable upon the exercise thereof and for such purpose to exercise
their
exercisable Placer Dome Options, conditional upon Barrick taking
up and
paying for the Shares under the Offer, which Placer Dome Options
shall be
deemed to have been exercised immediately prior to the take-up of
Shares
and (B) all Shares that are to be issued pursuant to any such conditional
exercise shall be accepted as validly tendered under the Offer, provided
that the holders of such Placer Dome Options indicate that the Shares
are
tendered pursuant to the Offer and otherwise validly accept the Offer
in
accordance with its terms with respect to such
Shares.
|
(c) With
respect to the Placer Dome Options not exercised at or before the Expiry Date,
the parties agree to cooperate to ensure that all such outstanding Placer Dome
Options become options to acquire Barrick Common Shares (on a tax-deferred
basis
for purposes of the Income
Tax Act (Canada))
whereby each such Placer Dome Option shall become an option to acquire 0.8287
of
a Barrick Common Share, rounded down to the nearest whole number, at an exercise
price per Barrick Common Share equal to the exercise price per Share of that
Placer Dome Option immediately prior to the time the Placer Dome Option became
an option to acquire Barrick Common Shares divided by 0.8287, rounded up to
the
nearest whole cent.
| 2.4 |
Directors
of
Placer Dome
|
Placer
Dome acknowledges that promptly upon the purchase by Barrick of such number
of
Shares as represents at least a majority of the then outstanding Shares on
a
fully diluted basis and from time to time thereafter, Barrick shall be entitled
to designate such number of members of the Placer Dome Board of Directors,
and
any committees thereof, as is proportionate to the percentage of the outstanding
Shares owned from time to time by Barrick (the "Barrick
Percentage")
and
Placer Dome shall not frustrate ▇▇▇▇▇▇▇'▇ attempts to do so and covenants to
co-operate with Barrick, subject to all applicable Laws, to enable ▇▇▇▇▇▇▇'▇
designees to be elected or appointed to the Placer Dome Board of Directors,
and
any committee thereof, and to constitute the Barrick Percentage of the Placer
Dome Board of Directors, including at the request of Barrick, by its reasonable
best efforts to increase the size of the Placer Dome Board of Directors and
to
secure the resignations of such number of directors as Placer Dome may
determine, in reasonable consultation with Barrick.
| 2.5 |
Subsequent
Acquisition
Transaction
|
If,
within 120 days after the date of the Offer, the Offer has been accepted by
holders of not less than 90% of the outstanding Shares as at the Expiry Time,
Barrick may, to the extent possible, acquire (a "Compulsory
Acquisition")
the
remainder of the Shares from those Shareholders who have not accepted the Offer
pursuant to Section 206 of the CBCA. If that statutory right of acquisition
is
not available or Barrick chooses not to avail itself of such statutory right
of
acquisition, Barrick will use its commercially reasonable efforts to pursue
other means of acquiring the remaining Shares not tendered to the Offer. Placer
Dome agrees that, in the event Barrick takes up and pays for Shares under the
Offer representing at least a simple majority of the outstanding Shares
(calculated on a fully diluted basis as at the Expiry Time), it will assist
Barrick in connection with any proposed amalgamation, statutory arrangement,
12
amendment
to articles, consolidation, capital reorganization or other transaction
involving Placer Dome and Barrick or a Barrick Subsidiary that Barrick may,
in
its sole discretion, undertake to pursue (a "Subsequent
Acquisition Transaction")
to
acquire the remaining Shares, provided that the consideration per Share offered
in connection with the Subsequent Acquisition Transaction is at least equivalent
in value to the consideration per Share offered under the Offer and further
provided that for this purpose, in calculating the value of the consideration
offered in any Subsequent Acquisition Transaction, each Barrick Common Share
shall be deemed to be at least equivalent in value to each Barrick Common Share
offered under the Offer.
| 2.6 |
Directors
of Barrick
|
Barrick
agrees to use all reasonable efforts to cause its board of directors to pass
such resolutions and to take such other actions as may be required in order
that
three new directors, who will be directors of Placer Dome at such time as they
are to be nominated or appointed, will be appointed to the board of directors
of
Barrick as soon as practicable, and in any event within 30 days after the
Effective Time. The individuals proposed by Placer Dome shall be acceptable
to
Barrick, acting reasonably.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BARRICK
REPRESENTATIONS AND WARRANTIES OF BARRICK
Barrick
hereby makes to Placer Dome the representations and warranties set out in
Schedule B to this Agreement, and acknowledges that Placer Dome is relying
upon
these representations and warranties in connection with the entering into of
this Agreement.
ARTICLE 4
REPRESENTATIONS
AND WARRANTIES OF PLACER DOME
Placer
Dome hereby makes to Barrick the representations and warranties set out in
Schedule C to this Agreement, and acknowledges that Barrick is relying upon
these representations and warranties in connection with the entering into of
this Agreement.
ARTICLE 5
CONDUCT
OF BUSINESS
| 5.1 |
Conduct
of Business by Placer
Dome
|
Placer
Dome covenants and agrees that, prior to the earlier of the time of the
appointment or election to the Placer Dome Board of Directors of persons
designated by Barrick who represent a majority of the directors of Placer Dome
(the "Effective
Time")
and
the termination of this Agreement, except with the prior written consent of
Barrick (not to be unreasonably withheld or delayed) or as otherwise expressly
contemplated or permitted by this Agreement or as disclosed in writing to
Barrick prior to the execution and delivery of this Agreement, Placer Dome
will,
and will cause each of the Placer Dome Subsidiaries to:
(a) conduct
its and their respective businesses in the ordinary course consistent with
past
practice in all material respects and to use reasonable best efforts to preserve
intact its present business organization and goodwill, to preserve intact their
respective real property
13
interests,
mining leases, mining concessions, mining claims, exploration permits or
prospecting permits or other property, mineral or proprietary interests or
rights in good standing, to keep available the services of its officers and
employees as a group and to maintain satisfactory relationships with suppliers,
distributors, employees and others having business relationships with
them;
(b) not
split, consolidate or reclassify any of its outstanding shares nor undertake
any
other capital reorganization (except as required by Section 6.8),
nor
declare, set aside or pay any dividends on or make any other distributions
on or
in respect of its outstanding shares (other than semi-annual cash dividends
on
the Shares in accordance with Placer Dome's past practice,
including as to the timing of the declaration and payment of any such dividend),
nor reduce capital in respect of its outstanding Shares;
(c) not
amend
its articles or by-laws or the terms of any of its outstanding securities,
including any outstanding indebtedness and credit facilities;
(d) not
issue
any securities (other than the issuance of Shares upon the exercise of currently
outstanding Placer Dome Options or Convertible Debentures in accordance with
their terms), or redeem, offer to purchase or purchase any of its outstanding
securities;
(e) not
authorize, agree to issue, issue or award any stock options under any existing
plan of Placer Dome or otherwise;
(f) except
for changes in compensation for employees, other than officers and directors,
in
the ordinary course of business consistent with past practice and after prior
consultation with Barrick and except for the changes disclosed to Barrick in
writing prior to the execution and delivery of this Agreement, not enter into,
create, declare, adopt, amend, vary, modify or take any other action with
respect to any bonus, target bonus, profit sharing, incentive, salary or other
compensation, equity based award, pension, retirement, deferred compensation,
severance, change in control, employment or other employee benefit plan,
agreement, award or arrangement for the benefit or welfare of any officer,
director or employee, or similar rights or other benefits;
(g) except
as
contemplated in any existing contractual commitments, not acquire or commit
to
acquire any capital assets or group of related capital assets (through one
or
more related or unrelated acquisitions), or incur, or commit to, capital
expenditures, having a value and/or cost in excess of $50 million in the
aggregate;
(h) except
as
contemplated in any existing contractual commitments, not sell, lease, option,
encumber or otherwise dispose of, or commit to sell, lease option, encumber
or
otherwise dispose of, any capital assets or group of related capital assets
(through one or more related or unrelated transactions) having a value in excess
of $10 million in the aggregate;
(i) not
incur
or commit to incur any indebtedness for borrowed money or any other material
liability, except for the borrowing of working capital in the ordinary course
of
business and consistent with past practice under existing credit facilities
disclosed in the Placer Dome Public Documents, or guarantee, endorse or
otherwise become responsible for any other material
14
liability,
obligation or indemnity or the obligations of any other Person or other business
organization;
(j) not
make
any changes to existing accounting policies other than as required by applicable
Law or by US GAAP;
(k) not
pay,
discharge or satisfy any material claims, liabilities or obligations other
than
the payment, discharge or satisfaction, in the ordinary course of business
consistent with past practice, of liabilities reflected or reserved against
in
Placer Dome's financial statements or incurred in the ordinary course of
business consistent with past practice;
(l) not
commence or settle any litigation, proceeding, claim, action, assessment or
investigation involving Placer Dome or a Placer Dome Subsidiary before any
Governmental Entity, other than in the ordinary course of business;
(m) not
waive, release or amend in any material respect (i) any existing contractual
rights in respect of any Placer Dome material joint ventures or material mineral
properties, or (ii) any other material licence, lease, contract or other
document, other than in the ordinary course of business consistent with past
practice;
(n) not
enter
into any interest rate, currency, equity or commodity swaps, ▇▇▇▇▇▇, derivatives
or other similar financial instruments, other than in the ordinary course of
business consistent with past practice;
(o) not
acquire or agree to acquire (by merger, amalgamation, acquisition of stock
or
assets or otherwise) any Person or other business organization or division
or
make any investment either by purchase of shares or securities, contributions
of
capital (other than to wholly-owned subsidiaries of Placer Dome), property
transfer or purchase of any property or assets of any other Person, except
for
purchases of inventory or equipment in the ordinary course of business
consistent with past practice, and except for capital expenditures permitted
by
Section 5.1(g);
(p) duly
and
timely file all material forms, reports, schedules, statements and other
documents required to be filed pursuant to any applicable corporate Laws or
Applicable Securities Laws;
(q) promptly
notify Barrick orally and in writing of (i) any material adverse change (within
the meaning of the Securities
Act
(Ontario)), on a consolidated basis, in the operation of its businesses or
in
the operation of its properties and of any material governmental or third party
complaints, investigations or hearings (or communications indicating that the
same may be contemplated); and (ii) the occurrence, or failure to occur, of
any
event or state of facts which occurrence or failure would or would be likely
to
(x) cause any of the representations or warranties of Placer Dome contained
herein to be untrue or inaccurate (without giving effect to, applying or taking
into consideration any materiality or Material Adverse Effect qualification
already contained within such representation or warranty) in any material
respect; or (y) result in the failure in any material respect of Placer Dome
to
comply with or satisfy any covenant, condition or agreement to be complied
with
or satisfied prior to the Effective Time;
15
(r) except
as
contemplated in Section 6.2,
not
enter into any transaction or perform any act which might interfere with or
be
materially inconsistent with the successful completion of the acquisition of
Shares by Barrick pursuant to the Offer or the successful completion of a
Compulsory Acquisition or Subsequent Acquisition Transaction or which would
render, or which may reasonably be expected to render, inaccurate in any
material respect any of Placer Dome's representations and warranties set forth
in this Agreement;
(s) not
undertake any reorganization of Placer Dome and its Subsidiaries or enter into
any transaction or series of transactions that would have the effect of
preventing Barrick from obtaining a full tax cost "bump" pursuant to paragraph
88(1)(d) of the Income
Tax Act
(Canada)
in respect of the shares of the Placer Dome Subsidiaries, including Placer
Dome
(CLA) Limited, and other non-depreciable capital property directly owned by
Placer Dome on October 30, 2005; and
(t) not
announce an intention, enter into any formal or informal agreement, or otherwise
make a commitment to do any of the things prohibited by any of
the
foregoing subparagraphs.
| 5.2 |
Conduct
of Business by Barrick
|
Barrick
covenants and agrees that, prior to the earlier of the Effective Time and the
termination of this Agreement, except with the prior written consent of Placer
Dome (not to be unreasonably withheld or delayed) or as otherwise expressly
contemplated or permitted by this Agreement, Barrick will, and will cause each
of the Barrick Subsidiaries to:
(a) conduct
its and their respective businesses in the ordinary course consistent with
past
practice in all material respects and to use reasonable best efforts to preserve
intact its present business organization and goodwill, to preserve intact their
respective real property interests, mining leases, mining concessions, mining
claims, exploration permits or prospecting permits or other property, mineral
or
proprietary interests or rights in good standing, to keep available the services
of its officers and employees as a group and to maintain satisfactory
relationships with suppliers, distributors, employees and others having business
relationships with them;
(b) not
split, consolidate or reclassify any of its outstanding shares nor undertake
any
other capital reorganization, nor declare, set aside or pay any dividends on
or
make any other distributions on or in respect of its outstanding shares (other
than cash dividends on the Barrick Common Shares in accordance with past
practice, including as to the timing of the declaration and payment of any
such
dividend), nor reduce capital in respect of its outstanding Shares;
(c) duly
and
timely file all material forms, reports, schedules, statements and other
documents required to be filed pursuant to any applicable corporate Laws or
Applicable Securities Laws;
(d) promptly
notify Placer Dome orally and in writing of (i) any material adverse change
(within the meaning of the Securities
Act
(Ontario)), on a consolidated basis, in the operation of its businesses or
in
the operation of its properties and of any material governmental or third party
complaints, investigations or hearings (or communications indicating that the
same
16
may
be
contemplated); and (ii) the occurrence, or failure to occur, of any event or
state of facts which occurrence or failure would or would be likely to (x)
cause
any of the representations or warranties of Barrick contained herein to be
untrue or inaccurate (without giving effect to, applying or taking into
consideration any materiality or Material Adverse Effect qualification already
contained within such representation or warranty) in any material respect;
or
(y) result in the failure in any material respect of Barrick to comply with
or
satisfy any covenant, condition or agreement to be complied with or satisfied
prior to the Effective Time;
(e) not
enter
into any transaction or perform any act which might interfere with or be
materially inconsistent with the successful completion of the acquisition of
Shares by Barrick pursuant to the Offer or the successful completion of a
Compulsory Acquisition or Subsequent Acquisition Transaction or which would
render, or which may reasonably be expected to render, inaccurate in any
material respect any of ▇▇▇▇▇▇▇'▇ representations and warranties set forth
in
this Agreement; and
(f) not
announce an intention, enter into any formal or informal agreement, or otherwise
make a commitment to do any of the things prohibited by any of the foregoing
subparagraphs.
ARTICLE 6
OTHER
COVENANTS
| 6.1 |
Further
Assurances
|
Subject
to the terms and conditions of this Agreement, each party hereto agrees to
cooperate in good faith and use all reasonable efforts to take, or cause to
be
taken, all action and to do, or cause to be done, all things necessary, proper
or advisable (a) to consummate and make effective as promptly as is practicable
the transactions contemplated by the Offer and this Agreement, (b) for the
discharge by each party hereto of its respective obligations under this
Agreement and the Offer, including its obligations under Applicable Securities
Laws, (c) to facilitate the completion by Barrick of the sale of certain assets
and transfer of certain liabilities of Placer Dome to Goldcorp Inc. as described
in the Original Offer, and (d) to obtain all necessary waivers, consents and
approvals and to effect all necessary registrations and filings, including
filings under applicable Laws and submissions of information requested by
Governmental Entities in connection with transactions contemplated by the Offer
and this Agreement and the aforementioned transaction involving Goldcorp Inc.,
including in each case the execution and delivery of such documents as the
other
party hereto may reasonably require.
| 6.2 |
No
Solicitations, Opportunity to Match,
Etc.
|
(a) On
and
after the date hereof, except as otherwise provided in this Agreement, Placer
Dome shall not, and shall cause each of the Placer Dome Subsidiaries not to,
directly or indirectly, through any officer, director, employee, representative
(including for greater certainty any financial or other advisors) or agent
of
Placer Dome or any Placer Dome Subsidiary:
| (i) |
solicit,
assist, initiate, encourage or otherwise facilitate (including by
way of
furnishing non-public information, permitting any visit to any facilities
or properties of Placer Dome or any Placer Dome Subsidiary or Placer
|
17
| Dome material joint venture (to the extent subject to Placer Dome's control), including material mineral properties, or entering into any form of written or oral agreement, arrangement or understanding) any inquiries, proposals or offers regarding (A) any merger, take-over bid, amalgamation, plan of arrangement, business combination, consolidation, recapitalization, liquidation or winding-up in respect of Placer Dome or any Placer Dome Subsidiary; (B) any sale or acquisition of all or a material portion of the assets of Placer Dome on a consolidated basis; (C) any sale or acquisition of all or a material portion of Placer Dome's Shares or the shares of any Placer Dome Subsidiary; (D) any sale by Placer Dome or any Placer Dome Subsidiary of an interest in any material joint venture or material mineral property of Placer Dome; (E) any similar business combination or transaction, of or involving Placer Dome or any of the Placer Dome Subsidiaries, other than with Barrick; or (F) any proposal or offer to, or public announcement of an intention to do, any of the foregoing from any Person other than Barrick (an "Acquisition Proposal"); |
| (ii) |
engage
in any discussions or negotiations regarding, or provide any confidential
information with respect to, any Acquisition Proposal provided
that for
greater certainty, Placer Dome may advise any Person making an
unsolicited
Acquisition Proposal that such Acquisition Proposal does not constitute
a
Superior Proposal when the Placer Dome Board of Directors has so
determined;
|
| (iii) |
except
as permitted by this Agreement, withdraw, modify or qualify, or propose
publicly to withdraw, modify or qualify, in any manner adverse to
Barrick,
the approval or recommendation of the Placer Dome Board of Directors
or
any committee thereof of this Agreement or the
Offer;
|
| (iv) |
approve
or recommend, or propose publicly to approve or recommend, any Acquisition
Proposal; or
|
| (v) |
accept
or enter into, or publicly propose to accept or enter into, any letter
of
intent, agreement in principle, agreement, arrangement or undertaking
related to any Acquisition
Proposal,
|
provided,
however, that nothing contained in this Section 6.2(a)
or any
other provision of this Agreement shall prevent the Placer Dome Board of
Directors from, and the Placer Dome Board of Directors shall be permitted
to:
|
(X)
|
withdraw,
modify or qualify (or propose to withdraw, modify or qualify) in
any
manner adverse to Barrick the approval or recommendation of the Offer;
or
|
18
|
(Y)
|
engage
in discussions or negotiations with, respond to or provide information
pursuant to Section 6.2(d)
below to, any Person in response to an Acquisition Proposal made
by any
such Person,
|
if
and
only to the extent that: (A) it has received an unsolicited bona fide written
Acquisition Proposal from such Person subsequent to the date hereof (i) to
purchase or otherwise acquire, directly or indirectly, by means of a merger,
take-over bid, amalgamation, plan of arrangement, business combination or
similar transaction, all of the Shares, or all or substantially all of the
assets of Placer Dome and the Placer Dome Subsidiaries, and offering or making
available to all Shareholders the same consideration in form and amount per
Share to be purchased or otherwise acquired; (ii) in respect of which any
required financing to complete such Acquisition Proposal has been demonstrated
to the satisfaction of the Placer Dome Board of Directors, acting in good faith
(after receipt of advice from its financial advisors and outside legal counsel),
will be obtained, (iii) that is not subject to any due diligence and/or access
condition which would allow access to the books, records, personnel or
properties of Placer Dome, the Placer Dome Subsidiaries or the Placer Dome
material joint ventures beyond 5:00 p.m. (Toronto time) on the third day after
which access is first afforded to the third party making the Acquisition
Proposal (provided, however, that the foregoing shall not restrict the ability
of such third party to continue to review information provided to it by Placer
Dome during such three day period); and (iv) that the Placer Dome Board of
Directors has determined in good faith (after consultation with its financial
advisors and with its outside legal counsel) is reasonably capable of completion
without undue delay taking into account all legal, financial, regulatory and
other aspects of such Acquisition Proposal and the party making such Acquisition
Proposal and such Acquisition Proposal would, if consummated in accordance
with
its terms (but not assuming away any risk of non-completion), result in a
transaction more favourable financially to the Shareholders than the Offer
(including any adjustment to the terms and conditions of the Offer proposed
by
Barrick pursuant to Section 6.2(g)
below,
and taking into account the long-term value and synergies anticipated to be
realized as a result of the combination of Barrick and Placer Dome) (any such
Acquisition Proposal being referred to herein as a "Superior
Proposal");
(B)
in the case of Section 6.2(a)(X)
above, Placer Dome shall have complied with all other requirements of Section
6.2(f)
below;
and (C) the Placer Dome Board of Directors, after consultation with outside
legal counsel, determines in good faith that the failure to take such action
would be inconsistent with its fiduciary duties.
(b) Placer
Dome will immediately cease and cause to be terminated any existing
solicitation, discussion or negotiation with any Person (other than Barrick)
by
Placer Dome or any Placer Dome Subsidiary or any of its or their officers,
directors, employees, representatives or agents with respect to any potential
Acquisition Proposal, whether or not initiated by Placer Dome or any Placer
Dome
Subsidiaries or any of its or their officers, directors, employees,
representatives or agents, and, in connection therewith, Placer Dome will
discontinue access to any data rooms (virtual or otherwise). Placer Dome shall
not release any third party from any confidentiality agreement or standstill
agreement (except to allow such party to propose an Acquisition Proposal),
and,
except as specifically required by the provisions of the Shareholder Rights
Plan, shall not waive the application of the Shareholder Rights Plan in favour
of any third party, provided that the foregoing shall not prevent the Placer
Dome Board of Directors from considering and accepting any new Acquisition
Proposal that is determined to be a Superior Proposal that might be made by
any
such third party, provided that the remaining provisions of
19
this
Agreement are complied with. Within 15 business days from the date hereof,
Placer Dome shall request the return or destruction of all information provided
to any third parties who have entered into a confidentiality agreement with
Placer Dome relating to any potential Acquisition Proposal and shall use all
reasonable efforts to ensure that such requests are honoured in accordance
with
the terms of such confidentiality agreements.
(c) From
and
after the date of this Agreement, Placer Dome shall promptly (and in any event
within 24 hours after it has received any proposal, inquiry, offer or request)
notify Barrick, at first orally and then in writing, of any proposal, inquiry,
offer (or any amendment thereto) or request relating to or constituting a bona
fide Acquisition Proposal, any request for discussions or negotiations, and/or
any request for non-public information relating to Placer Dome or any Placer
Dome Subsidiary or Placer Dome material joint venture or material mineral
property of which Placer Dome's directors, officers, employees, representatives
or agents are or become aware, or any amendments to the foregoing. Such notice
shall include a description of the terms and conditions of, and the identity
of
the Person making, any proposal, inquiry, offer (including any amendment
thereto) or request, and shall include copies of any such proposal, inquiry,
offer or request or any amendment to any of the foregoing. Placer Dome shall
also provide such other details of the proposal, inquiry, offer or request,
or
any amendment to the foregoing, as Barrick may reasonably request. Placer Dome
shall keep Barrick promptly and fully informed of the status, including any
change to the material terms, of any such proposal, inquiry, offer or request,
or any amendment to the foregoing, and will respond promptly to all inquiries
by
Barrick with respect thereto.
(d) If
Placer
Dome receives a request for material non-public information from a party who,
on
an unsolicited basis, proposes to Placer Dome a bona
fide
Acquisition Proposal and (x) the Placer Dome Board of Directors determines,
in
good faith, after the receipt of advice from its financial advisors that such
Acquisition Proposal would, if consummated in accordance with its terms, result
in a transaction more favourable financially to the Shareholders than the Offer;
and (y) in the opinion of the Placer Dome Board of Directors, acting in good
faith and on advice from their outside legal advisors, the failure to provide
such party with access to information regarding Placer Dome would be
inconsistent with the fiduciary duties of the Placer Dome Board of Directors,
then, and only in such case, Placer Dome may provide such party with access
to
information regarding Placer Dome, subject to the execution of a confidentiality
agreement which is substantially in the form of the Form of Confidentiality
Agreement, provided however that Placer Dome sends a copy of any such
confidentiality agreement to Barrick promptly upon its execution and Barrick
is
provided with a list of or copies of the information provided to such person
and
is immediately provided with access to similar information to which such person
was provided.
(e) Placer
Dome shall ensure that its officers, directors, employees, representatives
and
agents, and the Placer Dome Subsidiaries and their officers, directors,
employees, representatives and agents, are aware of the provisions of Sections
6.2(a)
to
6.2(d)
hereof
and
Placer Dome shall be responsible for any breach of this Section 6.2
by such
officers, directors, employees, representatives or agents.
20
(f) Placer
Dome shall not accept, approve or recommend, nor enter into any agreement (other
than a confidentiality agreement contemplated by Section 6.2(d))
relating to, an Acquisition Proposal unless:
| (i) |
the
Acquisition Proposal constitutes a Superior
Proposal;
|
| (ii) |
Placer
Dome has complied with Sections 6.2(a)
through 6.2(g),
inclusive;
|
| (iii) |
Placer
Dome has provided Barrick with notice in writing that there is a
Superior
Proposal together with all documentation related to and detailing
the
Superior Proposal (including a copy of the confidentiality agreement
between Placer Dome and the Person making the Superior Proposal if
not
previously delivered) at least five business days prior to the date
on
which the Placer Dome Board of Directors proposes to accept, approve,
recommend or to enter into any agreement relating to such Superior
Proposal;
|
| (iv) |
five
business days shall have elapsed from the later of the date Barrick
received the notice referred to in Section 6.2(f)(iii)
from Placer Dome and the date Barrick received a copy of the notice
in
respect of the Acquisition Proposal and, if Barrick has proposed
to amend
the terms of the Offer in accordance with Section 6.2(g),
the Placer Dome Board of Directors (after receiving advice from its
financial advisors and outside legal counsel) shall have determined
in
good faith that the Acquisition Proposal is a Superior Proposal compared
to the proposed amendment to the terms of the Offer by
Barrick;
|
| (v) |
Placer
Dome concurrently terminates this Agreement pursuant to Section
7.1(h);
and
|
| (vi) |
Placer
Dome has previously, or concurrently will have, paid to Barrick the
Termination Fee.
|
(g) Placer
Dome acknowledges and agrees that, during the five business day period referred
to in Section 6.2(f)(iii)
and
Section 6.2(f)(iv)
or such
longer period as Placer Dome may approve for such purpose, Barrick shall have
the opportunity, but not the obligation, to propose to amend the terms of the
Offer. The Placer Dome Board of Directors will review any proposal by Barrick
to
amend the terms of the Offer in order to determine, in good faith in the
exercise of its fiduciary duties and consistent with Section 6.2(a),
whether
▇▇▇▇▇▇▇'▇ proposal to amend the Offer would result in the Acquisition Proposal
not being a Superior Proposal compared to the proposed amendment to the terms
of
the Offer.
The
Placer Dome Board of Directors shall promptly reaffirm its recommendation of
the
Offer by press release after: (x) any Acquisition Proposal (which is determined
not to be a Superior Proposal) is publicly announced or made; or (y) the Placer
Dome Board of Directors determines that a proposed amendment to the terms of
the
Offer would result in the Acquisition Proposal not being a Superior Proposal,
and Barrick has so amended the terms of the Offer. Barrick and its counsel
shall
be given a reasonable opportunity to review and comment on the form and content
21
of
any
such press release, recognizing that whether or not such comments are
appropriate will be determined by Placer Dome, acting reasonably. Such press
release shall state that the Placer Dome Board of Directors has determined
that
the Acquisition Proposal is not a Superior Proposal.
Nothing
in this Agreement shall prevent the Placer Dome Board of Directors from
responding through a directors' circular or otherwise as required by Applicable
Securities Laws to an Acquisition Proposal that it determines is not a Superior
Proposal. Barrick and its counsel shall be given a reasonable opportunity to
review and comment on the form and content of any such directors' circular,
recognizing that whether or not such comments are appropriate will be determined
by Placer Dome, acting reasonably.
Placer
Dome also acknowledges and agrees that each successive modification of any
Acquisition Proposal shall constitute a new Acquisition Proposal for purposes
of
this Section 6.2.
| 6.3 |
Notification
of Certain Matters
|
Each
party shall give prompt notice to the other of: (a) the occurrence or failure
to
occur of any event, which occurrence or failure would cause or may cause any
representation or warranty on its part contained in this Agreement to be untrue
or inaccurate in any material respect at any time from the date hereof to the
Effective Time; and (b) any failure of such party, or any officer, director,
employee, representative or agent thereof, to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder.
| 6.4 |
Investigation
by Barrick
|
Upon
reasonable notice, and subject to the terms of a confidentiality agreement
to be
entered into between Placer Dome and Barrick contemporaneously with the entering
into of this Agreement (the "Confidentiality
Agreement"),
Placer Dome agrees to provide Barrick and its representatives with reasonable
access (without disruption to the conduct of Placer Dome's business) during
normal business hours to all books, records, information, corporate charts,
tax
documents, filings, memoranda, working papers and files and all other materials
in its possession and control, including material contracts and joint venture
agreements, and access to the personnel of Placer Dome and the Placer Dome
Subsidiaries on an as reasonably requested basis as well as reasonable access
to
the properties of Placer Dome and the Placer Dome Subsidiaries in order to
allow
Barrick to conduct such investigations as Barrick may consider necessary or
advisable to confirm the accuracy of Placer Dome's representations and
warranties, for strategic planning and integration, for the structuring of
any
Pre-Acquisition Reorganization and for any other reasons reasonably relating
to
the combination of Placer Dome and Barrick, and further agrees to assist Barrick
in all reasonable ways in any such due diligence investigations which Barrick
may wish to conduct. Nothing in the foregoing or any other provision of this
Agreement shall require Placer Dome to disclose information which it is
prohibited from disclosing pursuant to a written confidentiality agreement
or
confidentiality provision of an agreement with a third party or to provide
Barrick with access to any property where Placer Dome is contractually or
legally prohibited from doing so. Any such investigation by Barrick and its
advisors shall not mitigate, diminish or affect the representations and
warranties of Placer Dome contained in this Agreement or any document or
certificate given pursuant hereto.
22
| 6.5 |
Investigation
by Placer Dome
|
Upon
reasonable notice, and subject to the terms of the Confidentiality Agreement,
Barrick agrees to provide Placer Dome and its representatives with reasonable
access (without disruption to the conduct of ▇▇▇▇▇▇▇'▇ business) during normal
business hours to all books, records, information, corporate charts, tax
documents, filings, memoranda, working papers and files and all other materials
in its possession and control, including material contracts and joint venture
agreements, and access to the personnel of Barrick and the Barrick Subsidiaries
on an as reasonably requested basis as well as reasonable access to the
properties of Barrick and the Barrick Subsidiaries in order to allow Placer
Dome
to conduct such investigations as Placer Dome may consider necessary or
advisable to confirm the accuracy of ▇▇▇▇▇▇▇'▇ representations and warranties.
Nothing in the foregoing or any other provision of this Agreement shall require
Barrick to disclose information which it is prohibited from disclosing pursuant
to a written confidentiality agreement or confidentiality provision of an
agreement with a third party or to provide Placer Dome with access to any
property where Barrick is contractually or legally prohibited from doing so.
Any
such investigation by Placer Dome and its advisors shall not mitigate, diminish
or affect the representations and warranties of Barrick contained in this
Agreement or any document or certificate given pursuant hereto
| 6.6 |
Officers'
and Directors' Insurance and
Indemnification
|
From
and
after the Effective Date, Barrick agrees that for the period from the Expiry
Time until six years after the Expiry Time, Barrick will cause Placer Dome
or
any successor to Placer Dome to maintain Placer Dome's current directors' and
officers' insurance policy or a policy reasonably equivalent subject in either
case to terms and conditions no less advantageous to the directors and officers
of Placer Dome than those contained in the policy in effect on the date hereof
("Equivalent
Insurance"),
for
all present and former directors and officers of Placer Dome and the Placer
Dome
Subsidiaries, covering claims made prior to or within six years after the Expiry
Time. Alternatively, Placer Dome or Barrick may purchase as an extension to
Placer Dome's current insurance policies, pre-paid non-cancellable run-off
directors' and officers' liability insurance providing such coverage for such
persons on terms comparable to those contained in Placer Dome's current
insurance policies. Placer Dome reasonably estimates the purchase price of
any
such policy which may be purchased by Placer Dome prior to the Effective Time
to
be approximately $4.5 million. From and after the Effective Date, Barrick shall,
and shall cause Placer Dome (or its successor) to, indemnify the current and
former directors and officers of Placer Dome and the Placer Dome Subsidiaries
to
the fullest extent to which Barrick and Placer Dome are permitted to indemnify
such officers and directors under their respective articles, by-laws, applicable
Law and contracts of indemnity.
| 6.7 |
Required
Securities Laws
Approvals
|
Barrick
will promptly take such action, including obtaining any exemption orders,
consents or approvals or filing any such documents, as may be required under
Applicable Securities Laws to permit Barrick to make the Offer and perform
▇▇▇▇▇▇▇'▇ other obligations hereunder, and Placer Dome shall cooperate in good
faith in connection with any such action by Barrick.
23
| 6.8 |
Reorganization
|
Placer
Dome agrees that, upon request by Barrick, Placer Dome shall (i) effect such
reorganizations of its business, operations and assets or such other
transactions as Barrick may request, acting reasonably (each a "Pre-Acquisition
Reorganization")
and
(ii) co-operate with Barrick and its advisors in order to determine the nature
of the Pre-Acquisition Reorganizations that might be undertaken and the manner
in which they might most effectively be undertaken; provided that the
Pre-Acquisition Reorganizations are not prejudicial to Placer Dome in any
material respect and (A) do not result in any breach by Placer Dome of (i)
any
existing contract or commitment of Placer Dome; or (ii) any Law; or (B) would
not reasonably be expected to impede or delay ▇▇▇▇▇▇▇'▇ ability to take up
and
pay for the Shares tendered to the Offer. Barrick shall provide written notice
to Placer Dome of any proposed Pre-Acquisition Reorganization at least five
business days prior to the Expiry Time. Upon receipt of such notice, Barrick
and
Placer Dome shall work co-operatively and use commercially reasonable efforts
to
prepare prior to the Expiry Time all documentation necessary and do all such
other acts and things as are necessary to give effect to such Pre-Acquisition
Reorganization. Barrick agrees to waive any breach of a representation, warranty
or covenant by Placer Dome where such breach is a result of an action taken
by
Placer Dome in good faith pursuant to a request by Barrick in accordance with
this Section 6.8.
The
completion of any such Pre-Acquisition Reorganization shall be subject to the
satisfaction or waiver by Barrick of the conditions to the Offer set forth
in
Schedule A and shall be effected immediately prior to any take-up by Barrick
of
Shares tendered to the Offer. If Barrick does not take up and pay for the Shares
tendered to the Offer, Barrick shall indemnify Placer Dome for any and all
losses, costs and expenses, including reasonable legal fees and disbursements,
incurred in connection with any proposed Pre-Acquisition
Reorganization.
ARTICLE 7
TERMINATION,
AMENDMENT AND WAIVER
| 7.1 |
Termination
|
This
Agreement may be terminated at any time prior to the Effective
Time:
(a) by
mutual
written consent of Barrick and Placer Dome;
(b) by
Placer
Dome, if Barrick does not mail the Notice of Variation by the Latest Mailing
Time;
(c) by
Barrick on or after the Latest Mailing Time, if any condition to amending the
Offer for ▇▇▇▇▇▇▇'▇ benefit is not satisfied or waived by such date other than
as a result of ▇▇▇▇▇▇▇'▇ default hereunder;
(d) by
Barrick if the Minimum Tender Condition or any other condition of the Offer
shall not be satisfied or waived at the Expiry Time of the Offer, as such Expiry
Time may be extended by Barrick in its sole discretion pursuant hereto, and
Barrick shall not elect to waive such condition to the extent permitted by
this
Agreement;
24
(e) by
Barrick or Placer Dome, if Barrick does not take up and pay for the Shares
deposited under the Offer by a date that is 60 days following the date of the
mailing of the Notice of Variation (the "Outside
Date"),
otherwise than as a result of the material breach by such party of any material
covenant or obligation under this Agreement or as a result of any representation
or warranty made by such party in this Agreement being untrue or incorrect
(without giving effect to, applying or taking into consideration any materiality
or Material Adverse Effect qualification already contained within such
representation or warranty) where such inaccuracies in the representations
and
warranties, individually or in the aggregate, would reasonably be expected
to
have a Material Adverse Effect in respect of such party; provided, however,
that
if ▇▇▇▇▇▇▇'▇ take up and payment for Shares deposited under the Offer is delayed
by (i) an injunction or order made by a Governmental Entity of competent
jurisdiction, or (ii) Barrick not having obtained any waiver, consent or
approval of any Governmental Entity which is necessary to permit Barrick to
take
up and pay for Shares deposited under the Offer, then, provided that such
injunction or order is being contested or appealed or such waiver, consent
or
approval is being actively sought, as applicable, this Agreement shall not
be
terminated by Placer Dome pursuant to this Section 7.1(e)
until
the earlier of (A) the 120th day after the Notice of Variation is mailed and
(B)
the fifth business day following the date on which such injunction or order
ceases to be in effect or such waiver, consent or approval is obtained, as
applicable;
(f) by
either
Placer Dome or Barrick, if the other party is in material default of a material
covenant or obligation under this Agreement or if any representation or warranty
made by the other party in this Agreement shall have been at the date hereof
or
shall have become untrue or incorrect (without giving effect to, applying or
taking into consideration any materiality or Material Adverse Effect
qualification already contained within such representation or warranty) where
such inaccuracies in the representations and warranties, individually or in
the
aggregate, would reasonably be expected to have a Material Adverse Effect in
respect of such other party, and such default or inaccuracy is not curable
or,
if curable, is not cured by the earlier of the date which is 30 days from the
date of written notice of such breach and the Expiry Time;
(g) by
Barrick, if: (i) the Placer Dome Board of Directors or any committee thereof
fails to publicly recommend or reaffirm its approval of the Offer within two
calendar days of any written request by Barrick when required to do so pursuant
to Section 6.2(g) (or, in the event that the Offer shall be scheduled to expire
within such two calendar day period, prior to the scheduled expiry of the
Offer), (ii) the Placer Dome Board of Directors or any committee thereof
withdraws, modifies, changes or qualifies its approval or recommendation of
this
Agreement or the Offer in any manner adverse to Barrick; (iii) the Placer Dome
Board of Directors or any committee thereof recommends or approves or publicly
proposes to recommend or approve a Superior Proposal; or (iv) Placer Dome fails
to take any action required under Section 2.2(d)
of this
Agreement with respect to the Shareholder Rights Plan to defer the separation
time of the SRP Rights or to allow the timely completion of the Offer;
and
(h) by
Placer
Dome, if Placer Dome proposes to enter into a definitive agreement with respect
to a Superior Proposal in compliance with the provisions of Section 6.2(f),
provided that Placer Dome has previously or concurrently will have paid to
Barrick the applicable Termination Fee and further provided that Placer Dome
has
not breached any of its covenants, agreements or obligations in this
Agreement.
25
| 7.2 |
Termination
Fee
|
(a) Barrick
shall be entitled to a termination fee of $ 259.7 million
(the
"Termination
Fee")
upon
the occurrence of any of the following events (each a "Termination
Fee Event")
which
shall be paid by Placer Dome within the time specified in respect of each such
Termination Fee Event:
| (i) |
the
Agreement is terminated pursuant to Section 7.1(g)
as
a result of (A) the Placer Dome Board of Directors or any committee
thereof failing to publicly recommend or reaffirm the Offer within
two
calendar days (or, in the event that the Offer shall be scheduled
to
expire within such two calendar day period, prior to the scheduled
expiry
of the Offer) of any request from Barrick to do so, (B) the Placer
Dome
Board of Directors or any committee thereof withdrawing, modifying,
changing or qualifying its approval or recommendation of this Agreement
or
the Offer in a manner adverse to Barrick, other than a termination
pursuant to Section 7.1(g)(ii)
arising solely as a result of (x) the circumstances described in
Section
2.2(b)(i)
or 2.2(b)(ii)
or (y) a change (or any condition, event or development involving
a
prospective change) in the business, operations, assets, capitalization,
properties, condition (financial or otherwise), licenses or permits,
results of operations, rights or privileges (whether contractual
or
otherwise), prospects or liabilities (whether accrued, absolute,
contingent or otherwise) of Barrick or any of the Barrick Subsidiaries
that has occurred since the date hereof which, when considered either
individually or in the aggregate, has resulted or would reasonably
be
expected to result in a Material Adverse Effect with respect to Barrick
(provided that the Placer Dome Board of Directors shall have determined
in
good faith (after receipt of advice from its legal and financial
advisors)
that the failure of Placer Dome to withdraw, modify, change or qualify
its
approval or recommendation of this Agreement or the Offer would be
inconsistent with its fiduciary duties); or (C) the Placer Dome Board
of
Directors or any committee thereof having approved or recommended
or
publicly proposed to approve or recommend any Superior Proposal,
or as a
result of Placer Dome failing to defer the separation time of the
SRP
Rights, in each of which cases the Termination Fee shall be paid
to
Barrick by 1:00 p.m. (Toronto time) on the first business day following
such action or inaction;
|
| (ii) |
this
Agreement shall have been terminated in accordance with Section
7.1(h)
as
a result of Placer Dome proposing to enter into a definitive agreement
with respect to a Superior Proposal following Barrick having elected
not
to match a Superior Proposal in accordance with the terms of Section
6.2(f)(iv)
in
which case the Termination Fee shall be paid to Barrick by 1:00 p.m.
(Toronto time) on the first business day following the day on which
this
Agreement is so terminated;
|
26
| (iii) |
the
Offer is not completed in accordance with the conditions set out
in
Schedule A as a result of Placer Dome being in material default of
any of
its covenants or obligations contained in Section 6.2
of
this Agreement, in which case the Termination Fee shall be paid to
Barrick
on the first business day following the expiry of the Offer;
or
|
| (iv) |
on
or after the date hereof and prior to the Expiry Time, an Acquisition
Proposal is publicly announced or any person has publicly announced
an
intention to make such Acquisition Proposal, and such Acquisition
Proposal
either has been accepted or has not expired, been withdrawn or been
publicly abandoned, and (A) the Offer is not completed as a result
of the
Minimum Tender Condition not having been met, and (B) such Acquisition
Proposal is completed on or prior to September 30, 2006, in which
case the
Termination Fee shall be paid to Barrick on the earlier of the date
that
an Acquisition Proposal is entered into or agreed to or concurrently
with
the consummation of the Acquisition
Proposal;
|
provided,
in each case, that Barrick is not in material default in the performance of
its
obligations under this Agreement.
(b) The
Termination Fee shall be paid by Placer Dome to Barrick by wire transfer in
immediately available funds to an account specified by Barrick. For greater
certainty, the obligations of Placer Dome under this Section 7.2
shall
survive the termination of this Agreement, regardless of the circumstances
thereof.
(c) Placer
Dome acknowledges that the amount set out in Section 7.2
in
respect of the Termination Fee represents liquidated damages which are a genuine
pre-estimate of the damages, including opportunity costs, which Barrick will
suffer or incur as a result of the event giving rise to such damages and
resultant termination of this Agreement, and is not a penalty. Placer Dome
irrevocably waives any right it may have to raise as a defence that any such
liquidated damages are excessive or punitive.
(d) For
greater certainty, Placer Dome shall not be obligated to make more than one
payment under Section 7.2
if one
or more of the events specified therein occurs.
| 7.3 |
Effect
of Termination
|
For
greater certainty, the parties agree that the compensation or damages to be
received pursuant to Section 7.2
of this
Agreement is the sole remedy in compensation or damages of the party receiving
such payment; provided, however, that nothing contained in this Section
7.3,
and no
payment of an amount under Section 7.2
of this
Agreement, shall relieve or have the effect of relieving any party in any way
from liability for damages incurred or suffered by a party as a result of an
intentional or wilful breach of this Agreement, including the intentional or
wilful making of a misrepresentation in this Agreement (including the Schedules
hereto). Nothing herein shall preclude a party from seeking injunctive relief
to
restrain any breach or threatened breach of the covenants or agreements set
forth in this Agreement or
27
otherwise
to obtain specific performance of any such covenants or agreements, without
the
necessity of posting bond or security in connection therewith.
| 7.4 |
Amendment
|
This
Agreement may not be amended except by an instrument signed by each of the
parties hereto.
| 7.5 |
Waiver
|
At
any
time prior to the termination of this Agreement pursuant to Section 7.1,
any
party hereto may: (a) extend the time for the performance of any of the
obligations or other acts of any other party hereto; or (b) waive compliance
with any of the agreements of the other party or with any conditions to its
own
obligations, in each case only to the extent such obligations, agreements and
conditions are intended for its benefit.
ARTICLE 8
GENERAL
PROVISIONS
| 8.1 |
Advisors
|
Barrick
and Placer Dome represent and warrant to each other that, with the exception
of
RBC Dominion Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Canada Inc. and their respective
affiliates, for whose fees and expenses Barrick shall be solely liable, and
CIBC
World Markets Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇▇, Sachs
& Co. and their respective affiliates, for whose fees and expenses Placer
Dome shall be solely liable, no securityholder, director, officer, employee,
consultant, broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission, or to the reimbursement of any of its
expenses, in connection with the Offer or any similar transaction based upon
arrangements made by or on behalf of Barrick or Placer Dome, as the case may
be.
| 8.2 |
Public
Statements
|
Except
as
required by applicable Law or applicable stock exchange requirements, neither
Barrick nor Placer Dome shall make any public announcement or statement with
respect to the Offer or this Agreement without the approval of Placer Dome
or
Barrick, respectively, such approval not to be unreasonably withheld or delayed,
except to the extent necessary to comply with Law or applicable stock exchange
requirements. Moreover, in any event, each party agrees to give prior notice
to
the other of any public announcement relating to the Offer or this Agreement
and
agrees to consult with each other prior to issuing each such public
announcement. Each of Barrick and Placer Dome agrees that, promptly after the
entering into of this Agreement, it shall issue a press release announcing
the
entering into of this Agreement and, in the case of Barrick, its intention
to
amend the Offer, which press release shall, in each case, be satisfactory in
form and substance to the other party, acting reasonably.
28
| 8.3 |
Notices
|
Any
notice, consent, waiver, direction or other communication required or permitted
to be given under this Agreement by a party shall be in writing and may be
given
by delivering same or sending same by facsimile transmission or by delivery
addressed to the party to which the notice is to be given at its address for
service herein. Any notice, consent, waiver, direction or other communication
aforesaid shall, if delivered, be deemed to have been given and received on
the
date on which it was delivered to the address provided herein (if a business
day, if not, the next succeeding business day) and if sent by facsimile
transmission be deemed to have been given and received at the time of receipt
(if a business day, if not the next succeeding business day) unless actually
received after 4:30 p.m. (Toronto time) at the point of delivery in which case
it shall be deemed to have been given and received on the next business
day.
The
address for service for each of the parties hereto shall be as
follows:
(a) if
to
Placer Dome:
Placer
Dome Inc.
▇▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇ ▇▇▇
Attention:
Secretary
Fax:
(▇▇▇)
▇▇▇-▇▇▇▇
with
a
copy to:
Osler,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇▇
1
First
Canadian Place
Toronto,
ON M5X 1B8
Attention:
▇▇▇▇
▇▇▇▇▇▇
Fax:
(▇▇▇)
▇▇▇-▇▇▇▇
(b) if
to
Barrick:
▇▇▇▇▇▇▇
Gold Corporation
BCE
Place, Suite 3700
▇▇▇
▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇ ▇▇▇
|
Attention:
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Executive Vice President, Exploration and Corporate
Development
|
Fax:
(▇▇▇)
▇▇▇-▇▇▇▇
29
with
a
copy to:
Davies
▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
Suite
4400
1
First
Canadian Place
Toronto,
ON M5X 1B1
Attention:
▇▇▇▇▇
▇▇▇▇▇▇▇
Fax:
(▇▇▇)
▇▇▇-▇▇▇▇
| 8.4 |
Currency
|
Unless
otherwise indicated, all dollar amounts referred to in this Agreement are
expressed in United States dollars.
| 8.5 |
Severability
|
If
any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, void or unenforceable, the remainder
of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated and the parties shall negotiate in good faith to modify the
agreement to preserve each party's anticipated benefits under this
Agreement.
| 8.6 |
Entire
Agreement, Assignment and Governing
Law
|
This
Agreement, the Confidentiality Agreement and the agreement between Barrick
and
Placer Dome dated December 9, 2005 (together with all other documents and
instruments referred to herein) constitute the entire agreement and supersede
all other prior agreements and undertakings, both written and oral, among the
parties with respect to the subject matter hereof.
This
Agreement: (a) is not intended to confer upon any other Person any rights or
remedies hereunder other than the officers and directors or former officers
and
directors of Placer Dome and Placer Dome Subsidiaries, who shall be entitled
to
be treated as third party beneficiaries of this Agreement solely with respect
to
Section 6.6;
(b)
shall not be assigned by operation of Law or otherwise; and (c) shall be
governed in all respects, including validity, interpretation and effect, by
the
Laws of the Province of Ontario and the federal Laws of Canada applicable
therein, without giving effect to any principles of conflict of Laws thereof
which would result in the application of the Laws of any other jurisdiction,
and
all actions and proceedings arising out of or relating to this Agreement shall
be heard and determined exclusively in the courts of the Province of
Ontario.
| 8.7 |
Counterparts
|
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be original and all of which taken together shall be deemed to
constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement to produce more than one counterpart.
30
IN
WITNESS WHEREOF, this Agreement has been executed and delivered as of the date
first above written, by the duly authorized representatives of the parties
hereto.
| ▇▇▇▇▇▇▇ GOLD CORPORATION | ||
| |
|
|
| by: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President and Chief Executive
Officer
|
||
| by: | /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Executive Vice President, Exploration and Corporate
Development
|
||
| PLACER DOME INC. | ||
| |
|
|
| by: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Chairman of the Board of Directors
|
||
| by: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
President and Chief Executive
Officer
|
||
SCHEDULE
A
CONDITIONS
OF THE OFFER
Notwithstanding
any other provision of the Agreement to which this schedule is attached, Barrick
shall have the right to withdraw the Offer and not take up and pay for or extend
the period of time during which the Offer is open and postpone taking up and
paying for, any Shares deposited under the Offer unless all of the following
conditions are satisfied or waived by Barrick at or prior to the Expiry
Time:
| (a) |
there
shall have been validly deposited pursuant to the Offer and not withdrawn
at the Expiry Time that number of Shares which constitutes at least
66%
of the Shares outstanding calculated on a fully diluted basis (the
"Minimum
Tender Condition");
|
| (b) |
all
requisite government and regulatory approvals, waiting or suspensory
periods (and any extensions thereof), waivers, permits, consents,
reviews,
sanctions, orders, rulings, decisions, declarations, certificates
and
exemptions (including, among others, those of any stock exchanges
or other
securities or regulatory authorities) that are, in ▇▇▇▇▇▇▇'▇ reasonable
discretion, necessary to complete the Offer, any Compulsory Acquisition
or
any Subsequent Acquisition Transaction shall have been obtained,
received
or concluded or, in the case of waiting or suspensory periods, expired
or
been terminated, each on terms and conditions satisfactory to Barrick
in
its reasonable discretion;
|
| (c) |
this
Agreement shall not have been terminated by Placer Dome or by Barrick
in
accordance with its terms;
|
| (d) |
Barrick
shall have determined in its reasonable discretion that: (i) no act,
action, suit or proceeding shall have been taken or threatened in
writing
before or by any Governmental Entity or by an elected or appointed
public
official or private person (including, without limitation, any individual,
corporation, firm, group or other entity) whether or not having the
force
of Law; and (ii) no Law, regulation or policy shall exist or have
been
proposed, enacted, entered, promulgated or applied, in either
case:
|
| (A) |
to
cease trade, enjoin, prohibit or impose material limitations or conditions
on the purchase by or the sale to Barrick of the Shares, the right
of
Barrick to own or exercise full rights of ownership of the
Shares;
|
| (B) |
which,
if the Offer (or any Compulsory Acquisition or any Subsequent Acquisition
Transaction) were consummated, would reasonably be expected to have
a
Material Adverse Effect with respect to Placer Dome or Barrick;
|
| (C) |
which
would materially and adversely affect the ability of Barrick to proceed
with the Offer (or any Compulsory Acquisition or any Subsequent
Acquisition Transaction) and/or take up and pay for any Shares deposited
under the Offer;
|
| (D) |
seeking
to obtain from Barrick or any of the Barrick Subsidiaries or Placer
Dome
or any of the Placer Dome Subsidiaries any damages directly or indirectly
in connection with the Offer (or any Compulsory Acquisition or any
Subsequent Acquisition Transaction), which act, action, suit or proceeding
or Law, regulation or policy would reasonably be expected to have
a
Material Adverse Effect in respect of Placer Dome or Barrick;
or
|
| (E) |
seeking
to prohibit or limit the ownership or operation by Barrick of any
material
portion of the business or assets of Placer Dome or the Placer Dome
Subsidiaries or to compel Barrick or the Barrick Subsidiaries to
dispose
of or hold separate any material portion of the business or assets
of
Placer Dome or any of the Placer Dome Subsidiaries as a result of
the
Offer (or any Compulsory Acquisition or any Subsequent Acquisition
Transaction), which act, action, suit or proceeding or Law, regulation
or
policy would reasonably be expected to have a Material Adverse Effect
in
respect of Placer Dome or Barrick;
|
| (e) |
there
shall not exist any prohibition at Law against Barrick making or
maintaining the Offer or taking up and paying for any Shares deposited
under the Offer or completing a Compulsory Acquisition or any Subsequent
Acquisition Transaction;
|
| (f) |
Barrick
shall have determined in its reasonable discretion that there shall
not
exist or have occurred (or, if there does exist or shall have occurred
prior to October 31, 2005, there shall not have been disclosed, generally
or to Barrick in writing on or before the execution and delivery
of this
Agreement) any change (or any condition, event or development involving
a
prospective change) in the business, operations, assets, capitalization,
properties, condition (financial or otherwise), licenses or permits,
results of operations, rights or privileges (whether contractual
or
otherwise), prospects or liabilities (whether accrued, absolute,
contingent or otherwise) of Placer Dome or any of the Placer Dome
Subsidiaries which, when considered either individually or in the
aggregate, has resulted or would reasonably be expected to result
in a
Material Adverse Effect with respect to Placer
Dome;
|
| (g) |
Placer
Dome shall have complied in all material respects with its covenants
and
obligations under this Agreement to be complied with at or prior
to the
Expiry Time;
|
2
| (h) |
all
representations and warranties made by Placer Dome in this Agreement
shall
be true and correct at and as of the Expiry Time as if made at and
as of
such time (except for those expressly stated to speak at or as of
an
earlier time) without giving effect to, applying or taking into
consideration any materiality or Material Adverse Effect qualification
already contained within such representation and warranty, where
such
inaccuracies in the representations and warranties, individually
or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect in respect of Placer Dome or materially and adversely affect
the
ability of Barrick to proceed with the Offer or any Compulsory Acquisition
or Subsequent Acquisition Transaction or, if the Offer or any Compulsory
Acquisition or Subsequent Acquisition Transaction were consummated,
reasonably be expected to have a Material Adverse Effect on
Barrick;
|
| (i) |
Barrick
shall not have become aware of any untrue statement of a material
fact, or
an omission to state a material fact that is required to be stated
or that
is necessary to make a statement not misleading in light of the
circumstances in which it was made and at the date it was made (after
giving effect to all subsequent filings made on or before December
21,
2005 in relation to all matters covered in earlier filings), in any
document filed by or on behalf of Placer Dome with any securities
commission or similar securities regulatory authority in any of the
provinces of Canada or in the United States or elsewhere, including
any
prospectus, annual information form, financial statement, material
change
report, management proxy circular, feasibility study or executive
summary
thereof, press release or any other document so filed by Placer
Dome;
|
| (j) |
Barrick
shall have determined in its reasonable discretion that, on terms
satisfactory to Barrick: (i) the Placer Dome Board of Directors shall
have
waived the application of the Shareholder Rights Plan to the purchase
of
Shares by Barrick under the Offer, any Compulsory Acquisition and
any
Subsequent Acquisition Transaction; (ii) a cease trade order or an
injunction shall have been issued that has the effect of prohibiting
or
preventing the exercise of SRP Rights or the issue of Common Shares
upon
the exercise of the SRP Rights in relation to the purchase of Shares
by
Barrick under the Offer, any Compulsory Acquisition or any Subsequent
Acquisition Transaction; (iii) a court of competent jurisdiction
shall
have ordered that the SRP Rights are illegal or of no force or effect
or
may not be exercised in relation to the Offer, any Compulsory Acquisition
or any Subsequent Acquisition Transaction; or (iv) the SRP Rights
and the
Shareholder Rights Plan shall otherwise have become or been held
unexercisable or unenforceable in relation to the Shares with respect
to
the Offer, any Compulsory Acquisition and any Subsequent Acquisition
Transaction; and
|
| (k) |
Barrick
shall have determined in its reasonable judgment that there shall
not have
occurred, developed or come into effect or existence any event, action,
state, condition or financial occurrence of national or international
consequence, or any Law, regulation, action, government regulation,
inquiry or other occurrence of
|
3
any nature whatsoever, that materially adversely affects the financial,
banking
or capital markets generally.
The
foregoing conditions are for the exclusive benefit of Barrick and may be
asserted by Barrick regardless of the circumstances giving rise to any such
assertion, including any action or inaction by Barrick. Subject to the
provisions of the Agreement to which this Schedule is attached, Barrick may
waive any of the foregoing conditions in whole or in part at any time and from
time to time without prejudice to any other rights which Barrick may have.
The
failure by Barrick at any time to exercise any of the foregoing rights will
not
be deemed to be a waiver of any such right and each such right shall be deemed
to be an ongoing right which may be asserted at any time and from time to
time.
4
SCHEDULE
B
REPRESENTATIONS
AND WARRANTIES OF BARRICK
1. Organization
Barrick
and each Barrick Subsidiary and each material joint venture of Barrick that
is
incorporated has been duly incorporated or formed under all applicable Laws
of
its jurisdiction of incorporation or formation, is validly existing and has
all
necessary corporate power, authority, and capacity to own its property and
assets and to carry on its business as currently owned and conducted. ▇▇▇▇▇▇▇'▇
percentage of ownership of all Barrick Subsidiaries and material joint ventures
described in the Barrick Public Documents is as set out in the Barrick Public
Documents. There are no outstanding options, rights, entitlements,
understandings or commitments (contingent or otherwise) providing to any third
party the right to acquire any such shares or other ownership interests in
any
of the Barrick Subsidiaries.
2. Capitalization
The
authorized capital of Barrick consists of an unlimited number of Barrick Common
Shares and unlimited number of first preferred shares and second preferred
shares issuable in series. As at November 30, 2005 there were issued and
outstanding 537,253,839
Barrick
Common Shares and one first preferred, Series C special voting share. As at
the
date of this Agreement, ▇▇▇▇▇▇▇ Gold Inc. had outstanding 1,370,220 exchangeable
shares (excluding those held by Barrick and its affiliates) exchangeable into
726,216
Barrick
Common Shares. As at that date there were options to acquire an aggregate of
20,418,575
Barrick
Common Shares outstanding under various stock option plans. Except for the
exchangeable shares of ▇▇▇▇▇▇▇ Gold Inc. and such stock options, there are
no
options, warrants, conversion privileges or other rights, agreements,
arrangements or commitments (pre-emptive, contingent or otherwise) obligating
Barrick or any Barrick Subsidiary to issue or sell any shares of Barrick or
securities or obligations of any kind convertible into or exchangeable for
any
shares of Barrick.
3.
Authority
and No Violation
(a) Barrick
has the necessary corporate power, authority and capacity to enter into this
Agreement and to perform its obligations hereunder. The execution and delivery
of this Agreement by Barrick and the consummation by Barrick of the Offer have
been duly authorized by its board of directors and no other corporate
proceedings on its part are necessary to authorize this Agreement or the Offer,
other than with respect to the Notice of Variation and other matters relating
solely thereto. This Agreement has been duly executed and delivered by Barrick
and constitutes a legal, valid and binding obligation of Barrick, enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency
and
other applicable Laws affecting creditors' rights generally, and to general
principles of equity.
(b) The
authorization of this Agreement, the execution and delivery by Barrick of this
Agreement and the performance by it of its obligations under this Agreement,
and
the consummation of the Offer, will not:
| (i) |
result
(with or without notice or the passage of time) in a violation or
breach
of or constitute a default under any provision
of:
|
| (A) |
its
or any Barrick Subsidiary's certificate of incorporation, articles,
by-laws or other charter documents or the agreements covering any
of
▇▇▇▇▇▇▇'▇ material joint ventures;
|
| (B) |
any
applicable Laws, except to the extent that the violation or breach
of,
under, any applicable Laws, would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect with respect
to
Barrick; or
|
| (C) |
any
note, bond, mortgage, indenture, contract, licence, permit or government
grant to which Barrick or any Barrick Subsidiary or Barrick material
joint
venture is party or by which it is bound, except as would not,
individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect with respect to
Barrick;
|
| (ii) |
give
rise to any right of termination, acceleration or cancellation of
indebtedness of Barrick or any Barrick Subsidiary or Barrick material
joint venture, or cause any such indebtedness to come due before
its
stated maturity;
|
| (iii) |
give
rise to any rights of first refusal or trigger any change in control
provisions or any restriction or limitation under any such note,
bond,
mortgage, indenture, contract, license, franchise or permit, or result
in
the imposition of any encumbrance, charge or lien upon any of ▇▇▇▇▇▇▇'▇
assets or the assets of any Barrick Subsidiaries or ▇▇▇▇▇▇▇'▇ material
joint ventures, except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect with respect
to
Barrick; or
|
| (iv) |
result
in the imposition of any Encumbrance or Encumbrances upon any assets
of
Barrick or any Barrick Subsidiary or Barrick material joint venture,
except as would not, individually or in the aggregate, reasonably
be
expected to have a Material Adverse Effect with respect to
Barrick.
|
4.
Public
Filings
Barrick
has filed all documents or information (the "Barrick
Public Documents")
required to be filed by it under Applicable Securities Laws or with the TSX
or
NYSE since January 1, 2005. All such Barrick Public Documents, as of their
respective dates, did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make
the statements therein, in light of the circumstances under which they were
made, not misleading as at the time at which they were filed with applicable
securities regulatory authorities. All of the Barrick Public Documents, as
of
their respective dates (and as of the dates of any amendments thereto), complied
as to form in all material respects with the requirements of Applicable
Securities Laws or were amended on a timely basis
2
to
correct deficiencies identified by securities commissions or similar securities
regulatory authorities. Barrick has not filed any confidential material change
report with any securities regulatory authority that at the date hereof remains
confidential.
5. Financial
Statements
The
audited consolidated financial statements of Barrick (including any related
notes thereto) for the fiscal year ended December 31, 2004 and the interim
consolidated financial statements of Barrick (including any related notes
thereto) for the periods ended March 31, 2005, June 30, 2005 and September
30,
2005 have been prepared in accordance with US GAAP and all applicable Laws
and
present fairly, in all material respects, the assets, liabilities (whether
accrued, absolute, contingent or otherwise) and financial condition of Barrick
and the Barrick Subsidiaries on a consolidated basis as at December 31, 2004,
March 31, 2005, June 30, 2005 and September 30, 2005, as applicable, and for
the
periods covered thereby applied on a basis consistent with the immediately
prior
period and throughout the periods indicated (except as may be indicated
expressly in the notes thereto) and, in the case of unaudited statements,
subject to normal, recurring year-end adjustments that are not
material.
6.
Books
and Records
The
financial books, records and accounts of Barrick and, each of the Barrick
Subsidiaries and ▇▇▇▇▇▇▇'▇ material joint ventures, in all material respects:
(i) have been maintained in accordance with accounting principles generally
accepted in the country of domicile of each such entity on a basis consistent
with prior years; (ii) are stated in reasonable detail and accurately and fairly
reflect the material transactions and dispositions of the assets of Barrick
and
the Barrick Subsidiaries and ▇▇▇▇▇▇▇'▇ material joint ventures; and (iii)
accurately and fairly reflect the basis for Barrick financial statements.
Barrick and the Barrick Subsidiaries' corporate minute books contain minutes
of
all meetings and resolutions of the directors and securityholders
held.
7.
Absence
of Certain Changes or Events
Since
December 31, 2004, except as disclosed in the Barrick Public Documents, (i)
each
of Barrick and the Barrick Subsidiaries and ▇▇▇▇▇▇▇'▇ material joint ventures
has conducted its business only in the ordinary course of business consistent
with past practice; and (ii) there have not occurred any circumstances or events
which would, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect with respect to Barrick.
8. Litigation
(a) Except
as
disclosed in the Barrick Public Documents, there is no claim, action, proceeding
or investigation that has been commenced or, to the knowledge of Barrick,
threatened against Barrick or any Barrick Subsidiary or Barrick material joint
venture or affecting any of its property or assets before any Governmental
Entity which, if determined adversely to Barrick or the Barrick Subsidiary
or
Barrick material joint venture, as the case may be, would, individually or
in
the aggregate, reasonably be expected to have a Material Adverse Effect with
respect to Barrick, nor is Barrick aware of any existing ground on which any
such claim, action, proceeding or investigation might be commenced with any
reasonable likelihood of success.
3
(b) There
is
no claim, action, proceeding or investigation that has been commenced or, to
the
knowledge of Barrick, threatened against Barrick or any Barrick Subsidiary
or
Barrick material joint venture or affecting any of its property or assets before
any Governmental Entity which, if determined adversely to Barrick or the Barrick
Subsidiary or Barrick material joint venture, as the case may be, would,
individually or in the aggregate, reasonably be expected to prevent or
materially delay the consummation of the Offer, a Compulsory Acquisition or
a
Subsequent Acquisition Transaction, nor
is
Barrick aware of any existing ground on which any such claim, action, proceeding
or investigation might be commenced with any reasonable likelihood of
success.
(c) Neither
Barrick nor any of the Barrick Subsidiaries nor any of ▇▇▇▇▇▇▇'▇ material joint
ventures is subject to any outstanding judgment, order, writ, injunction or
decree which would reasonably be expected to have a Material Adverse Effect
with
respect to Barrick.
9.
Mineral
Reserves and Resources
The
estimated proven and probable mineral reserves and estimated indicated, measured
and inferred mineral resources disclosed in the Barrick Public Documents as
of
year-end 2004 have been prepared and disclosed in all material respects in
accordance with accepted engineering practices and all applicable Laws. There
has been no material reduction in the aggregate amount of estimated mineral
reserves, estimated mineral resources or mineralized material of Barrick and
the
Barrick Subsidiaries and ▇▇▇▇▇▇▇'▇ material joint ventures, taken as a whole,
from the amounts disclosed in the Barrick Public Documents as of December 31,
2004.
10.
Financing
Arrangements
Barrick
has made adequate arrangements to ensure that the required funds are available
to effect payment in full of the cash consideration for all of the Shares
acquired pursuant to the Offer.
4
SCHEDULE
C
REPRESENTATIONS
AND WARRANTIES OF PLACER DOME
Except
as
disclosed in writing to Barrick prior to the execution and delivery of this
Agreement:
1. Organization
(a) Placer
Dome and each Placer Dome Subsidiary and each material joint venture of Placer
Dome that is incorporated has been duly incorporated or formed under all
applicable Laws of its jurisdiction of incorporation or formation, is validly
existing and has all necessary corporate power, authority, and capacity to
own
its property and assets and to carry on its business as currently owned and
conducted. Placer Dome's percentage of ownership of all Placer Dome Subsidiaries
and material joint ventures described in the Placer Dome Public Documents is
as
set out in the Placer Dome Public Documents. There are no outstanding options,
rights, entitlements, understandings or commitments (contingent or otherwise)
providing to any third party the right to acquire any such shares or other
ownership interests in any of the Placer Dome Subsidiaries.
(b) Placer
Dome directly owns 98.35% and indirectly owns, through a wholly-owned Canadian
subsidiary, 1.65% of the shares of Placer Dome (CLA) Limited, which in turn
owns
directly or indirectly all of Placer Dome's interest in the ▇▇▇▇▇▇▇▇ mine,
the
Porcupine joint venture, the ▇▇▇▇▇▇▇▇▇▇▇ joint venture and the La Coipa mine.
Placer Dome and its Subsidiaries have undertaken no reorganization that would
have the effect of preventing Barrick from obtaining a full tax cost "bump"
pursuant to paragraph 88(1)(d) of the Income
Tax Act
(Canada)
in respect of the shares of the Subsidiaries and other non-depreciable capital
property directly owned by Placer Dome on October 30, 2005.
2. Capitalization
The
authorized capital of Placer Dome consists of an unlimited number of Shares.
As
at the date of this Agreement there were issued and outstanding 438,652,882
Shares. As at the date of this Agreement there were 12,080,099 Placer Dome
Options to acquire an aggregate of 12,080,099 Shares outstanding. Placer has
provided to Barrick a list setting out the name of each holder of a Placer
Dome
Option, the number of Placer Dome Options held by such person and the exercise
price, date of grant, vesting schedule and expiry date of each such Placer
Dome
Option. In addition, as of the date of this Agreement Placer Dome also has
the
Convertible Debentures outstanding which are convertible into 10,991,631 Shares,
none of which is in a position to be converted. Except for the Placer Dome
Options, the Convertible Debentures and the SRP Rights, there are no options,
warrants, conversion privileges or other rights, agreements, arrangements or
commitments (pre-emptive, contingent or otherwise) obligating Placer Dome or
any
Placer Dome Subsidiary to issue or sell any shares of Placer Dome or securities
or obligations of any kind convertible into or exchangeable for any shares
of
Placer Dome.
3.
Authority
and No Violation
(a) Placer
Dome has the necessary corporate power, authority and capacity to enter into
this Agreement and to perform its obligations hereunder. The execution and
delivery of this Agreement by Placer Dome and the consummation by Placer Dome
of
the Offer have been duly authorized by the Placer Dome Board of Directors and
no
other corporate proceedings on its part are necessary to authorize this
Agreement or the Offer, other than with respect to the Directors' Circular
and
other matters relating solely thereto. This Agreement has been duly executed
and
delivered by Placer Dome and constitutes a legal, valid and binding obligation
of Placer Dome, enforceable against it in accordance with its terms, subject
to
bankruptcy, insolvency and other applicable Laws affecting creditors' rights
generally, and to general principles of equity.
(b) The
authorization of this Agreement, the execution and delivery by Placer Dome
of
this Agreement and the performance by it of its obligations under this
Agreement, and the consummation of the Offer, will not:
| (i) |
result
(with or without notice or the passage of time) in a violation or
breach
of or constitute a default under any provision
of:
|
| (A) |
its
or any Placer Dome Subsidiary's certificate of incorporation, articles,
by-laws or other charter documents or the agreements covering any
of
Placer Dome's material joint
ventures;
|
| (B) |
any
applicable Laws, except to the extent that the violation or breach
of,
under, any applicable Laws, would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect with respect
to
Placer Dome; or
|
| (C) |
any
note, bond, mortgage, indenture, contract, licence, permit or, government
grant to which Placer Dome or any Placer Dome Subsidiary or Placer
Dome
material joint venture is party or by which it is bound, except as
would
not, individually or in the aggregate, reasonably be expected to
have a
Material Adverse Effect with respect to Placer
Dome;
|
| (ii) |
give
rise to any right of termination, acceleration or cancellation of
indebtedness of Placer Dome or any Placer Dome Subsidiary or Placer
Dome's
material joint ventures, or cause any such indebtedness to come due
before
its stated maturity;
|
| (iii) |
give
rise to any rights of first refusal or, except as disclosed to Barrick
pursuant to Section 9(a)
of
this Schedule C, trigger any change in control provisions or any
restriction or limitation under any such note, bond, mortgage, indenture,
contract, license, franchise or permit, or result in the imposition
of any
encumbrance, charge or lien upon any of Placer Dome's assets or the
assets
of any of the Placer Dome Subsidiaries or Placer Dome's material
joint
ventures, except as would not, individually or in the
|
2
aggregate, reasonably be expected to have a Material Adverse Effect with respect
to Placer Dome; or
| (iv) |
result
in the imposition of any Encumbrance or Encumbrances upon any assets
of
Placer Dome or any Placer Dome Subsidiary or Placer Dome material
joint
venture, except as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect with respect to Placer
Dome.
|
4.
Public
Filings
Placer
Dome has filed all documents or information (the "Placer
Dome Public Documents")
required to be filed by it under Applicable Securities Laws or with the TSX
or
NYSE since January 1, 2005. All such Placer Dome Public Documents, as of their
respective dates, did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make
the statements therein, in light of the circumstances under which they were
made, not misleading as at the time at which they were filed with applicable
securities regulatory authorities. All of the Placer Dome Public Documents,
as
of their respective dates (and as of the dates of any amendments thereto),
complied as to form in all material respects with the requirements of Applicable
Securities Laws or were amended on a timely basis to correct deficiencies
identified by securities commissions or similar securities regulatory
authorities. Placer Dome has not filed any confidential material change report
with any securities regulatory authority that at the date hereof remains
confidential.
5.
Financial
Statements
The
audited consolidated financial statements of Placer Dome (including any related
notes thereto) for the fiscal year ended December 31, 2004 and the interim
consolidated financial statements of Placer Dome (including any related notes
thereto) for the periods ended March 31, 2005, June 30, 2005 and September
30,
2005 have been prepared in accordance with US GAAP and all applicable Laws
and
present fairly, in all material respects, the assets, liabilities (whether
accrued, absolute, contingent or otherwise) and financial condition of Placer
Dome and the Placer Dome Subsidiaries on a consolidated basis as at December
31,
2004, March 31, 2005, June 30, 2005 and September 30, 2005, as applicable,
and
for the periods covered thereby applied on a basis consistent with the
immediately prior period and throughout the periods indicated (except as may
be
indicated expressly in the notes thereto) and, in the case of unaudited
statements, subject to normal, recurring year-end adjustments that are not
material.
6.
Books
and Records
The
financial books, records and accounts of Placer Dome and, each of the Placer
Dome Subsidiaries and Placer Dome's material joint ventures, in all material
respects: (i) have been maintained in accordance with accounting principles
generally accepted in the country of domicile of each such entity on a basis
consistent with prior years; (ii) are stated in reasonable detail and accurately
and fairly reflect the material transactions and dispositions of the assets
of
Placer Dome and the Placer Dome Subsidiaries and Placer Dome's material joint
ventures; and (iii) accurately and fairly reflect the basis for Placer Dome
financial statements. Placer Dome
3
and
the
Placer Dome Subsidiaries' corporate minute books contain minutes of all meetings
and resolutions of the directors and securityholders held.
7.
Absence
of Certain Changes or Events
Since
December 31, 2004, except as disclosed in the Placer Dome Public Documents,
(i)
each of Placer Dome and the Placer Dome Subsidiaries and Placer Dome's material
joint ventures has conducted its business only in the ordinary course of
business consistent with past practice; and (ii) there have not occurred any
circumstances or events which would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect with respect to Placer
Dome.
8.
Litigation
(a) Except
as
disclosed in the Placer Dome Public Documents, there
is
no claim, action, proceeding or investigation that has been commenced or, to
the
knowledge of Placer Dome, threatened against Placer Dome or any Placer Dome
Subsidiary or Placer Dome material joint venture or affecting any of its
property or assets before any Governmental Entity which, if determined adversely
to Placer Dome or the Placer Dome Subsidiary or Placer Dome material joint
venture, as the case may be, would, individually or in the aggregate, reasonably
be expected to
have a
Material Adverse Effect with respect to Placer Dome, nor is Placer Dome aware
of
any existing ground on which any such claim, action, proceeding or investigation
might be commenced with any reasonable likelihood of success.
(b) There
is
no claim, action, proceeding or investigation that has been commenced or, to
the
knowledge of Placer Dome, threatened against Placer Dome or any Placer Dome
Subsidiary or Placer Dome material joint venture or affecting any of its
property or assets before any Governmental Entity which, if determined adversely
to Placer Dome or the Placer Dome Subsidiary or Placer Dome material joint
venture, as the case may be, would, individually or in the aggregate, reasonably
be expected to prevent or materially delay the consummation of the Offer, a
Compulsory Acquisition or a Subsequent Acquisition Transaction, nor is Placer
Dome aware of any existing ground on which any such claim, action, proceeding
or
investigation might be commenced with any reasonable likelihood of success.
(c) Neither
Placer Dome nor any of the Placer Dome Subsidiaries nor any of Placer Dome's
material joint ventures is subject to any outstanding judgment, order, writ,
injunction or decree which would reasonably be expected to have a Material
Adverse Effect with respect to Placer Dome.
9.
Employment
Matters
(a) Placer
Dome has provided to Barrick a complete list setting out the name of each
officer of Placer Dome who is a party to or a participant in any agreement,
arrangement, plan, obligation or understanding providing for severance or
termination or other payments in connection with the termination of the
employment or engagement of, or resignation of, any such officer of Placer
Dome
following a change of control of Placer Dome (each a "Change
of Control Beneficiary")
and a
description and calculation of the entitlements of each such person.
4
(b) Except
as
disclosed to Barrick pursuant to Section 9(a)
of this
Schedule C, there are no written or oral agreements, arrangements, plans,
obligations or understandings providing for severance or termination or other
payments in connection with the termination of the employment or engagement
of,
or resignation of, any director, officer or employee of Placer Dome or any
Placer Dome Subsidiary or material joint venture following a change of control
of Placer Dome.
(c) Except
for bonuses in an aggregate amount not exceeding Cdn $3,537,000
(which,
for greater certainty, does not include the amounts referred to in Section
9(a)
of this
Schedule C), Placer Dome has not declared or paid, or committed to declare
or
pay, any amount to any Change of Control Beneficiary in respect of a performance
or incentive or other bonus in respect of all or any part of the 2005 calendar
year or all or any part of any subsequent calendar year or in connection with
the completion of the transactions contemplated by this Agreement.
10.
Mineral
Reserves and Resources
The
estimated proven and probable mineral reserves and estimated indicated, measured
and inferred mineral resources disclosed in the Placer Dome Public Documents
as
of year-end 2004, and as of September 1, 2005 at the ▇▇▇▇▇▇ Hills project,
as of
September 27, 2005 at the Pueblo Viejo project, as of September 30, 2005 at
the
Bald Mountain mine and as of November 30, 2005 at the Sedibelo project have
been
prepared and disclosed in all material respects in accordance with accepted
engineering practices and all applicable Laws. There has been no material
reduction in the aggregate amount of estimated mineral reserves, estimated
mineral resources or mineralized material of Placer Dome and the Placer Dome
Subsidiaries and Placer Dome's material joint ventures, taken as a whole, from
the amounts disclosed in the Placer Dome Public Documents as of December 31,
2004, and as of September 1, 2005 at the ▇▇▇▇▇▇ Hills project, as of September
27, 2005 at the Pueblo Viejo project, as of September 30, 2005 at the Bald
Mountain mine and as of November 30, 2005 at the Sedibelo project.
11.
Form
of Confidentiality Agreement
Placer
Dome has provided to Barrick a copy of the form of confidentiality and
standstill agreement (the "Form
of Confidentiality Agreement")
entered into by Placer Dome and various third parties in order for such third
parties to gain access to all or a portion of the data room (virtual or
otherwise) established by Placer Dome after ▇▇▇▇▇▇▇'▇ announcement of its
intention to make the Original Offer in connection with providing information
to
third parties to explore potential alternative transactions. Placer Dome has
entered into an agreement in the form of the Form of Confidentiality Agreement
(subject only to non-material amendments) with each third party who has had
access to all or a portion of such data room.