Exhibit 4.1
VOTING, SUPPORT AND EXCHANGE TRUST AGREEMENT SUPPLEMENT
-------------------------------------------------------
THIS VOTING, SUPPORT AND EXCHANGE TRUST AGREEMENT SUPPLEMENT is made as
of _____________________, 2001,
AMONG:
XXXXXXX GOLD CORPORATION,
a corporation governed by the
laws of the Province of Ontario,
("Barrick")
- and -
HOMESTAKE MINING COMPANY,
a corporation governed by the
laws of the State of Delaware,
("Homestake")
- and -
HOMESTAKE CANADA INC.,
a corporation governed by the laws
of the Province of Ontario,
("HCI")
- and -
HOMESTAKE CANADA HOLDINGS COMPANY, an unlimited
liability company governed by the laws of the
Province of Nova Scotia, ("Homestake ULC")
- and -
COMPUTERSHARE TRUST COMPANY OF CANADA, a trust
company existing under the federal laws of Canada,
(the "Trustee" or "Computershare")
- and -
MONTREAL TRUST COMPANY OF CANADA,
a trust company existing under the federal laws of Canada,
(the "Original Trustee" or "Montreal Trust")
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RECITALS:
HCI is the issuer of certain shares (the "Exchangeable
Shares"), which are currently exchangeable into shares of common stock of
Homestake ("Homestake Common Stock"), on a one-for-one basis.
Homestake, HCI and the Original Trustee entered into a voting,
support and exchange trust agreement dated as of December 2, 1998 (the "Original
Trust Agreement") to establish certain procedures relating to the HCI
Exchangeable Share structure, including, among other things, the procedures
whereby the Trustee may exercise certain voting rights and exchange rights on
behalf of holders of the Exchangeable Shares.
Pursuant to an agreement and plan of merger dated as of June
24, 2001 as amended by an amendment dated as of October 19, 2001 (the "Merger
Agreement") among Barrick, Homestake and a wholly-owned subsidiary of Barrick
("Homestake Merger Co."), it is proposed that Homestake Merger Co. merge with
and into Homestake (the "Merger") with the result that Homestake will continue
as the surviving corporation and become a wholly-owned indirect subsidiary of
Barrick.
Under the Merger, each outstanding share of Homestake Common
Stock not owned by Barrick or Homestake will be changed and converted into the
right to receive 0.53 common shares of Barrick ("Barrick Common Shares") and
each outstanding Exchangeable Share will remain outstanding, but will, at and
after the effective time of the Merger, be exchangeable for 0.53 Barrick Common
Shares.
Pursuant to Sections 11.1, 11.2 and 12.4 of the Original Trust
Agreement, as a result of the Merger, the Original Trust Agreement must be
amended, modified and supplemented as necessary in order that it shall apply
with full force and effect, mutatis mutandis, to the Barrick Common Shares, and
the parties to the Original Trust Agreement are required to execute and deliver
this voting, support and exchange trust supplement in order to give effect to
and evidence such necessary amendments and modifications.
Barrick, Homestake and Homestake Merger Co. propose to
complete the Merger immediately following the execution and delivery of this
voting, support and exchange trust supplement by the parties hereto.
The board of directors of Homestake and the board of directors
of HCI are each of the opinion that the amendments and modifications to be
effected hereby are not inconsistent with the Original Trust Agreement, are
necessary and desirable in light of the Merger and will not be prejudicial to
the interests of the holders of the Exchangeable Shares.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
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ARTICLE 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
--------------------------------------------
1.1 DEFINITIONS
-----------
All capitalized terms used herein which are defined in the
Original Trust Agreement shall have the respective meanings set forth therein,
except as otherwise defined herein. Whenever used herein, the following words
and terms have the meanings set forth below:
"AGREEMENT" means this voting, support and exchange trust agreement
supplement, including all amendments or restatements as permitted, and
references to "Article" or "Section" mean the specified Article or
Section of this Agreement;
"MERGER" has the meaning ascribed to it in the Recitals;
"ORIGINAL TRUST AGREEMENT" has the meaning ascribed to it in the
Recitals;
"TRUSTEE CHANGE EFFECTIVE DATE" has the meaning ascribed to it in
Section 4.1 hereof; and
"VOTING SHARE" has the meaning ascribed to it in Section 2.1 hereof.
1.2 CERTAIN RULES OF INTERPRETATION
-------------------------------
In this Agreement:
(a) GOVERNING LAW - This Agreement is a contract made under and
shall be governed by and construed in accordance with the laws
of the Province of Ontario and the federal laws of Canada
applicable in the Province of Ontario.
(b) HEADINGS - Headings of Articles and Sections are inserted for
convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
(c) NO STRICT CONSTRUCTION - The language used in this Agreement
is the language chosen by the parties to express their mutual
intent, and no rule of strict construction shall be applied
against any party.
(d) NUMBER AND GENDER - Unless the context otherwise requires,
words importing the singular include the plural and vice versa
and words importing gender include all genders.
(e) SEVERABILITY - If, in any jurisdiction, any provision of this
Agreement or its application to any party or circumstance is
restricted, prohibited or unenforceable, such provision shall,
as to such jurisdiction, be ineffective only to the extent of
such restriction, prohibition or unenforceability without
invalidating the remaining provisions of this Agreement and
without affecting the validity or
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enforceability of such provision in any other jurisdiction or
without affecting its application to other parties or
circumstances.
(f) TIME - Time is of the essence in the performance of the
parties' respective obligations.
1.3 SCOPE OF AGREEMENT
------------------
This Agreement is supplementary to and amends and modifies the
Original Trust Agreement as herein set forth. Immediately upon the Merger
becoming effective under the Delaware General Corporation Law, the Original
Trust Agreement shall thereafter be read in conjunction with this Agreement and
this Agreement shall be deemed for all purposes to be a part of the Original
Trust Agreement and shall have effect so far as is practicable as if all the
provisions of the Original Trust Agreement and this Agreement were contained in
one and the same instrument.
This Agreement and the Original Trust Agreement constitute the
entire agreement between the parties relating to the subject matter hereof and
thereof. This Agreement supersedes all prior agreements and understandings of
the parties, whether oral or written, including the Original Trust Agreement,
with respect to the portions of the Original Trust Agreement hereby amended,
modified and supplemented. There are no general or specific representations,
warranties or other agreements by or among the parties in connection with the
entering into of this Agreement or the subject matter hereof except as
specifically set forth herein.
ARTICLE 2
COVENANTS OF THE PARTIES
------------------------
2.1 ISSUANCE OF BARRICK SPECIAL VOTING SHARE
----------------------------------------
As of the time that the Merger becomes effective under the
Delaware General Corporation Law, (a) Barrick shall issue to and deposit with
the Trustee the first preferred share, series C special voting share of Barrick
(the "Voting Share") to be thereafter held of record by the Trustee as trustee
for and on behalf of, and for the use and benefit of, the Non-Affiliated Holders
and in accordance with the provisions of the Original Trust Agreement as
amended, modified and supplemented by this Agreement, and (b) the Trustee shall
surrender to Homestake the certificate formerly representing the one share of
special voting stock of Homestake, par value U.S.$1.00, previously issued by
Homestake to the Trustee. Barrick hereby acknowledges receipt from the Trustee
as trustee for and on behalf of the Non-Affiliated Holders of good and valuable
consideration (and the adequacy thereof) for the issuance of the Voting Share by
Barrick to the Trustee.
2.2 ASSUMPTION OF OBLIGATIONS
-------------------------
Barrick hereby confirms, covenants and agrees and each of the
other parties hereto acknowledges and confirms that, immediately upon the Merger
becoming effective under the Delaware General Corporation Law, by virtue of this
Agreement, Barrick has succeeded to the position of Homestake under the Original
Trust Agreement (as amended, modified and supplemented hereby) and, without
limiting the generality of the foregoing, that it has assumed
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liability for all moneys payable and property deliverable under the Original
Trust Agreement (as amended, modified and supplemented hereby), and that it will
pay and deliver or cause to be paid and delivered all such moneys and property
and will observe and perform all the covenants and obligations of Homestake
under the Original Trust Agreement (as amended, modified and supplemented
hereby). Each of the parties hereto acknowledges and agrees that Barrick is the
Homestake Successor, as that term is defined in the Original Trust Agreement,
for all purposes of the Original Trust Agreement (including as such agreement is
amended, modified and supplemented hereby) and is the successor corporation to
Homestake, as contemplated by the definition of "Homestake" in the Exchangeable
Share Provisions, for all purposes of the Exchangeable Share Provisions.
2.3 WAIVER OF DIVIDEND ENTITLEMENT; RETURN OF VOTING SHARE
------------------------------------------------------
The Trustee hereby:
(a) irrevocably waives its entitlement to the $0.01 quarterly
dividend required to be paid by Barrick on the Voting Share
pursuant to the provisions thereof, and acknowledges and
agrees that no such dividend will in fact be paid; and
(b) covenants and agrees that, at such time as no Exchangeable
Shares (other than Exchangeable Shares owned by Barrick or any
subsidiary or affiliate of Barrick) shall be outstanding and
there are no shares, securities, debt, options or other
agreements which could give rise to the issuance of any
Exchangeable Shares to any person (other than Barrick or any
subsidiary or affiliate of Barrick), the Trustee will transfer
and convey to Barrick the Voting Share and all of the
Trustee's rights, entitlements and interests therein, and the
Trustee irrevocably waives any entitlement to the payment of
the redemption price of $1.00, or the payment of any other
consideration, therefor.
2.4 ASSIGNMENT OF CERTAIN RIGHTS
----------------------------
For greater certainty, Homestake and Barrick hereby
acknowledge that, immediately upon the Merger becoming effective under the
Delaware General Corporation Law, Homestake has assigned to Barrick all of
Homestake's rights, entitlements and obligations under the Retraction Call
Right, the Redemption Call Right and the Liquidation Call Right, and Barrick
acknowledges receipt thereof, and the Trustee (on behalf of the holders of the
Exchangeable Shares) has consented to such assignment.
2.5 FRACTIONAL SHARES
-----------------
The parties hereto agree that, where a holder of Exchangeable
Shares becomes entitled to receive a fractional interest in a Barrick Common
Share (determined on an aggregate basis) pursuant to the Exchangeable Share
Provisions or the Original Trust Agreement (as supplemented, modified and
amended by this Agreement), the holder shall receive, in lieu of such fractional
interest in a Barrick Common Share, the cash amount equal to such fractional
interest multiplied by the Current Market Price.
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2.6 NOTICE OF EXERCISE OF RETRACTION CALL RIGHT
-------------------------------------------
Where HCI has received a Retraction Request (as defined in the
Exchangeable Share Provisions) and immediately notified Barrick and Homestake
ULC thereof in accordance with the requirements of Section 6.2(2) of the
Exchangeable Share Provisions, Barrick and Homestake ULC hereby agree to notify
HCI within two Business Days that: (a) Barrick will exercise the Retraction Call
Right and Homestake ULC will not exercise the Retraction Call Right; (b)
Homestake ULC will exercise the Retraction Call Right and Barrick will not
exercise the Retraction Call Right; or (c) neither Barrick nor Homestake ULC
will exercise the Retraction Call Right; and, in the event that Barrick or
Homestake ULC elects to exercise the Retraction Call Right, such notice shall
also specify the number of Barrick Common Shares to be delivered thereunder, the
amount of cash to be paid thereunder in lieu of any fractional Barrick Common
Shares, and the amount of cash to be paid thereunder in satisfaction of a
Dividend Amount. HCI hereby agrees to notify the holder who has delivered the
Retraction Request (as defined in the Exchangeable Share Provisions) of such
information as soon as possible following receipt of such notice.
ARTICLE 3
AMENDMENTS TO ORIGINAL TRUST AGREEMENT
--------------------------------------
The Original Trust Agreement is amended, modified and
supplemented, immediately upon the Merger becoming effective under the Delaware
General Corporation Law, as follows:
3.1 DEFINITIONS
-----------
Section 1.1 of the Original Trust Agreement is amended,
modified and supplemented:
(a) by deleting the definitions of "Canadian Dollar Equivalent"
and "HCI Board of Directors";
(b) by deleting the definition of "Current Market Price" and
replacing it with the following:
"CURRENT MARKET PRICE" means, in respect of a Barrick Common
Share, on any date, the average closing sales price of Barrick
Common Shares during a period of five consecutive trading days
ending not more than five trading days before such date on The
Toronto Stock Exchange or, if the Barrick Common Shares are
not then listed on The Toronto Stock Exchange, on such other
stock exchange or automated quotation system on which the
Barrick Common Shares are listed or quoted, as the case may
be, as may be selected by the Board of Directors for such
purposes; provided, however, that if in the opinion of the
Board of Directors the public distribution or trading activity
of Barrick Common Shares during such period is inadequate to
create a market that reflects the fair market value of the
Barrick Common Shares, then the Current Market Price of a
Barrick Common Share shall be determined by the Board of
Directors based upon the advice of
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such qualified independent financial advisors as the Board of
Directors may deem to be appropriate, and provided further
that any such selection, opinion or determination by the Board
of Directors shall be conclusive and binding.;
(c) by deleting the definition of "Dividend Amount" and replacing
it with the following:
"DIVIDEND AMOUNT" means, as at any date, an amount equal to
the full amount of all dividends and distributions then
declared and unpaid on each Exchangeable Share plus 53% of the
amount of all dividends and distributions declared on each
Barrick Common Share in respect of which no dividend or
distribution has then been declared on each Exchangeable Share
in accordance with the Exchangeable Share Provisions.
(d) by deleting the definition of "Homestake Common Stock" and
replacing it with the following:
"BARRICK COMMON SHARES" means the common shares in the capital
of Barrick and any other securities into which such shares may
be changed or for which such shares may be exchanged (whether
or not Barrick shall be the issuer of such other securities)
and any other consideration which may be received by the
holders of such shares, pursuant to a recapitalization,
reconstruction, reorganization or reclassification of, or
amalgamation, merger, liquidation or similar transaction,
affecting such shares.;
(e) by deleting the definition of "Trustee" and replacing it with
the following:
"TRUSTEE" means Computershare Trust Company of Canada and,
subject to the provisions of Article 10 hereof, includes any
successor trustee or permitted assigns.;
(f) by deleting the definition of "Voting Share" and replacing it
with the following:
"VOTING SHARE" means the first preferred share, series C
special voting share of Barrick, issued by Barrick to and
deposited with the Trustee, which entitles the holder to
exercise the Voting Rights.; and
(g) by deleting the words "each of Xxx Xxxxxxxxx, Xxxxxxxxxx,
Xxxxxxx, Xxxxxxx and Vancouver, British Columbia" in the
definition of "Business Day" and replacing them with "Toronto,
Ontario".
3.2 CONFORMING CHANGES
------------------
The Original Trust Agreement is amended, modified and
supplemented:
(a) by deleting the words and phrases set forth below wherever
they appear in the Original Trust Agreement (other than in the
recitals thereto and in the definition of "Holdco") and
replacing them with the words and phrases set forth opposite:
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DELETION REPLACEMENT
-------- -----------
Homestake Barrick
Homestake Board of Directors Barrick Board of Directors
Homestake Consent Barrick Resolution
Homestake Meeting Barrick Meeting
Homestake Successor Barrick Successor
shares of Homestake Common Stock Barrick Common Shares
Homestake Common Stock Barrick Common Shares
(b) by deleting the phrase "including without limitation, the
delivery of Homestake Common Stock to the holders of
Exchangeable Shares in accordance with the Plan of Arrangement
including the Exchangeable Share Provisions" from Section
5.10;
(c) by deleting the phrases "or, prior to the Effective Date, of
Prime" and "the Plan of Arrangement," in each instance where
found in Section 6.6;
(d) by deleting the phrases "under the Plan of Arrangement," and
"of the Plan of Arrangement," in each instance where found in
Section 7.3;
(e) by deleting Section 6.11 and replacing it with the following:
6.11 DUE PERFORMANCE. On or after the effective date of the
Merger, Barrick shall duly and timely perform all of the
obligations that may arise upon the exercise of rights by any
holder of Exchangeable Shares. Barrick shall be responsible
for the due performance of all of Holdco's obligations
hereunder and under the Exchangeable Share Provisions, except
that in respect of the rights of Holdco under the Liquidation
Call Right, the Redemption Call Right and the Retraction Call
Right, Xxxxxxx'x obligation shall be limited to acting to
ensure that Holdco will exercise its rights under the
Liquidation Call Right, the Redemption Call Right and the
Retraction Call Right only in circumstances where Holdco is
able to duly and timely perform in accordance with applicable
law its obligations with respect to the Liquidation Call
Right, the Redemption Call Right and the Retraction Call
Right.;
(f) by inserting the words "53% of" immediately before the phrase
"an equivalent dividend" in each instance where such phrase is
found in Section 6.1;
(g) by deleting the words "as is equal to the sum of" in Section
6.3 and replacing them with "as is equal to 53% of the sum
of";
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(h) by deleting the words "the economic equivalent" in each
instance where found in Section 6.7(1) and replacing them with
"53% of the economic equivalent";
(i) by adding the phrase "(taking into account the exchange ratio
at which the Exchangeable Shares are exchangeable for Barrick
Common Shares)" immediately following the words "on an
economically equivalent basis" where found in Section 6.8;
(j) by deleting Section 14.5 and replacing it with the following:
14.5 RISK OF PAYMENTS BY POST. Whenever payments are to be
made or documents are to be sent to any Non-Affiliated Holder
by the Trustee, HCI or Barrick or by such Non-Affiliated
Holder to the Trustee, Barrick or HCI, the making of such
payment or sending of such document sent through the post or
by courier shall be at the risk of HCI, in the case of
payments made or documents sent by the Trustee, HCI or
Barrick, and at the risk of the Non-Affiliated Holder, in the
case of payments made or documents sent by the Non-Affiliated
Holder.
(k) by deleting Section 14.8.
3.3 VOTING SHARE AND VOTING RIGHTS
------------------------------
The Original Trust Agreement is amended, modified and
supplemented:
(a) by deleting the first two sentences of Section 3.1;
(b) by deleting the word "one vote" in Section 4.2 and replacing
it with "0.53 votes"; and
(c) by deleting Section 5.4 and replacing it with the following:
5.4 PURCHASE PRICE. The purchase price payable by Barrick for
each Exchangeable Share to be purchased by Barrick under the
Exchange Right shall be an amount per share equal to (a) 53%
of the Current Market Price of a Barrick Common Share on the
last Business Day prior to the day of closing of the purchase
and sale of such Exchangeable Share under the Exchange Right,
which shall be satisfied in full by causing to be delivered to
such holder 0.53 Barrick Common Shares, plus (b) the Dividend
Amount, if any, as of the last Business Day prior to the day
of closing of the purchase and sale of such Exchangeable Share
under the Exchange Right.
3.4 ARTICLE 14 - NOTICE
-------------------
The Original Trust Agreement is amended, modified and
supplemented by deleting paragraphs (a), (b) and (c) of Section 14.3 and
replacing them with the following:
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(a) in the case of a Notice to Barrick at:
Xxxxxxx Gold Corporation
Royal Bank Xxxxx
Xxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 2I3
Attention: General Counsel
Fax: (000) 000-0000
(b) in the case of a Notice to Homestake or HCI at:
Homestake Mining Company
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
(c) in the case of a Notice to the Trustee at:
Computershare Trust Company of Canada
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Corporate Trust
Fax: (000) 000-0000
ARTICLE 4
ASSIGNMENT OF TRUSTS
--------------------
4.1 SALE OF ASSETS OF MONTREAL TRUST
--------------------------------
Computershare and Montreal Trust hereby acknowledge and
represent that Computershare acquired the stock transfer and corporate trust
businesses of Montreal Trust pursuant to an Asset Purchase Agreement dated as of
June 30, 2000 (the "Trustee Change Effective Date") and, pursuant thereto,
Montreal Trust has agreed to transfer to Computershare the appointment as
trustee under the Original Trust Agreement, subject to the terms thereof and to
the agreement of the parties thereto. In order to give effect to the foregoing,
Montreal Trust desires to resign as trustee under the Original Trust Agreement
and to be discharged from the trusts thereof and to transfer to Computershare
all of its rights, powers and trusts under the Original Trust Agreement, and
Computershare desires to accept such appointment. Computershare hereby
represents that it meets all of the qualifications required of a new trustee
under the Original Trust Agreement.
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4.2 RESIGNATION OF MONTREAL TRUST
-----------------------------
Montreal Trust hereby resigns as trustee under, and is hereby
discharged from the trusts of, the Original Trust Agreement, effective as of the
Trustee Change Effective Date. Homestake and HCI hereby accept such resignation,
waiving any required period of notice that may be set forth in the Original
Trust Agreement.
4.3 APPOINTMENT OF COMPUTERSHARE
----------------------------
Homestake and HCI hereby appoint Computershare as successor
trustee under the Original Trust Agreement in the place and stead of Montreal
Trust and with like effect as if originally named as trustee under the Original
Trust Agreement, effective as of the Trustee Change Effective Date, and
Computershare hereby accepts such appointment. The parties hereby agree that
Montreal Trust shall not be responsible for any liabilities that may arise
pursuant to Computershare's administration of the trusteeship after the Trustee
Change Effective Date. For greater certainty, however, nothing in this Agreement
shall in any way release Montreal Trust from or affect its liabilities, duties
or obligations under the Original Trust Agreement arising prior to the Trustee
Change Effective Date.
4.4 TRANSFER AND ASSIGNMENT
-----------------------
Montreal Trust hereby transfers and assigns to Computershare,
upon the trusts expressed in the Original Trust Agreement, all of its rights,
powers and trusts as trustee under the Original Trust Agreement, effective as of
the Trustee Change Effective Date. Computershare as successor trustee hereby
accepts the trusts in the Original Trust Agreement declared and provided and
agrees to perform the same upon the terms and conditions herein and in the
Original Trust Agreement set forth. Montreal Trust agrees to transfer and
deliver to Computershare as soon as practicable, and Computershare agrees to
accept, any and all records, documents, monies and other property that may be
held by Montreal Trust in connection with the Original Trust Agreement.
4.5 FURTHER ASSURANCES
------------------
Each party hereto agrees to execute and deliver all such
documents and instruments and do such other acts as may be necessary or
advisable to give effect to the assignment of trusts hereunder from Montreal
Trust to Computershare.
ARTICLE 5
GENERAL
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5.1 ENUREMENT
---------
This Agreement shall be binding upon and enure to the benefit
of the parties hereto and their respective successors (including any successor
by reason of amalgamation of any party) and assigns and to the benefit of the
Non-Affiliated Holders.
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5.2 ATTORNMENT
----------
Each of the parties hereto agrees that any action or
proceeding arising out of or relating to this Agreement or the Original Trust
Agreement (as amended, modified and supplemented hereby) may be instituted in
the courts of
Ontario, waives any objection which it may have now or hereafter
to the venue of any such action or proceeding, irrevocably submits to the
jurisdiction of the said courts in any such action or proceeding, and agrees to
be bound by any final and unappealable judgment of the said courts.
5.3 EXECUTION AND DELIVERY
----------------------
This Agreement may be executed by the Parties in counterparts
and may be executed and delivered by facsimile and all such counterparts and
facsimiles shall together constitute one and the same agreement.
IN WITNESS OF WHICH the parties have duly executed this
Agreement.
XXXXXXX GOLD CORPORATION
By:
------------------------------
Name:
Title:
HOMESTAKE MINING COMPANY
By:
------------------------------
Name:
Title:
HOMESTAKE CANADA INC.
By:
------------------------------
Name:
Title:
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HOMESTAKE CANADA HOLDINGS
COMPANY
By:
------------------------------
Name:
Title:
COMPUTERSHARE TRUST COMPANY
OF CANADA
By:
------------------------------
Name:
Title:
MONTREAL TRUST COMPANY OF
CANADA
By:
------------------------------
Name:
Title:
