IAMGOLD CORPORATION (“IAMGOLD”) and OREZONE RESOURCES INC. (“Orezone”) and 7086130 CANADA INC. (“New Orezone”)
Exhibit
99.1
IAMGOLD
CORPORATION
(“IAMGOLD”)
and
(“Orezone”)
and
7086130
CANADA INC.
(“New
Orezone”)
Dated
December 10, 2008
SCHEDULES
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SCHEDULE
A
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-
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Plan
of Arrangement under Section 192 of the Business Corporations
Act (Canada)
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SCHEDULE
B
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-
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IAMGOLD
Subsidiaries
|
|
SCHEDULE
C
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-
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Orezone
Subsidiaries
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SCHEDULE
D
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-
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Essakane
Property and Essakane Contracts
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SCHEDULE
E
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-
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Directors
and Officers of Orezone
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TABLE
OF CONTENTS
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Article
1 INTERPRETATION
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5
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|
Definitions
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5
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Number
and Gender
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16
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Interpretation
Not Affected by Headings
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16
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|
Date
of Any Action
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17
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References
to Statutes
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17
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References
to Persons
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17
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Accounting
Matters
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17
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|
Knowledge
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17
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Schedules
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17
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Article
2 THE ARRANGEMENT
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17
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Plan
of Arrangement
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17
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Effective
Date
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18
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Interim
Order
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18
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Final
Order
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18
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|
Arrangement
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18
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Closing
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18
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Articles
of Arrangement
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19
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Article
3 REPRESENTATIONS AND WARRANTIES
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19
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Representations
and Warranties of IAMGOLD
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19
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Representations
and Warranties of Orezone and New Orezone
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22
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|
Survival
of Representations and Warranties
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35
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Article
4 COVENANTS
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36
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Covenants
of Orezone and New Orezone
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36
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Covenants
of Orezone and New Orezone Regarding
Non-Solicitation
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42
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Right
to Accept a Superior Proposal
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45
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|
Covenants
of Orezone and New Orezone Regarding Reorganization
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46
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|
Covenants
of IAMGOLD
|
48
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|
Change
of Xxx Xxxxxxx Xxxx
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00
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|
Xxxxxx
Xxxxxx Tax Matters
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49
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Article
5 CONDITIONS PRECEDENT
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49
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Mutual
Conditions Precedent of Orezone, New Orezone and
IAMGOLD
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49
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Conditions
Precedent to Obligations of Orezone and New Orezone
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51
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Conditions
Precedent to Obligations of IAMGOLD
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52
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Co-operation
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54
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Notice
and Cure Provisions
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54
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Merger
of Conditions
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55
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Article
6 TRANSITION PERIOD AND INSURANCE
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55
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Transition
Period
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55
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Insurance
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55
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Article
7 TERMINATION AND AMENDMENT
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56
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Rights
of Termination
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56
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Termination
Deadline
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56
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Termination
Fee
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57
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Amendment
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57
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Waiver
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58
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Article
8 ADDITIONAL COVENANTS AND INDEMNIFICATION
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58
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Other
Business
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58
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Agreements
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58
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Post-Closing
Adjustments
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58
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Indemnification
by New Orezone
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59
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Remedies
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60
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Article
9 PRIVATE PLACEMENT
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60
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Subscription
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60
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Representations,
Warranties, Covenants and Acknowledgements of
IAMGOLD
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60
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Representations
and Warranties of Orezone
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63
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Survival
of Representations
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63
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Covenants
of Orezone
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64
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Conditions
to Closing the Private Placement
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64
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Payment
of Subscription Price
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65
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Use
of Proceeds
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65
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Article
10 GENERAL
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65
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Notice
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65
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Binding
Effect
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67
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No
Assignment
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67
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Public
Statements
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67
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Entire
Agreement
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67
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Time
of Essence
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67
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Severability
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67
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Counterpart
Executions and Facsimile Transmissions
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67
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Fees
and Expenses
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67
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Investigation
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68
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Further
Assurances
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68
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Waiver
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68
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Governing
Law
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68
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THIS ARRANGEMENT AGREEMENT is
dated the 10th day of
December, 2008.
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AMONG:
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IAMGOLD CORPORATION, a
corporation existing under the laws of Canada;
(“IAMGOLD”)
|
|
AND:
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OREZONE RESOURCES INC.,
a corporation existing under the laws of Canada;
(“Orezone”)
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AND:
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7086130 CANADA INC., a
corporation existing under the laws of Canada;
(“New
Orezone”)
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WHEREAS:
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(A)
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New
Orezone is a wholly-owned Subsidiary of
Orezone.
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(B)
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IAMGOLD,
New Orezone and Orezone agree to proceed with a business combination
transaction providing for the transfer of part of the business of Orezone
to New Orezone, the distribution of the New Orezone Shares to Orezone
Shareholders and the acquisition by IAMGOLD of all of the Orezone
Shares.
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(C)
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The
Parties hereto intend to carry out the proposed business combination
transaction by way of a plan of arrangement under the provisions of the
Canada Business
Corporations Act.
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NOW THEREFORE THIS AGREEMENT
WITNESSES THAT, in consideration of the respective covenants and
agreements hereinafter contained and other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the Parties hereto
agree as follows:
ARTICLE
1
INTERPRETATION
Definitions
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1.1
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In
this Agreement and in the recitals hereto, unless there is something in
the context or subject matter inconsistent therewith, the following words
and terms shall have the meanings hereinafter set
out:
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(a)
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“Acquisition Proposal”
means, other than from or with IAMGOLD or an IAMGOLD Subsidiary, any
merger, amalgamation, statutory arrangement, recapitalization, take-over
bid, sale of material properties or assets (including, without limitation,
the sale of all or any part of the Orezone Assets or the
Essakane
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Property),
any lease, long-term supply agreement or other arrangement having the same
economic effect as a sale of any such material properties or assets, any
sale or grant of a royalty or similar type transaction with respect to the
Essakane Property (excluding the Permitted Royalty Discussions), any
liquidation, winding-up, sale or redemption of a material number of shares
or rights or interests therein or thereto or any similar transaction
involving Orezone or any of the Orezone Subsidiaries, or any other similar
transaction which would, or could, impede the completion of the
Arrangement or any of the other transactions contemplated in this
Agreement or a written inquiry or proposal to do so, excluding the
Arrangement, the Private Placement and the other transactions contemplated
hereby;
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(b)
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“Agreement” means this
agreement among IAMGOLD, Orezone and New Orezone entered into for the
purpose of effecting the Arrangement, including the schedules attached
hereto, as the same may be supplemented or amended from time to
time;
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(c)
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“Alternext” means the
NYSE Alternext U.S., LLC;
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(d)
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“Applicable Laws” means
any domestic or foreign statute, law, ordinance, rule, regulation,
restriction, published and legally binding regulatory policy or guideline,
by-law (zoning or otherwise), or order or any consent, exemption, approval
or licence of any domestic or foreign Governmental Entity that applies in
whole or in part to the Parties hereto, as the context requires, or to
their respective businesses, undertakings, properties or securities
including, without limitation, Applicable Securities
Laws;
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|
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(e)
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“Applicable Securities
Laws” means Canadian Securities Laws and United States Securities
Laws as applicable in the
circumstances;
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(f)
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“Arrangement” means the
arrangement under the provisions of section 192 of the CBCA, on the terms
and conditions set forth in the Plan of Arrangement, subject to any
amendment or supplement thereto made in accordance with this Agreement and
the Plan of Arrangement or made at the direction of the Court in the Final
Order;
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(g)
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“Arrangement Resolution”
means the Special Resolution of Orezone Shareholders approving the
Arrangement;
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(h)
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“Articles of Arrangement”
means the articles of arrangement of Orezone in respect of the Arrangement
required by the CBCA to be filed with the Director after the Final Order
is made;
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(i)
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“Bridge Facility
Agreement” means the Secured Bridge Facility Agreement for
U.S.$40,000,000 dated August 29, 2008 and made between Orezone Essakane
Limited and The Standard Bank of South Africa
Limited;
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(j)
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“Bridge Loan Documents”
means the Bridge Facility Agreement and each of the Finance Documents (as
defined in the Bridge Facility Agreement)
collectively;
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(k)
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“BSE” means the Botswana
Stock Exchange;
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(l)
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“Business Day” means a
day which is not a Saturday, Sunday or a civic or statutory holiday in
Toronto, Ontario;
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6
..
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(m)
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“Canadian GAAP” means
accounting principles generally accepted in
Canada;
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(n)
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“Canadian Securities
Laws” means the Securities Act
(Ontario) and the equivalent legislation in the other provinces and in the
territories of Canada, as amended from time to time, the rules,
regulations and forms made or promulgated under any such statute and the
published national instruments, multilateral instruments, policies,
bulletins and notices of the securities commissions and similar regulatory
authorities of each of the provinces and territories of Canada and the
published rules and policies of the
TSX;
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(o)
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“CBCA” means the Canada Business Corporations
Act, as amended;
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(p)
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“Claim” has the meaning
ascribed to such term in section 8.4 of this
Agreement;
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(q)
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“Closing Date” means the
Business Day that is three Business Days after the granting of the Final
Order or such other date as the Parties hereto may
agree;
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(r)
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“Code” means the Internal Revenue Code of
1986 (United States), as
amended;
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(s)
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“Competition Act” means
the Competition
Act (Canada);
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(t)
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“Confidentiality
Agreement” means the confidentiality agreement dated July 22, 2008
between IAMGOLD and Orezone, as
amended;
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(u)
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“Convertible Debenture”
means the 6% convertible debenture dated July 1, 2008 and due July 1,
2011, in the amount of CAD$10,000,000 issued by Orezone to the
Debentureholder;
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(v)
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“Convertible Debenture Waiver
Agreement” means the agreement among IAMGOLD, Orezone and the
Debentureholder dated December 10, 2008 relating to the Convertible
Debenture, as amended from time to
time;
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(w)
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“Court” means the Ontario
Superior Court of Justice (Commercial
List);
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(x)
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“Debentureholder” means
MinQuest Fund I, L.P.;
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(y)
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“Director” means the
Director appointed pursuant to section 260 the
CBCA;
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(z)
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“Dissent Rights” means
the rights of dissent of Orezone Shareholders in respect of the
Arrangement Resolution described in the Plan of
Arrangement;
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(aa)
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“Dissenting Orezone
Shareholder” has the meaning ascribed thereto in the Plan of
Arrangement;
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(bb)
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“Effective Date” means
the date shown in the certificate of arrangement issued in accordance with
section 262 of the CBCA in respect of the Arrangement, being the Closing
Date, or such other date as may be agreed to by the Parties
hereto;
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(cc)
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“Effective Time” means
the time when the Arrangement will be deemed to have been completed, which
shall be 12:01 a.m., Toronto time, on the Effective
Date;
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7
..
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(dd)
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“Encumbrance” means any
mortgage, hypothec, 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;
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(ee)
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“Environmental Approvals”
means all permits, certificates, licences, authorizations, consents,
instructions, registrations, directions or approvals issued or required by
any Governmental Entity pursuant to any Environmental
Law;
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(ff)
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“Environmental Laws”
means all Applicable Laws relating to pollution, the protection of the
environment or public health and safety including all Environmental
Approvals;
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(gg)
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“Essakane Contracts”
means the contracts listed in schedule D attached
hereto;
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(hh)
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“Essakane Property” means
the Essakane gold project in Burkina Faso held by Orezone, Essakane S.A.
or Essakane s.a.r.l., as more particularly described in schedule D
attached hereto;
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(ii)
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“Essakane Royalty” has
the meaning ascribed to such term in paragraph 4.1(m)(vii)
hereof;
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(jj)
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“Essakane Subsidiaries”
means Essakane (BVI) Limited, Orezone Essakane (BVI) Limited, Essakane
s.a.r.l., Gold Fields Burkina Faso s.a.r.l. and Essakane
S.A.;
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(kk)
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“Essakane Transfer” has
the meaning ascribed to such term in subsection 4.4(a)
hereof;
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(ll)
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“Exchange Ratio” has the
meaning ascribed thereto in the Plan of
Arrangement;
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(mm)
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“Fairness Opinion” means
the verbal and the subsequent written opinion of the Financial Advisor
that the consideration to be received by Orezone Shareholders, other than
IAMGOLD, pursuant to the Arrangement is fair, from a financial point of
view, to the Orezone Shareholders, subject to the limitations and
qualifications set out in the Fairness
Opinion;
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(nn)
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“Final Order” means the
final order of the Court approving the Arrangement, as such order may be
amended by the Court (with the consent of IAMGOLD and Orezone) at any time
prior to the Effective Date or, if appealed, then unless such appeal is
withdrawn or denied, as affirmed or as amended on
appeal;
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(oo)
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“Financial Advisor” means
BMO Xxxxxxx Xxxxx Inc.;
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(pp)
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“Governmental Entity”
means any applicable (i) multinational, federal, provincial, state,
regional, municipal, local or other government, governmental or public
department, central bank, court, tribunal, arbitral body, commission,
board, bureau, agency,
domestic or foreign, (ii) any subdivision, agent, commission, board or
authority of any of the foregoing, or (iii) any quasi-governmental or
private body exercising any regulatory, expropriation or taxing authority
under or for the account of any of the
foregoing;
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8
..
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(qq)
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“Hazardous Substance”
means any chemical, material or substance in any form, whether solid,
liquid, gaseous, semisolid or any combination thereof, whether waste
material, raw material, finished product, intermediate product, by-product
or any other material or article, that is listed or regulated under any
Environmental Laws as a hazardous substance, toxic substance, waste or
contaminant or is otherwise listed or regulated under any Environmental
Laws because it poses a hazard to human health or the environment,
including petroleum products, asbestos, PCBs, urea formaldehyde foam
insulation and lead-containing paints or
coatings;
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(rr)
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“IAMGOLD” means IAMGOLD
Corporation, a corporation existing under the laws of
Canada;
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(ss)
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“IAMGOLD Board” means the
board of directors of IAMGOLD;
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(tt)
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“IAMGOLD Disclosure
Documents” means
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(i)
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the
renewal annual information form of IAMGOLD for the year ended December 31,
2007;
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(ii)
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the
annual report of IAMGOLD for the year ended December 31,
2007;
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(iii)
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the
management information circular of IAMGOLD dated April 11,
2008;
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(iv)
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the
annual audited consolidated financial statements of IAMGOLD for the year
ended December 31, 2007;
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(v)
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the
unaudited interim consolidated financial statements of IAMGOLD for the
nine months ended September 30,
2008;
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(vi)
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the
management discussion and analysis of IAMGOLD for the year ended December
31, 2007;
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(vii)
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the
management discussion and analysis of IAMGOLD for the nine months ended
September 30, 2008;
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(viii)
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all
material change reports filed by IAMGOLD on SEDAR after December 31, 2007;
and
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(ix)
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all
press releases filed by IAMGOLD on SEDAR after December 31,
2007;
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(uu)
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“IAMGOLD Disclosure
Letter” means the letter dated the date hereof delivered by IAMGOLD
to Orezone in the form accepted by
Orezone;
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(vv)
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“IAMGOLD Replacement
Options” has the meaning ascribed to such term in subsection 3.2(d)
hereof;
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(ww)
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“IAMGOLD Shares” means
the common shares which IAMGOLD is authorized to issue as presently
constituted;
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9
..
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(xx)
|
“IAMGOLD Subsidiaries”
means the subsidiaries of IAMGOLD which are set out in schedule B attached
hereto and “IAMGOLD
Subsidiary” refers to any one of
them;
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(yy)
|
“IFRS” means
International Financial Reporting
Standards;
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(zz)
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“Indemnified Liability”
means a liability or obligation accruing or becoming payable by Orezone,
Essakane (BVI) Limited, Orezone Essakane (BVI) Limited, Gold Fields
Burkina Faso s.a.r.l., Essakane s.a.r.l. or Essakane S.A. which was
incurred or accrued prior to the Effective Time and that relates
principally to a project or a property interest (including the operations
or activities in connection therewith) of Orezone or the Orezone
Subsidiaries (prior to the Effective Time) other than the Essakane
Property, but provided that any such liability or obligation disclosed in
the Orezone Disclosure Letter or which relates to an Essakane Contract or
that relates to operations or activities on the Essakane Property prior to
the Effective Time shall not be an Indemnified
Liability;
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(aaa)
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“Indemnified Taxes” means
(i) the amount of any Tax which is payable to any Governmental Entity by
Orezone, New Orezone or any of the Orezone Subsidiaries, as the case may
be, in respect of the Orezone Inc. Transfer or the settlement of the OEL
Debt as described in section 4.6 hereof, provided that Orezone, New
Orezone and each of the Orezone Subsidiaries, as the case may be, shall
have claimed all tax deductions and credits available immediately before
the Effective Date, and (ii) the amount of any Taxes assessed or
reassessed by any Governmental Entity against Orezone, New Orezone or any
of the Orezone Subsidiaries, as the case may be, for any period ending at
or before the Effective Time;
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(bbb)
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“Indemnity Notice” has
the meaning ascribed to such term in section 8.4
hereof;
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(ccc)
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"Inter-Company Accounts"
means the inter-company accounts and loans (including but not limited to
the receivable and payable accounts and all shareholder loans) of each of
Orezone and the Essakane Subsidiaries with or to each of New Orezone and
the Non-Essakane Subsidiaries;
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(ddd)
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“Interim Order” means the
interim order of the Court providing for, among other things, the calling
and holding of the Orezone Meeting, as such order may be amended,
supplemented or varied by the
Court;
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(eee)
|
“Kossa Gold Rights
Agreement” has the meaning ascribed to such term in section 8.2 of
this Agreement;
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(fff)
|
“Kossa Permit” means the
exploration permit issued on October 26, 2007 to Orezone (BVI) Inc. as
ARRETE N° 00155/MME/DM relating to the mineral exploration
and development area located in the Tillabéri Province of the Republic of
Niger;
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(ggg)
|
“Lock-up Agreements”
means the lock-up agreements dated the date hereof and made between
IAMGOLD and the Locked-up
Shareholders;
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(hhh)
|
“Locked-up Shareholders”
means all of the directors and officers of Orezone listed in schedule E
attached hereto and the
Debentureholder;
|
10
..
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(iii)
|
“Losses”, in respect of
any matter, means all claims, demands, proceedings, losses, damages,
liabilities, deficiencies, costs and expenses (including all interest,
penalties, amounts paid in settlement and reasonable out-of-pocket legal
and other professional fees and disbursements) arising directly or
indirectly as a consequence of such matter less in all cases any insurance
and/or tax benefits received or receivable in respect
thereof;
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(jjj)
|
“Material Adverse Change”
means, in respect of IAMGOLD and the IAMGOLD Subsidiaries, New Orezone,
Orezone and the Orezone Subsidiaries, or the Essakane Property, any one or
more changes, events or occurrences, and “Material Adverse Effect”
means, in respect of IAMGOLD and the IAMGOLD Subsidiaries, New Orezone,
Orezone and the Orezone Subsidiaries or the Essakane Property, any state
of facts, which, in either case, either individually or in the aggregate,
are, or would reasonably be expected to be, material and adverse to the
business, operations, results of operations, prospects, properties,
assets, liabilities or financial condition of IAMGOLD and the IAMGOLD
Subsidiaries on a consolidated basis, or of New Orezone, or of Orezone and
the Orezone Subsidiaries on a consolidated basis, or the Essakane Property
or the right to explore, develop or exploit the Essakane Property,
respectively, other than any change, effect, event or occurrence (i)
relating to the global economy or securities markets in general, (ii)
affecting the worldwide mining industry in general and which does not have
a materially disproportionate effect on New Orezone or on IAMGOLD and the
IAMGOLD Subsidiaries on a consolidated basis, or on Orezone, New Orezone,
and the Orezone Subsidiaries on a consolidated basis, or the Essakane
Property, respectively, (iii) resulting from changes in the price of gold,
(iv) relating to the rate at which Canadian dollars can be exchanged for
United States dollars or vice versa, or (v) a
change in the trading price of the IAMGOLD Shares or the Orezone Shares
following and reasonably attributable to the disclosure of the Arrangement
and the other transactions contemplated
herein;
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(kkk)
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“Material Fact” has the
meaning ascribed to such term in the Securities Act
(Ontario), as
amended;
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(lll)
|
“MergeCo” has the meaning
ascribed to such term in subsection 4.5(h)
hereof;
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(mmm)
|
“Misrepresentation” has
the meaning ascribed thereto in the Securities Act
(Ontario), as
amended;
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|
(nnn)
|
“New Orezone” means
7086130 Canada Inc., a corporation existing under the laws of
Canada;
|
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|
(ooo)
|
“New Orezone Cash
Contribution” means the contribution by Orezone to New Orezone from
the proceeds of the Private Placement of an amount equal to $10,000,000
less the amount (if such amount is positive) equal to the sum of (a) the
amount paid to settle any New Orezone liabilities created subsequent to
the date hereof until the Effective Date (if such amount is positive) and
(b) the consolidated cash balance of New Orezone and the Non-Essakane
Subsidiaries at the Effective Date, provided that the amount of such
contribution shall not exceed
$10,000,000;
|
|
|
(ppp)
|
“New Orezone Shares”
means the common shares which New Orezone is authorized to issue as
presently
constituted;
|
11
..
|
|
(qqq)
|
“Non-Essakane
Subsidiaries” means Orezone Inc., Channel Mining (Barbados) Inc.,
Burkina Resources Inc., Niger Resources Inc., Brighton Energy Limited,
Orezone Inc. s.a.r.l. and Orezone Mali
s.a.r.l.;
|
|
|
(rrr)
|
”Non-Essakane Working
Capital” means (a) the amount of the consolidated current assets of
New Orezone and the Non-Essakane Subsidiaries, less (b) the amount of the
consolidated current liabilities of New Orezone and the Non-Essakane
Subsidiaries, in the case of each of (a) and (b) excluding Inter-Company
Accounts;
|
|
|
(sss)
|
“NYSE” means the New York Stock Exchange,
Inc.;
|
|
|
(ttt)
|
“OEL Debt” has
the meaning ascribed to such term in subsection 4.4(a)
hereof;
|
|
|
(uuu)
|
“OINC Debt” has the meaning ascribed to such term in
subsection 4.4(a)
hereof;
|
|
|
(vvv)
|
“Orezone” means Orezone Resources Inc., a corporation
existing under the laws of
Canada;
|
|
|
(www)
|
“Orezone Assets” means
all of the outstanding shares of Essakane (BVI) Limited, all of the
outstanding shares of Orezone Essakane (BVI) Limited, all of the
outstanding shares of Gold Fields Burkina Faso s.a.r.l., all of the
outstanding shares of Essakane s.a.r.l. and 90% of the outstanding shares
of Essakane
S.A.;
|
|
|
(xxx)
|
“Orezone Board” means the
board of directors of
Orezone;
|
|
|
(yyy)
|
“Orezone Convertible
Securities” means, other than the Orezone Options and the
Convertible Debenture, the outstanding warrants, including the Orezone
Warrants, convertible securities and other rights to acquire Orezone
Shares as listed in the Orezone Disclosure
Letter;
|
|
|
(zzz)
|
“Orezone Disclosure
Documents”
means:
|
|
|
(i)
|
the
annual information form of Orezone for the year ended December 31,
2007;
|
|
|
(ii)
|
the
management information circular of Orezone dated April 24,
2008;
|
|
|
(iii)
|
the
annual audited consolidated financial statements of Orezone for the year
ended December 31, 2007 and December 31,
2006;
|
|
|
(iv)
|
the
unaudited interim consolidated financial statements of Orezone for the
three and nine months ended September 30,
2008;
|
|
|
(v)
|
the
management discussion and analysis of Orezone for the year ended December
31, 2007, and the three and nine months ended September 30,
2008;
|
|
|
(vi)
|
all
material change reports filed by Orezone on SEDAR after December 31, 2007;
and
|
|
|
(vii)
|
all
press releases filed by Orezone on SEDAR after December 31,
2007;
|
12
..
|
|
(aaaa)
|
“Orezone Disclosure
Letter” means the letter dated the date hereof delivered by Orezone
to IAMGOLD in the form accepted by
IAMGOLD;
|
|
|
(bbbb)
|
“Orezone Inc. Transfer”
has the meaning ascribed to such term in subsection 4.4(a)
hereof;
|
|
|
(cccc)
|
“Orezone Information
Circular” means the management information circular (including all
appendices attached thereto), notice of meeting and proxy form to be sent
by Orezone to Orezone Shareholders soliciting the approval of the
Arrangement Resolution;
|
|
|
(dddd)
|
“Orezone Meeting” means
the special meeting of Orezone Shareholders, including any adjournment or
adjournments or postponement or postponements thereof, to be held for the
purposes of obtaining approval by Orezone Shareholders of the Arrangement
Resolution;
|
|
|
(eeee)
|
“Orezone 1997 Options”
means the outstanding options to acquire Orezone Shares listed in the
Orezone Disclosure Letter and which have been issued pursuant to the stock
option plan of Orezone as approved by the Orezone Board and by the Orezone
Shareholders in 1997;
|
|
|
(ffff)
|
“Orezone 2008 Options”
means the outstanding options to acquire Orezone Shares listed in the
Orezone Disclosure Letter and which have been issued pursuant to the stock
option plan of Orezone as approved by the Orezone Board on April 24, 2008
and by the Orezone Shareholders on May 29,
2008;
|
|
|
(gggg)
|
“Orezone Options” mean
the Orezone 1997 Options and the Orezone 2008 Options
collectively;
|
|
|
(hhhh)
|
“Orezone Shareholder
Approval” shall have the meaning ascribed to such term in
subsection 2.3(b) hereof;
|
|
|
(iiii)
|
“Orezone Shareholders”
means holders of Orezone Shares;
|
|
|
(jjjj)
|
“Orezone Shares” means
the common shares which Orezone is authorized to issue as presently
constituted;
|
|
|
(kkkk)
|
“Orezone Stock Option
Plans” means (i) the stock option plan of Orezone as approved by
the Orezone Board and by the Orezone Shareholders in 1997 and, (ii) the
stock option plan of Orezone as approved by the Orezone Board on April 24,
2008 and by the Orezone Shareholders on May 29,
2008;
|
|
|
(llll)
|
“Orezone Subsidiaries”
means the subsidiaries of Orezone, excluding New Orezone following the
Effective Time, which are set out in schedule C attached hereto and “Orezone Subsidiary”
refers to any one of them;
|
|
|
(mmmmm)
|
“Orezone Warrants” means
the warrants to purchase up to 2,000,000 Orezone Shares issued by Orezone
to Standard Bank plc under the warrant agreement dated August 29,
2008;
|
13
..
|
|
(nnnn)
|
“Party” means any one of
IAMGOLD, Orezone and New Orezone, and “Parties” means more than
one of them as the context
requires;
|
|
|
(oooo)
|
“PCMLTFA” has the meaning
ascribed thereto in subsection 9.2(n)
hereof;
|
|
|
(pppp)
|
“Permitted Royalty
Discussions” means the discussions relating to a potential granting
of a royalty in respect of the Essakane Property disclosed to IAMGOLD in
the Orezone Disclosure Letter;
|
|
|
(qqqq)
|
“Person” means any
individual, corporation, firm, partnership (including, without limitation,
a limited partnership), sole proprietorship, syndicate, joint venture,
trustee, trust, any unincorporated organization or association, any
government or instrumentality thereof and any
tribunal;
|
|
|
(rrrr)
|
“Plan” or “Plan of Arrangement”
means the plan of arrangement to be substantially in the form and content
of schedule A attached hereto as amended or varied pursuant to the terms
hereof and thereof;
|
|
|
(ssss)
|
“Pre-Acquisition
Reorganization” has the meaning ascribed to such term in subsection
4.4(c) hereof;
|
|
|
(tttt)
|
“Private Placement” has
the meaning ascribed to such term in section 9.1
hereof;
|
|
|
(uuuu)
|
“Records and Data” means
all books, contracts, documents, technical information and data (in paper
or electronic form), maps, surveys, drill core samples and assays owned by
Orezone;
|
|
|
(vvvv)
|
“Revised Termination
Deadline” has the meaning ascribed to such term in section 7.2
hereof;
|
|
|
(wwww)
|
“SEC” means the United
States Securities and Exchange
Commission;
|
|
|
(xxxx)
|
“Securities Authority”
means the appropriate securities commissions or similar regulatory
authorities in the United States (including the SEC) and in each of the
provinces of Canada;
|
|
|
(yyyy)
|
“SEDAR” means the System
for Electronic Document Analysis and Retrieval described in National
Instrument 13-101 of the Canadian Securities Administrators and available
for public view at xxx.xxxxx.xxx;
|
|
|
(zzzz)
|
“Subscription Closing
Date” means the date on which the closing of the Private Placement
shall occur at the offices of counsel to Orezone in Toronto,
Ontario;
|
|
|
(aaaaa)
|
“Subscription Price” has
the meaning ascribed to such term in section 9.1
hereof;
|
|
|
(bbbbb)
|
“Subscription Shares” has
the meaning ascribed to such term in section 9.1
hereof;
|
|
|
(ccccc)
|
“Subsidiary” means, with
respect to a specified body corporate, any body corporate of which the
specified body corporate is entitled to elect a majority of the directors
thereof and shall include any body corporate, partnership, joint venture
or other entity over which such specified body corporate exercises
direction or control or which is in a like relation to such a body
corporate, excluding any body corporate in respect of which such direction
or control is not exercised by the specified body corporate as a result of
any existing contract, agreement or
commitment;
|
14
..
|
|
(ddddd)
|
“Special Resolution” has
the meaning ascribed to such term in the
CBCA;
|
|
|
(eeeee)
|
“Superior Proposal” means
any bona fide
written Acquisition Proposal, other than the Arrangement, that the Orezone
Board determines in good faith (based upon the oral or written advice of
the Financial Advisor and after consultation with outside legal counsel)
(i) is reasonably capable of being completed without undue delay, taking
into account all legal, financial, regulatory and other aspects of such
proposal and the Person making such proposal, (ii) is not subject to a due
diligence condition, (iii) is made to all Orezone Shareholders in
compliance with Applicable Securities Laws, (iv) is not conditional on
obtaining financing, and (v) would, if completed in accordance with its
terms, result in a transaction more favourable to Orezone Shareholders,
from a financial point of view, than the
Arrangement;
|
|
|
(fffff)
|
“Superior Proposal
Notice” has the meaning ascribed to such term in subsection 4.3(a)
hereof;
|
|
|
(ggggg)
|
“Tax” and “Taxes” means all taxes,
assessments, charges, dues, duties, rates, fees imposts, levies and
similar charges of any kind lawfully levied, assessed or imposed by any
Governmental Entity, including all income taxes (including any tax on or
based upon net income, gross income, income as specially defined,
earnings, profits or selected items of income, earnings or profits) and
all capital taxes, gross receipts taxes, environmental taxes and charges,
sales taxes, use taxes, ad valorem taxes, value
added taxes, subsoil use or extraction taxes and ownership fees, transfer
taxes (including, without limitation, taxes relating to the transfer of
interests in real property or entities holding interests therein),
franchise taxes, licence taxes, withholding taxes, health taxes, payroll
taxes, employment taxes, Canada or Quebec Pension Plan premiums, excise,
severance, social security, workers’ compensation, employment insurance or
compensation taxes, mandatory pension and other social fund taxes or
premium, stamp taxes, occupation taxes, premium taxes, property taxes,
windfall profits taxes, alternative or add-on minimum taxes, goods and
services tax, harmonized sales tax, customs duties or other taxes, fees,
imports, assessments
or charges or any kind whatsoever, and any instalments in respect thereof,
together with any interest and any penalties or additional amounts imposed
by any taxing authority (domestic or foreign) on such entity, and any
interest, penalties, additional taxes and additions to tax imposed with
respect to the foregoing;
|
|
|
(hhhhh)
|
“Tax Act” means the Income Tax Act
(Canada), as amended and the regulations thereunder, as
amended;
|
|
|
(iiiii)
|
“Tax Return” means any
return, election, declaration, report, claim for refund, or information
return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment
thereof;
|
|
|
(jjjjj)
|
“Termination Deadline”
means April 15, 2009 or such other date as the Parties hereto may
otherwise agree upon in writing;
|
15
..
|
|
(kkkkk)
|
“Termination Fee” has the
meaning ascribed to such term in section 7.3
hereof;
|
|
|
(lllll)
|
“Transition Period” has
the meaning ascribed to such term in section 6.1
hereof;
|
|
|
(mmmmm)
|
“Treasury Regulation”
means the Income Tax Regulations, including Temporary Regulations,
promulgated under the Code, as such regulations may be amended, modified
or supplemented from time to time (or any corresponding provisions of
succeeding
regulations);
|
|
|
(nnnnn)
|
“TSX” means the Toronto
Stock
Exchange;
|
|
|
(ooooo)
|
“United States Securities
Laws” means the 1933 Act, the 1934 Act, together with the
applicable blue sky or securities legislation in the states of the United
States, and the published rules and policies of the NYSE and
Alternext;
|
|
|
(ppppp)
|
“1933 Act” means the
Securities Act of
1933, as amended, of the United States of America, and the rules
and regulations promulgated from time to time
thereunder;
|
|
|
(qqqqq)
|
“1934 Act” means the
Securities Exchange Act
of 1934, as amended, of the United States of America, and the rules
and regulations promulgated from time to time thereunder;
and
|
|
|
(rrrrr)
|
“1940 Act” means the
Investment Company Act
of 1940, as amended, of the United States of America, and the rules
and regulations promulgated from time to time
thereunder.
|
In
addition, words and terms used but not defined herein that are defined in the
CBCA shall have the same meaning herein as in the CBCA unless the context
otherwise requires.
Number
and Gender
|
1.2
|
In
this Agreement, unless the context otherwise requires, words importing the
singular include the plural and vice versa and words importing gender
include all genders and neuter.
|
Interpretation
Not Affected by Headings
|
1.3
|
The division of this Agreement into articles, sections, subsections, paragraphs and subparagraphs and the insertion of headings herein are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. The terms “this Agreement”, “hereof’, “herein”, “hereto”, “hereunder” and similar expressions refer to this Agreement and the schedules attached hereto and not to any particular article, section or other portion hereof and include any agreement, schedule or instrument supplementary or ancillary hereto or thereto. The word “including”, when following a general statement or term, is not to be construed as limiting the general statement or term to any specific item or matter set forth or to similar items or matters, but rather as permitting the general statement or term to refer also to all other items or matters that could reasonably fall within its broadest possible scope. |
16
..
Date
of Any Action
|
1.4
|
If
the date on which any action is required to be taken hereunder by any
Party hereto is not a business day in the place where the action is
required to be taken, that action will be required to be taken on the next
succeeding day which is a business day in that
place.
|
References
to Statutes
|
1.5
|
A
reference to a statute includes all regulations made thereunder, all
amendments to the statute or regulations in force from time to time, and
every statute or regulation that supplements or supersedes such statute or
regulations.
|
References
to Persons
|
1.6
|
A
reference to a Person includes any successor to that
Person.
|
Accounting
Matters
|
1.7
|
Unless
otherwise stated, all accounting terms used in this Agreement shall have
the meanings attributed thereto under Canadian GAAP and all determinations
of an accounting nature required to be made shall be made in a manner
consistent with Canadian GAAP.
|
Knowledge
|
1.8
|
Each
reference herein to the knowledge of a Party hereto means, unless
otherwise specified, the actual knowledge of the officers and directors of
such Party hereto.
|
Schedules
|
1.9
|
The
following are the schedules attached to and incorporated in this Agreement
by reference and deemed to be part
hereof:
|
|
Schedule
A
|
-
|
Plan
of Arrangement under Section 192 of the Business Corporations
Act (Canada)
|
|
Schedule
B
|
-
|
IAMGOLD
Subsidiaries
|
|
Schedule
C
|
-
|
Orezone
Subsidiaries
|
|
Schedule
D
|
-
|
Essakane
Property and Essakane Contracts
|
|
Schedule
E
|
Directors
and Officers of Orezone
|
ARTICLE
2
THE
ARRANGEMENT
Plan
of Arrangement
|
2.1
|
The
Parties hereto agree to effect the Arrangement under the CBCA pursuant to
the terms and conditions set out in this Agreement and the Plan of
Arrangement.
|
17
..
Effective
Date
|
2.2
|
The
Arrangement shall become effective at the Effective Time on the Effective
Date.
|
Interim
Order
|
2.3
|
As
soon as is reasonably practicable after the date of execution of this
Agreement, Orezone and New Orezone shall file, proceed with and diligently
prosecute an application to the Court for the Interim Order which shall
request that the Interim Order
provide:
|
|
|
(a)
|
for
the class of Persons to whom notice is to be provided in respect of the
Arrangement and for the Orezone Meeting and for the manner in which such
notice is to be provided;
|
|
|
(b)
|
that
the only requisite approval required for the Arrangement Resolution shall
be 66 2/3% of the votes cast, in person or by proxy, on the Arrangement
Resolution by Orezone Shareholders at the Orezone Meeting (the “Orezone Shareholder
Approval”);
|
|
|
(c)
|
for
the grant of Dissent Rights as contemplated in the Plan of
Arrangement;
|
|
|
(d)
|
that,
in all other respects, the terms, restrictions and conditions of the
articles and by-laws of Orezone, including the quorum requirement and
other matters, shall apply in respect of the Orezone
Meeting;
|
|
|
(e)
|
for
notice requirements with respect to the presentation of the application to
the Court for the Final Order;
|
|
|
(f)
|
that
the Orezone Meeting may be adjourned or postponed from time to time by
Orezone without the need for any additional approval of the Court;
and
|
|
|
(g)
|
that
the record date for Orezone Shareholders entitled to notice of, and to
vote at, the Orezone Meeting will not change in respect of any adjournment
of the Orezone Meeting.
|
Final
Order
|
2.4
|
Subject
to obtaining the approvals as contemplated by the Interim Order and as may
be directed by the Court in the Interim Order, Orezone shall forthwith
take all actions necessary or desirable to submit the Arrangement to the
Court and to apply to the Court for the Final Order in form and substance
satisfactory to IAMGOLD, acting reasonably. The notice of
motion for the approval of the Final Order shall be included in the
Orezone Information
Circular.
|
Arrangement
|
2.5
|
The
Arrangement shall be completed on the terms and subject to the conditions
contained in this Agreement and in the Plan of
Arrangement.
|
Closing
|
2.6
|
Unless
this Agreement is terminated pursuant to the provisions hereof, IAMGOLD,
Orezone and New Orezone shall meet at the offices of Fraser Xxxxxx
Casgrain LLP, Suite 3900, 1 First Canadian Place, 000 Xxxx Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxx at 8:00 a.m., Toronto time, on the Closing Date or at
such other time or on such other date as they may mutually agree upon and
each of them shall deliver to the other Parties
hereto:
|
18
..
|
|
(a)
|
the
documents required or contemplated to be delivered by it hereunder in
order to complete, or necessary or reasonably requested to be delivered by
it by one of the other Parties hereto in order to effect, the Arrangement
and the other transactions contemplated herein, excluding the Private
Placement, provided that each such document required to be dated the
Effective Date shall be dated as of, or become effective on, the Effective
Date and shall be held in escrow to be released upon the Arrangement
becoming effective; and
|
|
|
(b)
|
written
confirmation as to the satisfaction or waiver of all of the conditions in
its favour contained in Article 5
hereof.
|
Articles
of Arrangement
|
2.7
|
Subject
to the rights of termination contained in Article 7 hereof, upon the
Orezone Shareholders approving the Arrangement in accordance with the
Interim Order, Orezone and New Orezone obtaining the Final Order and the
other conditions contained in Article 5 hereof being complied with or
waived, Orezone and New Orezone shall on the Effective Date jointly file
the Articles of Arrangement, in duplicate, with the Director together with
such other documents as may be required in order to effect the
Arrangement.
|
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
Representations
and Warranties of IAMGOLD
|
3.1
|
Each
of the representations and warranties of IAMGOLD set forth in this section
3.1 is qualified and made subject to the disclosures made in the IAMGOLD
Disclosure Letter. IAMGOLD hereby represents and warrants to
Orezone and New Orezone as of the date hereof and acknowledges that
Orezone and New Orezone are relying upon these representations and
warranties in connection with the Arrangement and the other transactions
contemplated herein and in entering into this
Agreement:
|
|
|
(a)
|
Organization. IAMGOLD
has been incorporated, is validly subsisting and has full corporate and
legal power and authority to own its property and assets and to conduct
its business as currently owned and conducted. IAMGOLD is
registered, licensed
or otherwise qualified as an extra-provincial corporation or a foreign
corporation in each jurisdiction where the nature of the business or the
location or character of the property and assets owned or leased by it
requires it to be so registered, licensed or otherwise qualified, other
than those jurisdictions where the failure to be so registered, licensed
or otherwise qualified would not have a Material Adverse Effect on
IAMGOLD.
|
|
|
(b)
|
Authority. IAMGOLD
has all necessary power, authority and capacity to enter into this
Agreement and all other agreements and instruments to be executed by
IAMGOLD as contemplated by this Agreement, and to perform its obligations
hereunder and under such other agreements and instruments. The
execution and delivery of this Agreement by IAMGOLD and the completion by
IAMGOLD of the transactions contemplated by this Agreement have been
authorized by the IAMGOLD Board and no other corporate proceedings on the
part of IAMGOLD are necessary to authorize this Agreement or to complete
the transactions contemplated hereby. This Agreement has been
executed and delivered by IAMGOLD and constitutes a legal, valid and
binding obligation of IAMGOLD, enforceable against it in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium and other Applicable Laws relating to or affecting
creditors’ rights generally, and to general principles of
equity.
|
19
..
|
|
(c)
|
Capitalization. IAMGOLD
is authorized to issue an unlimited number of IAMGOLD Shares, an unlimited
number of first preference shares, issuable in series and an unlimited
number of second preference shares, issuable in series. As of
December 10, 2008, there were (i) 295,659,845 IAMGOLD Shares outstanding;
(ii) an aggregate of 6,645,429 IAMGOLD Shares reserved for issue pursuant
to outstanding options, warrants, convertible securities and other rights
to acquire IAMGOLD Shares; and (iii) nil first preference shares or second
preference shares. All outstanding IAMGOLD Shares have been
authorized and are validly issued and outstanding as fully paid and
non-assessable shares, free of pre-emptive
rights.
|
|
|
(d)
|
Listing. The
outstanding IAMGOLD Shares are listed on the TSX, the NYSE and the
BSE.
|
|
|
(e)
|
Disclosure
Filings. IAMGOLD (i) is a reporting issuer in all of the
provinces and territories of Canada and the IAMGOLD Shares are registered
under Xxxxxxx 00 xx xxx 0000 Xxx, (xx) is not subject to any cease trade
order under Applicable Securities Laws and (iii) is current with all
material filings required to be made under Applicable Securities Laws and
has filed or furnished all reports or other documents required to be filed
or furnished under the 1933 Act and the 1934
Act.
|
|
|
(f)
|
IAMGOLD Disclosure
Documents. The information and statements contained in
the IAMGOLD Disclosure Documents at the respective dates of such
information and statements (i) did not contain a Misrepresentation and did
not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made, in light of
the circumstances under which they were made, not misleading, and (ii)
complied, in all material respects, with Applicable Securities Laws,
except where such non-compliance has not had, and would not reasonably be
expected to have, a Material Adverse Effect on IAMGOLD. IAMGOLD
has not filed any confidential material change or other report or other
document
with any Securities Authority or stock exchange which at the date hereof
remains confidential.
|
|
|
(g)
|
Absence of Certain Changes or
Events. Other than as disclosed in the IAMGOLD
Disclosure Documents, since December 31, 2007, through to the date hereof,
there has not occurred a Material Adverse Change with respect to
IAMGOLD.
|
|
|
(h)
|
Financial
Statements. The financial statements of IAMGOLD forming
part of the IAMGOLD Disclosure Documents have been prepared in accordance
with Canadian GAAP consistently applied and fairly present in all material
respects the consolidated financial condition of IAMGOLD at the respective
dates indicated therein and the results of operations of IAMGOLD for the
periods covered therein on a consolidated
basis.
|
20
..
|
|
(i)
|
No Conflict or
Violation. Subject to receipt of the approvals set out
in subsection 3.1(m) hereof, the execution and delivery of this Agreement
and the completion of the Arrangement do not, and will not, result in a
violation, contravention or breach of, require any consent to be obtained
under or give rise to any termination rights under any provision of
:
|
|
|
(i)
|
the
articles or by-laws of IAMGOLD;
|
|
|
(ii)
|
any
Applicable Law; or
|
|
|
(iii)
|
any
contract, agreement, license or permit to which IAMGOLD is bound or is
subject to or of which IAMGOLD is the
beneficiary;
|
which
would, individually or in the aggregate, have a Material Adverse Effect on
IAMGOLD.
|
|
(j)
|
Compliance with
Laws. IAMGOLD has complied with all Applicable Laws,
orders, judgments and decrees other than any non-compliance which would,
individually or in the aggregate, not have a Material Adverse Effect on
IAMGOLD.
|
|
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(k)
|
Litigation. There
are no actions, suits, proceedings or investigations commenced or
threatened, or to the knowledge of IAMGOLD, contemplated, against or
affecting IAMGOLD which involve the possibility of any judgment or
liability which could be reasonably expected to have a Material Adverse
Effect on IAMGOLD.
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|
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(l)
|
No
Insolvency. Neither IAMGOLD nor any of the IAMGOLD
Subsidiaries is insolvent within the meaning of applicable bankruptcy,
insolvency or fraudulent conveyance laws. No act or proceeding
has been taken by or against IAMGOLD or any of the IAMGOLD Subsidiaries in
connection with the dissolution, liquidation, winding up, bankruptcy or
reorganization of IAMGOLD or any of the IAMGOLD Subsidiaries or the
appointment of a trustee, receiver, manager or other administrator of
IAMGOLD or any of the IAMGOLD Subsidiaries or any of their respective
properties or assets.
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|
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(m)
|
Consents. No
consent, approval, order or authorization of, or declaration or filing
with, any Governmental Entity is required to be obtained by IAMGOLD in
connection
with the execution and delivery of this Agreement or the consummation by
IAMGOLD of the Arrangement other
than:
|
|
|
(i)
|
any
approvals required by the Interim
Order;
|
|
|
(ii)
|
the
approval of the TSX, the NYSE and the BSE to list the IAMGOLD Shares
issuable to Orezone Shareholders pursuant to the Plan of Arrangement or
issuable upon the exercise or conversion of Orezone Convertible
Securities, Orezone Options or the Convertible Debenture (or other IAMGOLD
securities issued in exchange therefor) and any filings or approvals
required under the CBCA or under Applicable Securities
Laws;
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|
|
(iii)
|
any
approvals required by the Final
Order;
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21
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|
(iv)
|
compliance
with, and any approval required by, the Competition Act;
and
|
|
|
(v)
|
any
other consents, approvals, orders, authorizations, declarations or filings
of or with a Governmental Entity which, if not obtained, individually or
in the aggregate, would not, and either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect on
IAMGOLD or a material impact on the ability of IAMGOLD to complete the
Arrangement and other transactions contemplated
herein.
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|
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(n)
|
IAMGOLD
Shares. The IAMGOLD Shares to be issued to Orezone
Shareholders pursuant to the Plan of Arrangement will, upon issue, be
issued as fully paid and non-assessable shares of
IAMGOLD.
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|
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(o)
|
Orezone
Shares. IAMGOLD owns, directly or indirectly, or
exercises control or direction over nil Orezone
Shares.
|
|
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(p)
|
Residency. IAMGOLD
is not a non-resident of Canada for the purposes of the Tax
Act.
|
|
|
(q)
|
Place of Principal
Offices. The principal offices of IAMGOLD are not
located within the United States.
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|
|
(r)
|
Foreign Private
Issuer. As of the date hereof, IAMGOLD is a “foreign
private issuer” within the meaning of Rule 405 under the 1933
Act.
|
|
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(s)
|
Investment
Company. To the knowledge of IAMGOLD, IAMGOLD is not an
“investment company”, as defined under the 1940
Act.
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|
|
(t)
|
Shareholder
Approval. No vote or approval of the holders of IAMGOLD
Shares or the holder of any other securities of IAMGOLD is necessary to
approve this Agreement, the Arrangement or the other transactions
contemplated herein.
|
Representations
and Warranties of Orezone and New Orezone
3.2 Each of the representations and warranties of
Orezone and New Orezone set forth in this section 3.2 is qualified and made
subject to the disclosures made in the Orezone Disclosure
Letter. Orezone and New Orezone hereby jointly and severally
represent and warrant to IAMGOLD as follows as of the date hereof and
acknowledge that IAMGOLD is relying upon such representations and warranties in
connection with the Arrangement and the other transactions contemplated herein
and in entering into this Agreement:
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|
(a)
|
Organization of
Orezone. Each of Orezone, New Orezone and the Orezone
Subsidiaries has been incorporated, is subsisting and has full corporate
and legal power and authority to own its property and assets and to
conduct its business as currently owned and conducted. Each of
Orezone, New Orezone and the Orezone Subsidiaries is registered, licensed
or otherwise qualified as an extra-provincial corporation or a foreign
corporation in each jurisdiction where the nature of the business or the
location or character of the property and assets owned or leased by it
requires it to be so registered, licensed or otherwise qualified, other
than those jurisdictions where the failure to be so registered, licensed
or otherwise qualified would not have a Material Adverse Effect on Orezone
or on the Essakane Property. All of the outstanding shares of
New Orezone and the Orezone Subsidiaries, other than Essakane S.A. are
owned, directly or indirectly, by Orezone. All of the
outstanding shares of Orezone Inc. are owned by Orezone. All of
the outstanding shares of Essakane (BVI) Limited are owned by Orezone
Inc. All of the outstanding shares of Orezone Essakane (BVI)
Limited and Essakane s.a.r.l. are owned by Essakane (BVI)
Limited. All of the outstanding shares of Essakane S.A. are
owned as to 90% by Orezone Essakane (BVI) Limited and as to 10% by the
Government of Burkina Faso. All of the outstanding shares of
Gold Fields Burkina Faso s.a.r.l. are owned by Orezone Essakane (BVI)
Limited. Except pursuant to restrictions on transfer contained
in the articles or by-laws (or their equivalent) of New Orezone or the
Orezone Subsidiaries, the outstanding shares of New Orezone and the
Orezone Subsidiaries are owned by Orezone free and clear of any
Encumbrance and all such outstanding shares are outstanding as fully paid
and non-assessable shares. Except pursuant to this Agreement
and the transactions contemplated hereby, there are no outstanding
options, rights, entitlements, understandings or commitments (contingent
or otherwise) regarding the right to acquire any issued or unissued
securities of, or interest in, New Orezone or the Orezone Subsidiaries
from Orezone.
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22
..
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|
(b)
|
Authority. Each
of Orezone and New Orezone has all necessary power, authority and capacity
to enter into this Agreement and all other agreements and instruments to
be executed by Orezone and New Orezone as contemplated by this Agreement,
and to perform its respective obligations hereunder and under such other
agreements and instruments. The execution and delivery of this
Agreement by each of Orezone and New Orezone and the completion by each of
Orezone and New Orezone of the transactions contemplated by this Agreement
have been authorized by the directors of each of Orezone and New Orezone
and no other corporate proceedings on the part of Orezone or New Orezone
are necessary to authorize this Agreement or to complete the transactions
contemplated hereby. This Agreement has been executed and
delivered by each of Orezone and New Orezone and constitutes a legal,
valid and binding obligation of each of Orezone and New Orezone,
enforceable against each in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
and other Applicable Laws relating to or affecting creditors’ rights
generally, and to general principles of
equity.
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|
|
(c)
|
Capitalization. Orezone
is authorized to issue an unlimited number of Orezone
Shares. As of the date of this Agreement, there were (i)
357,840,938 Orezone Shares outstanding, (ii) Orezone Options to acquire an
aggregate of 6,973,200 Orezone Shares outstanding, and (iii) 37,327,252
Orezone Shares reserved for issue under the outstanding Orezone
Convertible Securities and Convertible Debenture. All
outstanding Orezone Shares have been authorized and are issued and
outstanding as fully paid and non-assessable shares, free of pre-emptive
rights. Orezone does not have a shareholder rights
plan. New Orezone is authorized to issue an unlimited number of
New Orezone Shares. As of the date of this Agreement (i) there
was one New Orezone Share outstanding, and (ii) there were no New Orezone
Shares reserved for issue pursuant to any convertible securities of New
Orezone or any other rights to acquire New Orezone Shares. All
outstanding New Orezone Shares have been authorized and are issued and
outstanding as fully paid and non-assessable shares, free of pre-emptive
rights.
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23
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|
|
(d)
|
Options to Purchase
Shares. Except as disclosed in the Orezone Disclosure
Letter or as contemplated in this Agreement, there are no options,
warrants, conversion privileges or other rights, agreements, arrangements
or commitments (pre-emptive, contingent or otherwise) obligating Orezone
or the Orezone Subsidiaries to issue or sell any shares of Orezone or the
Orezone Subsidiaries or any securities or obligations of any kind
convertible into or exchangeable or exercisable for any shares of Orezone
or the Orezone Subsidiaries. As of the date hereof, there are
no outstanding bonds, debentures or other evidences of indebtedness of
Orezone or the Orezone Subsidiaries having the right to vote with the
Orezone Shareholders on any matter. There are no outstanding
contractual obligations of Orezone or the Orezone Subsidiaries to
repurchase, redeem or otherwise acquire any outstanding Orezone Shares or
with respect to the voting or disposition of any outstanding Orezone
Shares. On the Effective
Date:
|
|
|
(i)
|
Each
Orezone 1997 Option outstanding immediately prior to the Effective Time,
whether vested or not, will be exchanged for a fully-vested option granted
by IAMGOLD (each an “IAMGOLD Replacement
Option” and collectively the “IAMGOLD Replacement
Options”) to acquire the number of IAMGOLD Shares equal to the
product of (A) the number of Orezone Shares subject to the Orezone 1997
Option immediately before the Effective Time and (B) the Exchange Ratio,
and the exercise price per IAMGOLD Share subject to any IAMGOLD
Replacement Option shall be equal to the quotient of (A) the exercise
price per Orezone Share subject to such Orezone 1997 Option immediately
before the Effective Time divided by (B) the Exchange
Ratio. Except as set out above, the terms of each IAMGOLD
Replacement Option will be the same as the Orezone 1997 Option exchanged
therefor.
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|
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(ii)
|
Each
Orezone 2008 Option outstanding immediately prior to the Effective Time,
whether vested or not, will remain outstanding in accordance with its
terms which provide that such Orezone 2008 Option may be exercised by the
holder thereof at any time up to and including (but not after) the date
that is 30 days after the Effective Time and will entitle the holder
thereof to receive, upon exercise in accordance
with the terms thereof, in lieu of the number of Orezone Shares otherwise
issuable upon exercise thereof, the number of IAMGOLD Shares and New
Orezone Shares which the holder would have been entitled to receive as a
result of the Arrangement and the other transactions contemplated herein
if, immediately prior to the Effective Time, such holder had been the
registered holder of the number of Orezone Shares to which such holder was
entitled upon such exercise.
|
|
|
(iii)
|
The
Orezone Warrants, if outstanding immediately prior to the Effective Time,
will remain outstanding in accordance with their terms and will entitle
the holder thereof to receive, upon exercise in accordance with the terms
thereof, in lieu of the number of Orezone Shares otherwise issuable upon
exercise thereof, the number of IAMGOLD Shares and New Orezone Shares
which the holder would have been entitled to receive as a result of the
Arrangement and the other transactions contemplated herein if, immediately
prior to the Effective Time, such holder had been the registered holder of
the number of Orezone Shares to which such holder was entitled upon such
exercise.
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24
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(iv)
|
The
Convertible Debenture, if outstanding immediately prior to the Effective
Time, will be terminated in accordance with the terms of the Convertible
Debenture Waiver Agreement.
|
|
|
(e)
|
Listing. The
outstanding Orezone Shares are listed on the TSX and
Alternext.
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|
|
(f)
|
Disclosure
Filings. Orezone (i) is a reporting issuer in all of the
provinces and territories of Canada and the Orezone Shares are registered
under Xxxxxxx 00 xx xxx 0000 Xxx, (xx) is not subject to any cease trade
order under Applicable Securities Laws and (iii) is current with all
material filings required to be made under Applicable Securities Laws and
has filed or furnished all reports or other documents required to be filed
or furnished under the 1933 Act and the 1934
Act.
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|
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(g)
|
Orezone Disclosure
Documents. The information and statements contained in
the Orezone Disclosure Documents at the respective dates of such
information and statements (i) did not contain a Misrepresentation and did
not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made, in light of
the circumstances under which they were made, not misleading, and (ii)
complied, in all material respects, with Applicable Securities Laws,
except where such non-compliance has not had, and would not reasonably be
expected to have, a Material Adverse Effect on Orezone. Orezone
has not filed any confidential material change, confidential treatment
requests or other report or other document with any Securities Authority
or stock exchange which at the date hereof remains
confidential. None of the Orezone Subsidiaries is required to
file any reports or other documents with any of the Securities
Authorities, the TSX or the
Alternext.
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|
|
(h)
|
Absence of Certain Changes or
Events. Since December 31,
2007:
|
|
|
(i)
|
each
of Orezone, New Orezone and the Orezone Subsidiaries has conducted its
business only in the ordinary and regular course of business consistent
with past practice;
|
|
|
(ii)
|
Orezone,
on a consolidated basis, has not incurred or suffered a Material Adverse
Change;
|
|
|
(iii)
|
there
has not been any acquisition or sale by Orezone of any interest in any of
the Orezone Subsidiaries or any material property or
assets;
|
|
|
(iv)
|
there
has not been any incurrence, assumption or guarantee by Orezone, New
Orezone or the Orezone Subsidiaries of any debt for borrowed money, any
creation or assumption by Orezone, New Orezone or any of the Orezone
Subsidiaries of any Encumbrance, any making by Orezone, New Orezone or any
of the Orezone Subsidiaries of any loan, advance or capital contribution
to or investment in any other
Person;
|
25
..
|
|
(v)
|
Orezone
has not effected any material change in its accounting methods, principles
or practices;
|
|
|
(vi)
|
Orezone
has not declared or paid any dividends or made any other distributions on
any of the Orezone Shares;
|
|
|
(vii)
|
Orezone
has not effected or passed any resolution to approve a split,
consolidation or reclassification of any of the outstanding Orezone
Shares;
|
|
|
(viii)
|
other
than in the ordinary and regular course of business consistent with past
practice, there has not been any material increase in or modification of
the compensation payable to or to become payable by Orezone, New Orezone
or any of the Orezone Subsidiaries to any of their respective directors,
officers, employees or consultants or any grant to any such director,
officer, employee or consultant of any increase in severance or
termination pay or any increase or modification of any bonus, pension,
insurance or benefit arrangement (including, without limitation, the
granting of Orezone Options pursuant to the Orezone Stock Option Plans)
to, for or with any of such directors, officers, employees or consultants;
and
|
|
|
(ix)
|
none
of Orezone, New Orezone or the Orezone Subsidiaries has adopted any, or
materially amended any, collective bargaining agreement, bonus, pension,
profit sharing, stock purchase, stock option or other benefit
plan.
|
|
|
(i)
|
Financial
Statements. The financial statements of Orezone forming
part of the Orezone Disclosure Documents have been prepared in accordance
with Canadian GAAP consistently applied and fairly present in all material
respects the consolidated financial condition of Orezone at the respective
dates indicated therein and the results of operations of Orezone for the
periods covered therein on a consolidated basis. Orezone does
not have any liability or obligation (including, without
limitation, liabilities or obligations to fund any operations or work or
exploration program, to give any guarantees or for Taxes), whether
accrued, absolute, contingent or otherwise, not reflected in the unaudited
consolidated financial statements of Orezone for the period ended
September 30, 2008, except liabilities and obligations incurred in the
ordinary and regular course of business or which liabilities or
obligations do not in the aggregate exceed $500,000. There are
reasonable grounds for believing that (i) Orezone is able to pay its
liabilities as they become due and (ii) the realizable value of the
property and assets of Orezone are not less than the aggregate of the
liabilities thereof and the stated capital of all classes of shares
thereof.
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|
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(j)
|
No Conflict or
Violation. Subject to receipt of the approvals set out
in subsection 3.2(z) hereof, the execution and delivery of this Agreement
and the completion of the Arrangement and the other transactions
contemplated herein do not and will
not:
|
|
|
(i)
|
result
in a violation, contravention or breach of, require any consent to be
obtained under or give rise to any termination rights under any provision
of:
|
26
..
|
|
A.
|
the
articles or by-laws of Orezone, New Orezone or any of the Orezone
Subsidiaries,
|
|
|
B.
|
any
Applicable Law, or
|
|
|
C.
|
any
contract, agreement, license or permit to which Orezone, New Orezone or
any of the Orezone Subsidiaries is bound or is subject to or of which
Orezone, New Orezone or any of the Orezone Subsidiaries is the
beneficiary, including, without limitation, any Essakane
Contract;
|
that
would, individually or in the aggregate, have a Material Adverse Effect on
Orezone on a consolidated basis,
|
|
(ii)
|
give
rise to any right of termination or acceleration of indebtedness, or cause
any indebtedness owing by Orezone, New Orezone or any of the Orezone
Subsidiaries to come due before its stated maturity or cause any available
credit to cease to be available which would, individually or in the
aggregate, have a Material Adverse Effect on
Orezone;
|
|
|
(iii)
|
result
in the imposition of any Encumbrance upon any of the property or assets of
Orezone, New Orezone or any of the Orezone Subsidiaries or restrict,
hinder, impair or limit the ability of Orezone, New Orezone or any of the
Orezone Subsidiaries to conduct the business of Orezone, New Orezone or
the Orezone Subsidiaries as and where it is now being conducted which
would, individually or in the aggregate, have a Material Adverse Effect on
Orezone; or
|
|
|
(iv)
|
result
in any material, individually or in the aggregate, payment (including
severance, unemployment compensation, “golden parachute”, bonus or
otherwise) becoming due to any director, officer or employee of Orezone,
New Orezone or any of the Orezone Subsidiaries or increase any benefits
otherwise payable under any pension or benefits plan of Orezone, New
Orezone or any of the Orezone Subsidiaries or result in the acceleration
of the time of payment or vesting of any such
benefits.
|
|
|
(k)
|
No Contracts or
Commitments. There are no agreements, covenants,
undertakings or other commitments of or on behalf of Orezone, New Orezone
or any of the Orezone Subsidiaries under which the completion of the
Arrangement or other transactions contemplated herein
would:
|
|
|
(i)
|
have
the effect of imposing restrictions or obligations on Orezone, New Orezone
of any of the Orezone Subsidiaries;
|
|
|
(ii)
|
give
a third party a right to terminate any permit with respect to the Essakane
Property or a right to terminate any Essakane Contract to which Orezone or
any of the Orezone Subsidiaries is a party or to which any agent or
consultant acting on behalf of any of the foregoing, is a party;
or
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27
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|
|
(iii)
|
impose
restrictions on the ability of Orezone or any of the Orezone Subsidiaries
to pay any dividends or make other distributions to its
shareholders.
|
|
|
(l)
|
No
Brokers. Neither Orezone nor New Orezone has agreed to
pay any brokerage fees, finder’s fees, financial advisory fees, agent’s
commissions or other similar forms of compensation in connection with this
Agreement or the Arrangement or the other transactions contemplated
herein.
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|
|
(m)
|
Compliance with
Laws. Each of Orezone, New Orezone and the Orezone
Subsidiaries has complied with all Applicable Laws, orders, judgments and
decrees other than any non-compliance which would, individually or in the
aggregate, not have a Material Adverse Effect on
Orezone. Without limiting the generality of the foregoing, all
outstanding securities of Orezone, New Orezone and each of the Orezone
Subsidiaries (including the Orezone Shares, the Orezone Convertible
Securities, the Orezone Options, the Convertible Debenture and the New
Orezone Shares) have been issued in compliance, in all material respects,
with all Applicable Securities Laws and all securities of Orezone or New
Orezone to be issued upon exercise of any Orezone Convertible Securities,
Orezone Options or the Convertible Debenture will be issued in compliance
with all Applicable Securities
Laws.
|
|
|
(n)
|
Litigation. There
are no claims, actions, suits, proceedings or investigations commenced or,
to the knowledge of Orezone, threatened or contemplated, against or
affecting Orezone, New Orezone or any of the Orezone Subsidiaries or
affecting any of their respective properties or assets before any
Governmental Entity or before or by any Person or before any arbitrator of
any kind which, individually or in the aggregate, would prevent or hinder
the consummation of the Arrangement or other transactions contemplated
herein or which, individually or in the aggregate, involve the possibility
of any judgement or liability which could be reasonably expected to have a
Material Adverse Effect on Orezone. To the knowledge of
Orezone, there is no
pending or threatened claim against Orezone or any of the Orezone
Subsidiaries which affects the Essakane
Property.
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|
|
(o)
|
No
Insolvency. No act or proceeding has been taken by or
against Orezone, New Orezone or any of the Orezone Subsidiaries in
connection with the dissolution, liquidation, winding up, bankruptcy or
reorganization of Orezone, New Orezone or any of the Orezone Subsidiaries
nor, to the knowledge of Orezone, is any threatened, or the appointment of
a trustee, receiver, manager or other administrator of Orezone, New
Orezone or any of the Orezone Subsidiaries or any of their respective
properties or assets. None of Orezone, New Orezone or any of
the Orezone Subsidiaries has sought protection under the Bankruptcy and Insolvency
Act (Canada) or the Company Creditors Arrangement
Act (Canada). None of Orezone, New Orezone nor any of
the Orezone Subsidiaries nor any of their respective properties or assets
is subject to any outstanding judgment, order, writ, injunction or decree
that involves or may involve, or restricts or may restrict, the right or
ability of Orezone, New Orezone or any of the Orezone Subsidiaries to
conduct its business in all material respects as it has been carried on
prior to the date hereof, or that would or could materially impede the
completion of the Arrangement or other transactions contemplated by this
Agreement, except to the extent any such matter would not have a Material
Adverse Effect on Orezone.
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28
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(p)
|
Books and
Records. The corporate records and minute books of each
of Orezone, New Orezone and the Orezone Subsidiaries have been maintained
in accordance with all Applicable Laws and are complete and accurate in
all material respects, except where such incompleteness or inaccuracy
would not have a Material Adverse Effect on Orezone or the Orezone
Subsidiaries. Financial books and records and accounts of each
of Orezone, New Orezone and the Orezone Subsidiaries in all material
respects (i) have been maintained in accordance with good business
practices on a basis consistent with prior years and past practice, (ii)
are stated in reasonable detail and accurately and fairly reflect the
transactions and acquisitions and dispositions of property or assets of
each of Orezone, New Orezone and the Orezone Subsidiaries, and (iii)
accurately and fairly reflect the basis for the consolidated financial
statements of Orezone. All of the directors and officers of
Orezone are listed in schedule E attached
hereto.
|
|
|
(q)
|
Essakane
Property. With respect to the Essakane
Property:
|
|
|
(i)
|
the
Essakane Property is accurately described in schedule D attached hereto,
there are no mineral claims or other rights comprising the Essakane
Property or any portion thereof which are not set out in schedule D
attached hereto and each of the permits set out in schedule D hereto are
in full force and effect;
|
|
|
(ii)
|
no
Person has any agreement, option, right of first refusal or right, title
or interest or right capable of becoming an agreement, option, right of
first refusal or right, title or interest, in or to the Essakane
Property;
|
|
|
(iii)
|
either
Orezone or Essakane S.A. or Essakane s.a.r.l. has all necessary corporate
power to own the Essakane Property and is in compliance with all
Applicable Laws and licenses, registrations, permits, consents and
qualifications to which the Essakane Property is
subject;
|
|
|
(iv)
|
Essakane
S.A. or Essakane s.a.r.l. has a 100% legal and beneficial good, valid and
exclusive ownership right, title and interest in and to, and actual and
exclusive possession of, the permits relating to the Essakane Property and
the Essakane Contracts, free and clear of all Encumbrances, other than the
interest of the Government of Burkina Faso as set out in subsection 3.2(a)
hereof;
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29
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|
|
(v)
|
neither
the Essakane Property nor any minerals or product derived from the
Essakane Property are subject to or bound by any royalty, royalty interest
or similar payment or interest, whether registered or unregistered, and
neither Orezone nor any of the Orezone Subsidiaries has granted any
royalty, royalty interest or similar payment or interest in or affecting
the Essakane;
|
|
|
(vi)
|
neither
Orezone nor any of the Orezone Subsidiaries has received notice of any
breach of any Applicable Law in respect of its conduct on or under the
Essakane Property which could have a Material Adverse Effect on the
Essakane Property; and
|
|
|
(vii)
|
either
Orezone or Essakane S.A. or Essakane s.a.r.l. owns, possesses or has
obtained, and is in compliance with, all necessary licenses, permits,
certificates, mining conventions, consents, orders, grants and other
qualifications and authorizations necessary to conduct its business on the
Essakane Property, including, but not limited to, for the exploration,
development and construction of the Essakane Property, except where such
non-compliance, either individually or in the aggregate, does not, and
will not, have a Material Adverse Effect on
Orezone.
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|
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(r)
|
Records and
Data. Orezone has delivered to IAMGOLD, or provided
IAMGOLD with access to, all Records and Data and material information in
its possession or the possession of the Orezone Subsidiaries or under the
control of Orezone or any of the Orezone Subsidiaries relating to the
Essakane Property and its mineral potential and relating to access rights
to the Essakane Property.
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|
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(s)
|
Essakane
Contracts. The Essakane Contracts are valid and
subsisting, in full force and effect unamended, no material default exists
in respect thereof on the part of Orezone or any of the Orezone
Subsidiaries or, to the knowledge of Orezone, on the part of any of the
other parties thereto. Neither Orezone nor, to the best
knowledge of Orezone, after due inquiry, any agent or consultant acting on
behalf of Orezone or an Orezone Subsidiary is aware of any intention on
the part of any of the other parties thereto to terminate or materially
alter any of the Essakane Contracts. There are no material
commitments, contracts, instruments, leases and other agreements, oral or
written, entered into by Orezone or any of the Orezone Subsidiaries or by
which it or any of them are bound, relating directly or indirectly to the
Essakane Property, other than the Essakane
Contracts.
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|
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(t)
|
Mineral Reserves and
Resources. The most recent estimated proven and probable
mineral reserves and the estimated, measured, indicated and inferred
mineral resources of Orezone disclosed in the Orezone Disclosure Documents
have been prepared and disclosed in all material respects in accordance
with all Applicable Laws. There has been no material reduction
in the aggregate amount of estimated mineral reserves and estimated
mineral resources of Orezone and the Orezone Subsidiaries from the amounts
disclosed publicly by Orezone.
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(u)
|
Operational
Matters. Except as would not have a Material Adverse
Effect on Orezone:
|
|
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(i)
|
all
rentals, payments and obligations (including maintenance for unpatented
mining claims), royalties, overriding royalty interests, production
payments, net profits, interest burdens and other payments due or payable
on or prior to the date hereof under or with respect to the direct or
indirect assets of Orezone and the Orezone Subsidiaries have been properly
and timely paid;
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|
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(ii)
|
the
ore bodies and minerals located in the Essakane Property are under valid,
subsisting and enforceable title documents or other recognized and
enforceable agreements or instruments, sufficient to permit Orezone,
Essakane S.A. or Essakane s.a.r.l. to explore the minerals relating
thereto, all such property, leases or claims and all property, leases or
claims in which Orezone or any of the Orezone Subsidiaries has any
interest or right have been validly located and recorded in accordance
with all Applicable Laws and are valid and subsisting, Orezone, Essakane
S.A. or Essakane s.a.r.l. has all necessary surface rights, access rights
and other necessary rights and interests relating to the Essakane Property
granting Orezone, Essakane S.A. or Essakane s.a.r.l. the right and ability
to explore for minerals, ore and metals for development purposes, with
only such exceptions as do not materially interfere with the use made by
Orezone, Essakane S.A. or Essakane s.a.r.l. of the rights or interests so
held and each of the proprietary interests or rights and each of the
documents, agreements and instruments and obligations relating thereto
referred to above is currently in good standing in the name of Orezone,
Essakane S.A. or Essakane s.a.r.l.;
and
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30
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(iii)
|
all
exploration and development activities have been undertaken in accordance
with good exploration and development practices and in compliance with all
Applicable Laws.
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(v)
|
Environmental. Except
for any matters that, individually or in the aggregate, would not have a
Material Adverse Effect on Orezone:
|
|
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(i)
|
all
facilities and operations of Orezone and the Orezone Subsidiaries have
been conducted, and are now, in compliance with all Environmental
Laws;
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(ii)
|
the
Essakane Property has not been used to generate, manufacture, refine,
treat, recycle, transport, store, handle, dispose, transfer, produce
or
process Hazardous Substances, except in compliance in all material
respects with all Environmental Laws, neither Orezone nor any of the
Orezone Subsidiaries has caused or permitted the release of any Hazardous
Substances at, in, on, under or from the Essakane Property, except in
compliance with all Environmental Laws; all Hazardous Substances handled,
recycled, disposed of, treated or stored on or off site of the Essakane
Property have been handled, recycled, disposed of, treated and stored in
material compliance with all Environmental Laws and to the knowledge
of Orezone, there are no Hazardous Substances at, in, on, under or
migrating from the Essakane Property except in material compliance with
all Environmental Laws;
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(iii)
|
either
Orezone or one of Essakane S.A. or Essakane s.a.r.l. is in possession of
all Environmental Approvals (all of which are being complied with in all
material respects) required to own, lease, operate, develop and exploit
the Essakane Property and to conduct its business as it is now being
conducted or contemplated to be
conducted;
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(iv)
|
no
environmental, reclamation or abandonment obligation or work orders or
other liabilities presently exist with respect to any portion of the
Essakane Property and, to the knowledge of Orezone and the Orezone
Subsidiaries, there is no basis for any such obligations or liabilities to
arise in the future as a result of any activity on the Essakane
Property;
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31
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(v)
|
to
the knowledge of Orezone and the Orezone Subsidiaries, there are no actual
changes in the status, terms or conditions of any Environmental Approvals
now held by Orezone or any of the Orezone Subsidiaries or any renewal,
modification, revocation, reassurance, alteration, transfer or amendment
of any such Environmental Approval, or any review by, or approval of, any
Governmental Entity of such Environmental Approvals that are required in
connection with the execution or delivery of this Agreement, the
completion of the Arrangement or the other transactions contemplated
herein or the continuation of the business of Orezone and the Orezone
Subsidiaries following the Effective Date;
and
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(vi)
|
except
as disclosed by Orezone in the Orezone Disclosure Letter, neither Orezone
nor any of the Orezone Subsidiaries has received from any Person or
Governmental Entity any notice, formal or informal, of any proceeding,
action or other claim, liability or potential liability arising under any
Environmental Law that is pending.
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(w)
|
Tax
Matters.
|
|
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(i)
|
Except
as disclosed in the Orezone Disclosure Letter, each of Orezone and the
Orezone Subsidiaries has filed or caused to be filed, and will continue to
file and cause to be filed, in a timely manner all Tax Returns required to
be filed by it (all of which Tax Returns were correct and complete in all
material respects and no material fact has been omitted therefrom) and
have paid, collected, withheld or remitted, or caused to be paid,
collected, withheld or remitted, all Taxes that are due and payable, collectible
and remittable. No extension of time in which to file any Tax
Returns is in effect. Orezone has provided adequate accruals in
accordance with Canadian GAAP in all published consolidated financial
statements for any Taxes for the period covered by such financial
statements which have not been paid, whether or not shown as being due on
any Tax Returns. Since such publication date, no material
liability for Taxes not reflected in such consolidated financial
statements has been incurred or accrued by Orezone or any of the Orezone
Subsidiaries other than in the ordinary and regular course of
business. No lien for Taxes has been filed or exists other than
for Taxes not yet due and
payable.
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|
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(ii)
|
All
Taxes, local improvements, utilities and any and all other payments to or
assessments of any Governmental Entity having jurisdiction in respect of
the Essakane Property have been paid or made by Orezone or an Orezone
Subsidiary in respect of the Essakane Property. Except as
disclosed in the Orezone Disclosure Letter, there are no reassessments of
Taxes in respect of Orezone or any of the Orezone Subsidiaries that are
outstanding and there are no outstanding issues which have been raised and
communicated to Orezone or any of the Orezone Subsidiaries by any
Governmental Entity for any taxation year in respect of which a Tax Return
of Orezone or any of the Orezone Subsidiaries has been
audited. No Governmental Entity has challenged, disputed or
questioned Orezone or any of the Orezone Subsidiaries in respect of any
Taxes or Tax Returns. Neither Orezone nor any of the Orezone
Subsidiaries is negotiating any draft assessment or reassessment with any
Governmental Entity. Orezone is not aware of any contingent
liabilities for Taxes or any grounds for an assessment or reassessment of
Orezone or any of the Orezone Subsidiaries, including, without limitation,
unreported benefits conferred on any shareholder, aggressive treatment of
income, expenses, credits or other claims for deduction under any return
or notice other than as disclosed in the consolidated financial statements
of Orezone. Neither Orezone nor any of the Orezone Subsidiaries
has received any indication from any Governmental Entity that an
assessment or reassessment of Orezone or any of the Orezone Subsidiaries
is proposed in respect of any Taxes, regardless of its
merits. Neither Orezone nor any of the Orezone Subsidiaries has
executed or filed with any Governmental Entity any agreement or waiver
extending the period for the assessment, reassessment or collection of any
Taxes.
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32
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(iii)
|
Orezone
and each of the Orezone Subsidiaries has withheld from each payment made
to any of its present or former employees, officers and directors, and to
all other Persons, all amounts required by Applicable Law to be withheld,
and furthermore, has remitted such withheld amounts within the prescribed
periods to the appropriate Governmental Entity. Orezone and
each of the Orezone Subsidiaries has remitted all Canada Pension Plan
contributions, provincial pension plan contributions, employment insurance
premiums, employer health taxes and other Taxes payable by it in respect
of its employees, agents and consultants, as applicable, and has remitted
such amounts to the proper Governmental Entity within the time required
under Applicable Laws. Orezone
and each of the Orezone Subsidiaries has charged, collected and remitted
on a timely basis all Taxes required under Applicable Laws on any sale,
supply or delivery whatsoever, made by
them.
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|
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(iv)
|
Orezone
and each of the Orezone Subsidiaries will not at any time be deemed to
have a capital gain pursuant to subsection 80.03(2) of the Tax Act or any
analogous provincial legislative provision as a result of any transaction
or event taking place in any taxation year ending on or before the
Effective Date. There are no circumstances existing which could
result in the application of section 78 or 160 of the Tax Act or any
equivalent provincial provision to Orezone or any of the Orezone
Subsidiaries.
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(x)
|
Pension and Employee
Benefits. Orezone and the Orezone Subsidiaries have
complied, in all material respects, with all of the terms of the pension
and other employee compensation and benefit obligations of Orezone and the
Orezone Subsidiaries including, without limitation, the provisions of any
collective agreement, funding and investment contract or obligation
applicable thereto, arising under or relating to each of the pension or
retirement income plans or other employee compensation or benefit plans,
agreements, policies, programs, arrangements or practices, whether written
or oral, which are maintained by or binding upon Orezone or any of the
Orezone Subsidiaries other than such non-compliance that would not
reasonably be expected to have a Material Adverse Effect on
Orezone.
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33
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(y)
|
Orezone Board
Approval. The Orezone Board
has:
|
|
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(i)
|
unanimously
approved the Arrangement and the other transactions contemplated herein
and authorized the entering into of this Agreement, the execution thereof,
and the performance of its provisions by
Orezone;
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|
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(ii)
|
determined,
based in part on the Fairness Opinion, that the Arrangement is fair to the
Orezone Shareholders and that the Arrangement is in the best interests of
Orezone; and
|
|
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(iii)
|
recommended
that the Orezone Shareholders vote in favour of the Arrangement
Resolution.
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(z)
|
Consents. No
consent, approval, order or authorization of, or declaration or filing
with, any Governmental Entity or other Person is required to be obtained
or made by Orezone, New Orezone or any of the Orezone Subsidiaries in
connection with the execution and delivery of this Agreement or the
completion of the Arrangement and the other transactions contemplated
herein other than:
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|
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(i)
|
any
approvals required by the Interim
Order;
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(ii)
|
any
approvals required by the Final
Order;
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|
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(iii)
|
any
filings or approvals required under the CBCA or under Applicable
Securities Laws;
|
|
|
(iv)
|
compliance
with and approvals required by the Competition
Act;
|
|
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(v)
|
any
consents, approvals, orders, authorizations, declarations or filings
required by The Standard Bank of South Africa Limited in connection with
the Bridge Facility Agreement; and
|
|
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(vi)
|
any
other consents, approvals, orders, authorizations, declarations or filings
of or with a Governmental Entity which, if not obtained, either
individually or in the aggregate would not, and either individually or in
the aggregate, could not reasonably be expected to, have a Material
Adverse Effect on Orezone or a material impact on the ability of Orezone
to complete the Arrangement and other transactions contemplated
herein.
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|
|
(aa)
|
Insurance. Orezone
maintains policies of insurance in force as of the date hereof naming
Orezone and the Orezone Subsidiaries as an insured, in amounts and in
respect of such risks as are normal and usual for companies of a similar
size operating in the mining industry and such policies are in full force
and effect as of the date hereof.
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|
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(bb)
|
Permitted Royalty
Discussions. The only discussion or negotiation with
respect to an Essakane Royalty in which Orezone or any of the Orezone
Subsidiaries is engaged is the Essakane Royalty which is subject to the
Permitted Royalty Discussions and Orezone has obtained from the Person
with whom Orezone or any of the Orezone Subsidiaries is discussing the
Essakane Royalty which is subject to the Permitted Royalty Discussions a
confidentiality agreement that is substantively the same as the
Confidentiality Agreement and contains terms no more favourable to such
Person than the Confidentiality Agreement including a standstill provision
at least as stringent as that contained in the Confidentiality
Agreement.
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34
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|
(cc)
|
Residency. Neither
Orezone nor New Orezone is a non-resident of Canada for purposes of the
Tax Act.
|
|
|
(dd)
|
IAMGOLD
Shares. Orezone does not and will not immediately before
the Effective Time beneficially own, directly or indirectly, or exercise
control or direction over any IAMGOLD
Shares.
|
|
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(ee)
|
No
Encumbrances. The New Orezone Shares to be issued to
Orezone and distributed to Orezone Shareholders pursuant to the Plan of
Arrangement will be issued as fully paid and non-assessable shares, free
and clear of any Encumbrances.
|
|
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(ff)
|
No Option on
Assets. No Person has any agreement or option or any
right or privilege capable of becoming an agreement or option for the
purchase from Orezone or any of the Orezone Subsidiaries of any of the
material properties or assets of Orezone or the Orezone Subsidiaries
(including, without limitation, any of the Orezone Assets or the Essakane
Property) other than as described or contemplated
herein.
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|
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(gg)
|
Place of Principal
Offices. The principal offices of Orezone are not
located within the United States.
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(hh)
|
Location of Assets and U.S.
Sales. The property and assets of Orezone are located
outside the United States and did not generate sales in or into the United
States exceeding U.S.$63,100,000 during the most recently completed
financial year of Orezone.
|
|
|
(ii)
|
Foreign Private
Issuer. As of the date hereof, Orezone is a “foreign
private issuer” within the meaning of Rule 405 under the 1933
Act.
|
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(jj)
|
Investment
Company. To the knowledge of Orezone, it is not an
“investment company” within the meaning of the 1940
Act.
|
|
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(kk)
|
Vote
Required. The only vote or approval of the holders of
the Orezone Shares, Orezone Options or Orezone Convertible Securities, the
Debentureholder or the holder of any other securities of Orezone necessary
to approve the Arrangement Resolution is, subject to the Interim Order,
the Orezone Shareholder Approval.
|
Survival
of Representations and Warranties
|
3.3
|
The
representations and warranties contained in this Agreement shall survive
the execution and delivery of this Agreement and shall expire and be
terminated and extinguished on the Effective Date. Any
investigation by IAMGOLD, Orezone or New Orezone and their respective
advisors shall not mitigate, diminish or affect the representations and
warranties contained in this
Agreement.
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35
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ARTICLE
4
COVENANTS
Covenants
of Orezone and New Orezone
|
4.1
|
Orezone
and New Orezone hereby covenant and agree with IAMGOLD that, prior to the
Effective Date, except with the prior written consent of IAMGOLD or other
than as expressly contemplated or permitted by this
Agreement:
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|
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(a)
|
As
soon as is reasonably practicable after the date of execution of this
Agreement, Orezone and New Orezone shall file, proceed with and diligently
prosecute an application to the Court for the Interim Order on terms and
conditions acceptable to IAMGOLD, acting
reasonably.
|
|
|
(b)
|
In
a timely and expeditious manner, Orezone
shall:
|
|
|
(i)
|
forthwith
carry out such terms of the Interim Order as are required thereby to be
carried out by Orezone and New
Orezone;
|
|
|
(ii)
|
prepare,
with the assistance of IAMGOLD, and file the Orezone Information Circular
(which shall be in a form satisfactory to IAMGOLD, acting reasonably),
together with any other documents required by Applicable Laws, in all
jurisdictions where the Orezone Information Circular is required to be
filed and mail the Orezone Information Circular, as ordered by the Interim
Order and in accordance with all Applicable Laws, in and to all
jurisdictions where the Orezone Information
Circular is required to be mailed, complying in all material respects with
all Applicable Laws on the date of the mailing thereof and in the form and
containing the information required by all Applicable Laws, including all
applicable corporate and securities legislation and requirements, and not
containing any Misrepresentation, provided that Orezone assumes no
responsibility for the accuracy or completeness of any information
relating to and provided by
IAMGOLD;
|
|
|
(iii)
|
subject
to the terms of this Agreement, Orezone shall (A) take all commercially
reasonable lawful action to solicit proxies in favour of the Arrangement
Resolution including, without limitation, retaining a proxy solicitation
agent acceptable to IAMGOLD to solicit proxies in favour of the
Arrangement Resolution, (B) recommend to holders of Orezone Shares that
they vote in favour of the Arrangement Resolution, (C) not withdraw,
modify, qualify or change in a manner adverse to IAMGOLD, or publicly
state that it intends to withdraw, modify, qualify or change in a manner
adverse to IAMGOLD such recommendation except, in each case, as expressly
permitted by this Agreement;
|
|
|
(iv)
|
use
reasonable best efforts to convene the Orezone Meeting by February 28,
2009, but in any event hold the Orezone Meeting no later than March 31,
2009, in the manner provided in the Interim
Order;
|
|
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(v)
|
provide
notice to IAMGOLD of the Orezone Meeting and allow representatives of
IAMGOLD to attend the Orezone
Meeting;
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36
..
|
|
(vi)
|
conduct
the Orezone Meeting in accordance with the Interim Order;
and
|
|
|
(vii)
|
take
all such actions as may be required under the CBCA in connection with the
Arrangement and, to the extent required to be approved by the Orezone
Shareholders, the other transactions contemplated by this
Agreement.
|
|
|
(c)
|
Orezone
will use reasonable best efforts to advise IAMGOLD, at least on a daily
basis on each of the seven Business Days prior to the date of the Orezone
Meeting, as to the aggregate tally of the proxies received by Orezone in
respect of the Arrangement
Resolution.
|
|
|
(d)
|
Except
as permitted in this Agreement, Orezone shall not adjourn, postpone or
cancel the Orezone Meeting (or propose to do so), except (i) if a quorum
is not present at the Orezone Meeting, (ii) if required by Applicable
Laws, (iii) if required by the Orezone Shareholders, or (iv) if otherwise
agreed upon with IAMGOLD in
writing.
|
|
|
(e)
|
Orezone
shall provide IAMGOLD with a copy of any purported exercise of the Dissent
Rights and written communications with any Orezone Shareholder purportedly
exercising such Dissent Rights and shall not settle or compromise any
action brought by any present, former or purported holder of any of its
securities in connection with the Arrangement or the other transactions
contemplated by this Agreement, without the prior consent of
IAMGOLD.
|
|
|
(f)
|
In
a timely and expeditious manner, Orezone shall prepare, (in consultation
with IAMGOLD), and file any mutually agreed (or as otherwise required by
Applicable Laws) amendments or supplements to the Orezone Information
Circular (which amendments or supplements shall be in a form satisfactory
to IAMGOLD, acting reasonably) with respect to the Orezone Meeting and
mail such amendments or supplements, as required by the Interim Order and
in accordance with all Applicable Laws, in and to all jurisdictions where
such amendments or supplements are required to be mailed, complying in all
material respects with all Applicable Laws on the date of the mailing
thereof.
|
|
|
(g)
|
Upon
the request of IAMGOLD, Orezone will use reasonable best efforts to
prepare or cause to be prepared and provide to IAMGOLD lists of holders of
all classes and series of securities of Orezone, including a list of the
Orezone Shareholders, the holders of Orezone Options and the holders of
Orezone Convertible Securities as well as a security position listing from
each depositary of its securities, including The Canadian Depositary for
Securities Limited and The Depositary Trust Company, to the extent
reasonably practicable, within five Business Days after the date on which
IAMGOLD requests such lists and will obtain and deliver to IAMGOLD
thereafter on demand supplemental lists setting out any changes thereto,
all such deliveries to be in printed form and, if available, in
computer-readable format.
|
|
|
(h)
|
Subject
to the approval of the Arrangement Resolution in accordance with the
provisions of the Interim Order, Orezone shall forthwith file, proceed
with and diligently prosecute an application for the Final Order (and in
any event within seven Business Days after such approval of the
Arrangement Resolution) which application shall be in form and substance
satisfactory to the Parties hereto, acting
reasonably.
|
37
..
|
|
(i)
|
Orezone
and New Orezone shall forthwith carry out the terms of the Final
Order.
|
|
|
(j)
|
Except
for proxies and other non-substantive communications, Orezone shall
furnish promptly to IAMGOLD a copy of each notice, report, schedule or
other document or communication delivered, filed or received by Orezone in
connection with this Agreement, the Arrangement and the other transactions
contemplated in this Agreement, the Interim Order or the Orezone Meeting
or any other meeting at which all Orezone Shareholders are entitled to
attend relating to special business, any filings made under any Applicable
Law and any dealings or communications with any Governmental Entity,
Securities Authority or stock exchange in connection with, or in any way
affecting, the transactions contemplated by this
Agreement.
|
|
|
(k)
|
Except
as otherwise provided in this Agreement, each of Orezone and the Orezone
Subsidiaries shall conduct its business only in, not take any action
except in, and maintain its facilities in, the ordinary and regular course
of business consistent with past practice and it shall use its best
efforts to maintain and preserve its business organization and
assets.
|
|
|
(l)
|
Orezone
shall keep IAMGOLD fully informed as to all material decisions or actions
required or required to be made with respect to the operations of the
business of Orezone, and will allow representatives of IAMGOLD to
participate in any such material
decision making process. Orezone shall grant the
representatives of IAMGOLD access to the Orezone Assets and the Essakane
Property as IAMGOLD may
request.
|
|
|
(m)
|
Except
in connection with each Pre-Acquisition Reorganization, the Arrangement or
the Private Placement, Orezone shall not and shall cause the Orezone
Subsidiaries not to directly or indirectly, do or permit to occur any of
the following:
|
|
|
(i)
|
issue,
sell, or agree to issue or sell, any Orezone Shares or any options,
warrants, calls, conversion privileges or rights of any kind to acquire
any Orezone Shares, create any Encumbrance on any of the shares of the
Orezone Subsidiaries, or permit the Orezone Subsidiaries to issue, sell,
or agree to issue, sell, pledge, lease or dispose of, any shares of, or
any options, warrants, calls, conversion privileges or rights of any kind
to acquire any shares of, the Orezone Subsidiaries, other than the issue
of Orezone Shares pursuant to the exercise of Orezone Options and the
conversion of Orezone Convertible Securities or the Convertible Debenture
outstanding on the date hereof in accordance with their terms as of the
date hereof;
|
|
|
(ii)
|
amend
or propose to amend its constating documents or, except as agreed to with
IAMGOLD, any of the terms of the Orezone Options, the Orezone Convertible
Securities or the Convertible Debenture as they exist on the date
hereof;
|
|
|
(iii)
|
split,
combine or reclassify any of the shares of Orezone or any of the Orezone
Subsidiaries or declare, set aside or pay any dividend or other
distribution payable in cash, securities, property or otherwise with
respect to the shares of Orezone or any of the Orezone
Subsidiaries;
|
38
..
|
|
(iv)
|
redeem,
purchase or offer to purchase any Orezone Shares and, other than pursuant
to the Orezone Stock Option Plans, any options or obligations or rights
under contracts, agreements and commitments existing as of the date
hereof;
|
|
|
(v)
|
adopt
any resolution or enter into any agreement providing for a amalgamation,
merger, consolidation, reorganization, liquidation, dissolution or other
extraordinary transaction, adopt any plan of liquidation or reorganize,
amalgamate or merge with any other
Person;
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|
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(vi)
|
sell,
pledge, lease, encumber or otherwise dispose of the Orezone Assets or the
Essakane Property or any interest therein and, except as contemplated
herein, sell, pledge, encumber, lease or otherwise dispose of any other
material properties or assets;
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(vii)
|
grant
or enter into any agreement, written or verbal, with respect to any
royalty or similar arrangement or issue any instrument having the same
economic effect as a royalty on the Essakane Property (an “Essakane Royalty”),
provided that, for greater certainty, Orezone may continue to discuss or
negotiate an Essakane Royalty in the context of the Permitted Royalty
Discussions, but shall not grant or enter into any agreement, written or
verbal, in respect of such Essakane
Royalty;
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(viii)
|
except
in the ordinary and regular course of business (up to an amount not to
exceed, in the aggregate, $100,000) or as required by Applicable Laws,
enter into or modify in any material respect any contract, agreement,
licence, franchise, Environmental Approval, lease transaction, commitment
or other right or obligation or arrangement attributable to the Essakane
Property including, without limitation, any Essakane
Contract;
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|
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(ix)
|
abandon
or fail to diligently pursue any application to renew any existing
licence, permit, order, claim, authorization, consent, approval (including
Environmental Approvals) or registration related to the Essakane
Property;
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|
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(x)
|
make
any investment in any Person except in the ordinary and regular course of
business, or acquire or agree to acquire (by merger, amalgamation,
acquisition of stock or assets or otherwise) any Person or any material
properties or assets;
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(xi)
|
incur
any indebtedness for borrowed money or any other material liability or
obligation or issue any debt securities or assume, guarantee, endorse or
otherwise as an accommodation become responsible for, the obligations of
any other Person, or make any loans or
advances;
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(xii)
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authorize,
recommend, propose or agree to any release or relinquishment of any
standstill agreement or of any other material contractual
right;
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39
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(xiii)
|
enter
into any xxxxxx, swaps or other similar financial instruments or
transactions;
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(xiv)
|
enter
into any agreements with its directors or officers or their respective
affiliates or associates;
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(xv)
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change
any accounting method, principle or practice except for any changes as a
result of transition to IFRS or changes as required by Applicable
Laws;
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(xvi)
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make
or change any tax election, change an annual tax accounting period, adopt
or change any tax accounting method, enter into any closing agreement,
surrender any right to claim a refund of Taxes, consent to any extension
or waiver of the statute of limitations period applicable to any Tax claim
or assessment, (other than in the ordinary and regular course of business
or as required by Applicable Laws);
or
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(xvii)
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authorize,
propose, permit or agree to any of the
foregoing.
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(n)
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Orezone
shall not, and shall cause the Orezone Subsidiaries not to, directly or
indirectly, insofar as it relates to the Orezone Assets or the Essakane
Property, enter into
new commitments of a capital expenditure nature or incur any new
contingent liabilities other than (i) ordinary course expenditures
including those contemplated as part of the mine development plan (up to
an amount not to exceed, in the aggregate, $100,000), (ii) expenditures
required by Applicable Law, (iii) expenditures made in connection with the
Arrangement and the other transactions contemplated in this Agreement,
(iv) expenditures required by any of the Essakane Contracts, and (v)
capital expenditures required to prevent the occurrence of a Material
Adverse Effect on Orezone or the Orezone
Subsidiaries.
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(o)
|
Orezone
shall not create any new obligations or liabilities or modify or in any
manner amend any existing obligations and liabilities to pay any amount,
including loan amounts, to officers, directors, employees or consultants
of Orezone or any of the Orezone Subsidiaries, other than for salary,
bonuses and directors’ fees in the ordinary course, in each case in
amounts consistent with past practice, or obligations or liabilities
arising in the ordinary and regular course of business prior to the
Effective Time.
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(p)
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Orezone
shall not adopt or amend or make any contribution to any profit sharing,
option, deferred compensation, insurance, incentive compensation, other
compensation or other similar plan, agreement, trust, fund or arrangements
for the benefit of employees except in the ordinary
course.
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(q)
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Neither
Orezone nor any of the Orezone Subsidiaries shall otherwise take any
action that could reasonably be expected to interfere with or be
inconsistent with the completion of the Arrangement or the transactions
contemplate in this Agreement.
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(r)
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Orezone
shall use reasonable best efforts, and shall cause each of the Orezone
Subsidiaries to use reasonable best efforts, to cause their respective
current insurance (or reinsurance) policies not to be cancelled or
terminated or any of the coverage thereunder to lapse, unless
simultaneously with such termination, cancellation or lapse, replacement
policies underwritten by insurance and re-insurance companies of
internationally recognized standing providing coverage equal to or greater
than the coverage under the cancelled, terminated or lapsed policies for
substantially similar premiums are in full force and
effect.
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40
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(s)
|
Orezone
shall use reasonable best efforts, and shall cause each of the Orezone
Subsidiaries to use reasonable best efforts, (i) to preserve intact its
business organizations and the rights under the Essakane Contracts, (ii)
to not do anything or fail to do anything which could lead to a breach
under any Essakane Contract, (iii) to keep available the services of its
officers, employees, agents and consultants as a group, (iv) to maintain
satisfactory relationships with suppliers, distributors, customers and
others having business relationships with it, (v) to not take any action
which could reasonably be expected to be prejudicial to the Essakane
Property and (vi) to not take any action which would render, or which
reasonably may be expected to render, any representation or warranty made
by it in this Agreement untrue at any time prior to the Effective Date if
then made.
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(t)
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Orezone
will not engage in any business, enterprise or other activity different
from that carried on by it at the date of this Agreement that could
reasonably be expected to have a Material Adverse Effect on Orezone or the
Orezone Subsidiaries, or enter into
any transaction or incur (except in respect of obligations or liabilities
to which it is already legally subject) any material obligation,
expenditure or liability other than in the ordinary and regular course of
business as presently
conducted.
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(u)
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Orezone
will furnish to IAMGOLD such information, in addition to the information
contained in this Agreement, relating to Orezone, New Orezone, the Orezone
Subsidiaries, the Orezone Assets and the Essakane Property as may
reasonably be requested by IAMGOLD, and such information and any other
information relating to Orezone, New Orezone and the Orezone Subsidiaries
provided by Orezone to IAMGOLD will be true and complete in all material
respects and will not contain a
Misrepresentation.
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|
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(v)
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Orezone
shall not take any action, or refrain from taking any action (subject to
reasonable best efforts), or permit any action to be taken or not taken,
inconsistent with the provisions of this Agreement or that would
reasonably be expected to materially impede the completion of the
Arrangement or the other transactions contemplated herein or would render,
or that could reasonably be expected to render, any representation or
warranty made by Orezone or New Orezone in this Agreement untrue or
inaccurate in any material respect at any time prior to the Effective Time
if then made, or that would or could have a Material Adverse Effect on
Orezone.
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(w)
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Orezone
will promptly notify IAMGOLD in writing
if:
|
|
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(i)
|
Orezone
becomes aware that any of the representations and warranties of Orezone or
New Orezone in this Agreement are untrue or inaccurate in any material
respect;
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|
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(ii)
|
there
has been, or is reasonably expected to be, any breach of any covenant or
agreement of Orezone or New Orezone contained in this Agreement;
or
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41
..
|
|
(iii)
|
there
has been any Material Adverse Change in respect of
Orezone.
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(x)
|
Orezone
and New Orezone shall use reasonable best efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary to
consummate and make effective as promptly as is practicable the
Arrangement and the other transactions contemplated in this Agreement,
including the execution and delivery of such documents as IAMGOLD may
reasonably request, and shall use reasonable best efforts to obtain all
necessary waivers, consents and approvals and to effect all necessary
registrations and filings, including, but not limited to, approvals and
filings under Applicable Securities Laws, the TSX, Alternext and
submissions of information requested by Governmental
Entities.
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|
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(y)
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Each
of Orezone, New Orezone and the Orezone Subsidiaries shall cooperate, and
shall cause their respective affiliates, officers, employees, agents,
auditors and representatives reasonably to cooperate, in preparing and
filing all Tax Returns, resolving all disputes and audits with respect to
all taxable periods relating to Taxes, and in any other matters relating
to Taxes, including by maintaining and making available to IAMGOLD all
books, records and other information of Orezone, New Orezone
and the Orezone Subsidiaries related to Taxes and shall timely pay all
Taxes arising before the Effective
Date.
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|
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(z)
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Each
of Orezone and New Orezone shall execute and deliver, or cause to be
executed and delivered, such customary agreements, certificates,
resolutions and other documents and instruments as may be requested by the
other Parties hereto, all in form satisfactory to the other Parties
hereto, acting reasonably, necessary or required in order to complete the
Arrangement and the other transactions contemplated herein, including any
Pre-Acquisition Reorganization, and, in the case of each Pre-Acquisition
Reorganization, such opinions as are required or are customary for such
Pre-Acquisition Reorganization.
|
Covenants
of Orezone and New Orezone Regarding Non-Solicitation
|
4.2
|
(a)
|
Orezone
and New Orezone shall, and Orezone shall direct and cause its
representatives and the Orezone Subsidiaries and their respective
representatives to, immediately cease and cause to be terminated any
solicitation, encouragement, activity, discussion, negotiation or process
with any Person that may be ongoing with respect to any proposal that
constitutes, or may reasonably be expected to constitute, an Acquisition
Proposal whether or not initiated by Orezone, New Orezone or any of the
Orezone Subsidiaries and in connection therewith, Orezone shall request
the return of all confidential information regarding Orezone, New Orezone
and the Orezone Subsidiaries previously provided to any Person (other than
IAMGOLD). Orezone and New Orezone further agree not to release
any such Person from any standstill or confidentiality agreement or
provision to which such Person is a party with Orezone, New Orezone or any
of the Orezone Subsidiaries and to take all required actions to enforce
such standstill and confidentiality agreements and
provisions.
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|
|
(b)
|
Subject
to subsection 4.2(c) hereof and section 4.3 hereof, Orezone and New
Orezone hereby covenant and agree that neither shall, and Orezone shall
not authorize or permit any of the Orezone Subsidiaries, and neither
Orezone nor New Orezone shall authorize of permit any of the
representatives of Orezone, New Orezone or of any of the Orezone
Subsidiaries, directly or indirectly,
to:
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42
..
|
|
(i)
|
make,
solicit, initiate, encourage, entertain, promote or facilitate, including
by way of furnishing information, permitting any visit to facilities or
properties of Orezone, New Orezone or any of the Orezone Subsidiaries or
entering into any form of agreement, written or verbal, any inquiries or
the making of any proposal which does or could constitute an Acquisition
Proposal or potential Acquisition
Proposal;
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|
|
(ii)
|
participate,
directly or indirectly, in any discussions or negotiations regarding any
Acquisition Proposal or potential Acquisition
Proposal;
|
|
|
(iii)
|
withdraw,
modify, qualify or change in a manner adverse to IAMGOLD, or publicly
state that it intends to withdraw, modify, qualify or change in a manner
adverse to IAMGOLD, the approval or recommendation of the Orezone Board of
the Arrangement (it being understood that failing to affirm the approval
or recommendation of the Orezone Board of the Arrangement
after an Acquisition Proposal has been publicly announced shall be
considered a modification which is adverse to IAMGOLD for the purposes of
this subsection if the Orezone Board has not affirmed the approval or
recommendation of the Arrangement on the date which is the earlier of (A)
15 calendar days after the date on which the Acquisition Proposal has been
publicly announced and (B) five Business Days prior to the Orezone
Meeting);
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|
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(iv)
|
approve
or recommend any Acquisition Proposal;
or
|
|
|
(v)
|
enter
into any agreement, written or verbal, related to any Acquisition Proposal
or requiring Orezone or New Orezone to abandon, terminate or fail to
consummate the Arrangement or any other transaction contemplated herein or
providing for the payment of any break, termination or other fee or
expense to any Person in the event that Orezone, New Orezone or any of the
Orezone Subsidiaries completes the Arrangement and the other transactions
contemplated herein or any other transaction with IAMGOLD or any of the
IAMGOLD Subsidiaries agreed to prior to the termination of this
Agreement.
|
|
|
|
None
of Orezone, New Orezone or any Orezone Subsidiary shall, directly or
indirectly, consider, discuss, negotiate, accept, approve or recommend an
Acquisition Proposal or provide information to any Person proposing an
Acquisition Proposal, in each case after the date of the approval of the
Arrangement by the Orezone
Shareholders.
|
|
|
(c)
|
Notwithstanding
subsection 4.2(b) hereof or any other provision of this Agreement, the
Orezone Board may, prior to the approval of the Arrangement Resolution by
the Orezone Shareholders, consider and participate, directly or
indirectly, in any discussions or negotiations with, or provide
information to, or permit any visit to the properties or facilities of
Orezone, New Orezone or any of the Orezone Subsidiaries by, any Person who
has delivered a bona fide written Acquisition
Proposal:
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43
..
|
|
(i)
|
which
was not solicited or encouraged after the date of this
Agreement;
|
|
|
(ii)
|
did
not otherwise result from a breach of this section 4.2;
and
|
|
|
(iii)
|
that
the Orezone Board determines in good faith, after consultation with the
Financial Advisor and outside legal counsel, is or would, if completed,
reasonably be expected to constitute, a Superior
Proposal;
|
provided,
however, that prior to taking any such action, Orezone must;
|
|
(iv)
|
give
notice to IAMGOLD of such Acquisition Proposal as provided in subsection
4.2(d) hereof; and
|
|
|
(v)
|
obtain
a confidentiality agreement from the Person making such Acquisition
Proposal that is substantively the same as the Confidentiality Agreement,
and containing terms no more favourable to such Person than the
Confidentiality Agreement including a standstill
provision at least as stringent as that contained in the Confidentiality
Agreement.
|
If
Orezone, New Orezone or any of the Orezone Subsidiaries receives a request for
material non-public information from a Person who has made an unsolicited bona
fide written Acquisition Proposal and Orezone is permitted, as contemplated
under this subsection 4.2(c), to consider and participate, directly or
indirectly, in any discussions or negotiations with, or provide information to,
or permit any visit to the properties or facilities of Orezone, New Orezone or
any of the Orezone Subsidiaries, subject to the execution by such Person of the
confidentiality agreement as described above, provide such Person with such
information and access; provided that Orezone sends a copy of any such
confidentiality agreement to IAMGOLD promptly upon its execution and IAMGOLD is
provided with a list of, and a copy of, the information provided to such Person
(if not previously provided with such information) and is immediately provided
with access to similar information to which such Person is provided (if not
previously provided with such access).
|
|
(d)
|
From
and after the date of this Agreement, Orezone shall promptly (and in any
event within 24 hours) notify IAMGOLD, at first orally and then in
writing, of any inquiry, proposal or offer relating to or constituting an
Acquisition Proposal, or any request for non-public information relating
to Orezone, New Orezone or any of the Orezone
Subsidiaries. Such notice shall include a description of the
terms and conditions of any such proposal, inquiry or offer, the identity
of the Person making such proposal, inquiry or offer and provide such
other details of the proposal, inquiry or offer as IAMGOLD may reasonably
request. Orezone shall keep IAMGOLD fully informed on a prompt
basis of the status, including any change to the material terms, of any
such inquiry, proposal or offer.
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44
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|
|
(e)
|
Nothing
contained in subsection 4.2(b) above shall prohibit the Orezone Board from
taking any action prohibited by subsection 4.2(b)(iii), if the Orezone
Board determines, in good faith (after consultation with outside legal
counsel) that such action or inaction is necessary for the Orezone Board
to act in a manner consistent with its fiduciary duties or Applicable
Laws, provided that Orezone may not proceed with the announcement of such
decision before giving written notice of such decision to
IAMGOLD. The foregoing shall not relieve Orezone from its
obligation to proceed to call and hold the Orezone Meeting and to hold a
vote of the Orezone Shareholders on the Arrangement Resolution, except in
circumstances where this Agreement is terminated in accordance with the
terms hereof prior to the date of the Orezone
Meeting.
|
|
|
(f)
|
Orezone
and New Orezone shall ensure that each of its respective officers and
directors and the Orezone Subsidiaries and their respective officers and
directors and all advisors and representatives retained by any of them are
aware of the provisions of this section 4.2, and it shall be responsible
for any breach of this section 4.2 by such officers, directors, advisors
or representatives.
|
Right
to Accept a Superior Proposal
|
4.3
|
(a)
|
If
Orezone, New Orezone and the Orezone Subsidiaries have complied with
section 4.2 of this Agreement with respect thereto, Orezone may accept,
approve, recommend or enter into any agreement, understanding or
arrangement in respect of a Superior Proposal prior to the approval of the
Arrangement Resolution by the Orezone Shareholders and terminate this
Agreement if, and only if (with the exception of a confidentiality
agreement which complies with section 4.2 hereof the execution of which
shall not be subject to the conditions of this section
4.3):
|
|
|
(i)
|
Orezone
has provided IAMGOLD with a copy of the document containing the Superior
Proposal;
|
|
|
(ii)
|
five
Business Days have elapsed from the later of (A) the date IAMGOLD received
written notice (a “Superior Proposal
Notice”) advising IAMGOLD that the Orezone Board has resolved,
subject only to compliance with this section 4.3, to accept, approve,
recommend or enter into an agreement in respect of such Superior Proposal,
specifying the terms and conditions of such Superior Proposal and
identifying the Person making such Superior Proposal, and (B) the date
IAMGOLD received a copy of the document containing such Superior
Proposal;
|
|
|
(iii)
|
the
Orezone Board has determined in good faith (after consultation with
outside legal counsel) that it is necessary for the Orezone Board to take
such action in order to discharge properly its fiduciary
duties;
|
|
|
(iv)
|
such
Superior Proposal does not provide for the payment of any break,
termination or other fee or expense to the Person making the Superior
Proposal in the event that Orezone, New Orezone or any of the Orezone
Subsidiaries completes the Arrangement and the other transactions
contemplated in this Agreement or any other transaction with IAMGOLD or
any of the IAMGOLD Subsidiaries agreed to prior to the termination of this
Agreement,
|
|
|
(v)
|
taking
into account any revised proposal made by IAMGOLD since receipt of the
Superior Proposal Notice, such Superior Proposal remains a Superior
Proposal and the Orezone Board has again made the determinations referred
to in this subsection 4.3(a); and
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45
..
|
|
(vi)
|
Orezone
has previously or concurrently paid or caused to be paid to IAMGOLD the
Termination Fee payable under section 7.3 of this
Agreement.
|
In the
event that Orezone provides IAMGOLD with a Superior Proposal Notice on a date
that is less than five Business Days prior to the Orezone Meeting, Orezone shall
adjourn the Orezone Meeting to a date that is not less than five Business Days
and not more than 10 Business Days after the date of receipt by IAMGOLD of the
Superior Proposal Notice.
|
|
(b)
|
During
the five Business Day period referred to in paragraph 4.3(a)(ii) above,
IAMGOLD shall have the right, but not the obligation, to offer to amend
the terms of this Agreement. The Orezone Board will review any
proposal by IAMGOLD to amend
the terms of this Agreement in good faith in order to determine whether
IAMGOLD’s amended proposal upon acceptance by Orezone would result in such
Superior Proposal ceasing to be a Superior Proposal. If the
Orezone Board so determines, Orezone shall enter into an amended agreement
with IAMGOLD reflecting IAMGOLD’s amended proposal. If the
Orezone Board continues to believe, in good faith and after consultation
with the Financial Advisor and outside legal counsel, that such Superior
Proposal remains a Superior Proposal and therefore rejects IAMGOLD’s
amended proposal, Orezone may, on termination of this Agreement in
accordance with section 7.1 hereof and payment of the Termination Fee as
required pursuant to section 7.3 hereof, accept, approve, recommend or
enter into an agreement, understanding or arrangement in respect of such
Superior Proposal.
|
|
|
(c)
|
Orezone
and New Orezone hereby acknowledge and agree that each successive material
modification of any Acquisition Proposal shall constitute a new
Acquisition Proposal for purposes of section 4.2 hereof and the
requirement under paragraph 4.3(a)(ii) hereof to initiate an additional
five Business Day notice period.
|
|
|
(d)
|
If
the Orezone Information Circular has been sent to the Orezone Shareholders
prior to the expiry of the five Business Day period set forth in
subsection 4.3(a) hereof and, during such period, IAMGOLD requests in
writing that the Orezone Meeting proceed, unless otherwise ordered by the
Court, Orezone shall continue to take all reasonable actions necessary to
hold the Orezone Meeting and to cause the Arrangement to be voted on at
the Orezone Meeting.
|
Covenants
of Orezone and New Orezone Regarding Reorganization
|
4.4
|
Orezone
and New Orezone shall, and Orezone shall cause each of the Orezone
Subsidiaries:
|
|
|
(a)
|
at
the expense of Orezone, to take all action to do, or cause to be done, all
things necessary, proper or advisable to and to prepare all documentation
necessary to complete following the Orezone Meeting and within one
Business Day prior to the Effective
Date:
|
|
|
(i)
|
the
transfer by Orezone Inc. to Orezone
of
|
46
..
|
|
A.
|
all
of the outstanding shares of Essakane (BVI) Limited,
and
|
|
|
B.
|
the
indebtedness of Orezone Essakane Limited to Orezone Inc. (the “OEL
Debt”),
|
in
partial satisfaction of the indebtedness of Orezone Inc. to Orezone (the “OINC Debt”) (collectively the
“Essakane
Transfer”);
|
|
(ii)
|
the
transfer by Orezone to New Orezone of all of the outstanding shares of
Orezone Inc. and the balance of the OINC Debt in exchange for New Orezone
Shares ( collectively the “Orezone Inc. Transfer”);
and
|
|
|
(iii)
|
the
New Orezone Cash Contribution;
|
|
|
in
each case in form and substance satisfactory to
IAMGOLD;
|
|
|
(b)
|
at
the expense of Orezone, on the Effective Date provide IAMGOLD with a
statement verified by an officer of Orezone and New Orezone setting forth
a detailed calculation and accounting of the New Orezone Cash
Contribution, in form and substance satisfactory to
IAMGOLD;
|
|
|
(c)
|
at
the expense of Orezone, to take all action to do, or cause to be done, all
things necessary, proper or advisable to and prepare all documentation
necessary to complete such other reorganizations of Orezone, New Orezone
or the Orezone Subsidiaries and their respective businesses, operations
and assets prior to the Effective Date as IAMGOLD may request, acting
reasonably in order to give effect to the transactions contemplated herein
(each a “Pre-Acquisition
Reorganization” and which term shall include the Essakane Transfer,
the Orezone Inc. Transfer, and the New Orezone Cash Contribution) and the
Plan of Arrangement, if required, shall be modified accordingly, in each
case in form and substance acceptable to IAMGOLD;
and
|
|
|
(d)
|
cooperate
fully with IAMGOLD and its advisors in connection with structuring,
planning and implementing any Pre-Acquisition Reorganization that might be
undertaken.
|
The
obligations of Orezone pursuant to subsection 4.4(c) hereof shall be conditional
on the understanding that any Pre-Acquisition Reorganization shall not be
prejudicial to Orezone, any of the Orezone Subsidiaries or any of the
securityholders of Orezone and shall not require Orezone, New Orezone or any the
of the Orezone Subsidiaries to contravene any Applicable Laws or their
respective organizational documents. Orezone shall its use its best
efforts to obtain all necessary consents, approvals or waivers from any Person
to effect each Pre-Acquisition Reorganization.
The
Parties hereto will seek to have any Pre-Acquisition Reorganization made
effective as of the last minute of the day preceding the Effective Date, and in
any event after IAMGOLD has confirmed that the conditions in section 5.1 and
subsections 5.3(d), 5.3(e) and 5.3(g) have been met or waived.
47
..
Covenants
of IAMGOLD
|
4.5
|
IAMGOLD
hereby covenants and agrees with Orezone and New Orezone that, prior to
the Effective Date:
|
|
|
(a)
|
IAMGOLD
shall not take any action, or refrain from taking any action (subject to
reasonable best efforts), or permit any action to be taken or not taken,
inconsistent with the provisions of this Agreement or that would
reasonably be expected to materially impede the completion of the
Arrangement or the other transactions contemplated herein or would render,
or that could reasonably be expected to render, any representation or
warranty made by IAMGOLD in this Agreement untrue or inaccurate in any
material respect at any time prior to the Effective Time if then made or
that would or could have a Material Adverse Effect on
IAMGOLD.
|
|
|
(b)
|
IAMGOLD
will promptly notify Orezone and New Orezone in writing
if:
|
|
|
(i)
|
IAMGOLD
becomes aware that any of the representations and warranties of IAMGOLD in
this Agreement is untrue or inaccurate in any material
respect;
|
|
|
(ii)
|
there
has been, or is reasonably expected to be, any breach of any covenant or
agreement of IAMGOLD contained in this Agreement;
or
|
|
|
(iii)
|
there
has been a Material Adverse Change in respect of
IAMGOLD.
|
|
|
(c)
|
IAMGOLD
shall use all reasonable best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective as promptly as is practicable
the Arrangement and the other transactions contemplated in this Agreement,
including the execution and delivery of such documents as Orezone may
reasonably request, and to use reasonable best efforts to obtain all
necessary waivers, consents and approvals and to effect all necessary
registrations and filings, including, but not limited to, approvals and
filings under Applicable Securities Laws, the TSX and the NYSE and
submissions of information requested by Governmental
Entities.
|
|
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(d)
|
In
a timely and expeditious manner, IAMGOLD shall provide to Orezone all
information as may be reasonably requested by Orezone or as required by
the Interim Order or Applicable Laws with respect to IAMGOLD and its
businesses and properties for inclusion in the Orezone Information
Circular or in any amendment or supplement to the Orezone Information
Circular that complies in all material respects with all Applicable Laws
on the date of the mailing thereof and containing all Material Facts
relating to IAMGOLD required to be disclosed in the Orezone Information
Circular and not containing any Misrepresentation with respect
thereto. IAMGOLD shall fully cooperate with Orezone in the
preparation of the Orezone Information Circular and shall provide such
assistance as Orezone may reasonably request in connection
therewith.
|
|
|
(e)
|
IAMGOLD
shall not split, combine or reclassify any of the IAMGOLD Shares or, other
than in accordance with past practice, declare, set aside or pay any
dividend or other distribution payable in cash, securities, property or
otherwise with respect to the IAMGOLD
Shares.
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48
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|
|
(f)
|
IAMGOLD
shall use reasonable best efforts to preserve intact its business
organizations.
|
|
|
(g)
|
IAMGOLD
shall prepare and file with the applicable Governmental Authorities, and
the NYSE and the TSX, all necessary applications required in order to
permit the issue of IAMGOLD Shares upon the conversion of Orezone
Convertible Securities and the Convertible Debenture and the exercise of
Orezone Options in accordance with the terms
thereof.
|
|
|
(h)
|
IAMGOLD
shall incorporate a direct wholly-owned subsidiary (“MergeCo”) of IAMGOLD as
required in order to effect the Arrangement and the requirements specified
in the Plan of Arrangement.
|
|
4.6
|
IAMGOLD
covenants and agrees with Orezone and New Orezone that, immediately
following the Effective Date it will cause IAMGOLD Amalco (as defined in
the Plan of Arrangement) to forgive
that portion of the principal amount of the OEL Debt that is in excess of
the fair market value of the of the OEL Debt, as reasonably determined by
IAMGOLD, at the time of such
forgiveness.
|
Change
of New Orezone Name
|
4.7
|
The
Parties hereto hereby acknowledge and agree that effective as at the
Effective Time, New Orezone will change its name to Orezone Inc. and
Orezone shall change its name to a name acceptable to all of the Parties
hereto.
|
United
States Tax Matters
|
4.8
|
Each
Party, to the extent it is required to make any filings in the United
States, agrees that, except as otherwise required by Applicable Laws, as
determined by such Party hereto in its sole discretion, it shall (a)
report the acquisition of Orezone by IAMGOLD and the immediately
subsequent amalgamation or merger of Orezone with MergeCo as an integrated
transaction that qualifies as a “reorganization” within the meaning of
section 368(a) of the Code on its U.S. federal Tax Returns pursuant to a
single “plan of reorganization” within the meaning of U.S. Treasury
Regulations §§1.368-2(g) and 1.368-3, which plan of reorganization the
parties adopt by executing this Agreement, and (b) retain such records and
file such information with the Internal Revenue Service as is required to
be retained and filed in connection with the
Arrangement.
|
ARTICLE
5
CONDITIONS
PRECEDENT
Mutual
Conditions Precedent of Orezone, New Orezone and IAMGOLD
|
5.1
|
The
respective obligations of Orezone, New Orezone and IAMGOLD to complete the
Arrangement shall be subject to the satisfaction, at or before the
Effective Time, of the following conditions precedent, each of which may
only be waived, in whole or in part, by mutual consent of Orezone, New
Orezone and IAMGOLD:
|
|
|
(a)
|
the
Interim Order shall have been granted in form and substance satisfactory
to the Parties hereto, acting reasonably, and shall not have been set
aside or modified in a manner unacceptable to the Parties hereto, acting
reasonably, on appeal or otherwise;
|
49
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|
|
(b)
|
the
Arrangement Resolution shall have been approved by the Orezone
Shareholders at the Orezone Meeting in accordance with the provisions of
the Interim Order;
|
|
|
(c)
|
the
Final Order shall have been granted in form and substance satisfactory to
the Parties hereto, acting reasonably, and shall not have been set aside
or modified in a manner unacceptable to the Parties hereto, acting
reasonably, on appeal or otherwise;
|
|
|
(d)
|
each
Pre-Acquisition Reorganization including, without limitation, the Essakane
Transfer, the Orezone Inc. Transfer and the New Orezone Cash Contribution,
shall have been completed;
|
|
|
(e)
|
New
Orezone shall be deemed to be a reporting issuer under the Securities Laws
of the Province of Ontario on the Effective
Date;
|
|
|
(f)
|
the
New Orezone Shares shall have been conditionally approved to be listed on
either the TSX or the TSX Venture
Exchange;
|
|
|
(g)
|
the
TSX shall have conditionally approved the listing thereon and the NYSE
shall have authorized the listing thereon, subject to official notice of
issuance, of the IAMGOLD Shares to be issued pursuant to the Arrangement
as of the Effective Date, or as soon as possible
thereafter;
|
|
|
(h)
|
the
distribution of the IAMGOLD Shares and New Orezone Shares and any other
securities of IAMGOLD issued in exchange for securities of Orezone in the
United States pursuant to the Arrangement shall be exempt from
registration requirements under the 1933 Act and, except with respect to
Persons deemed “affiliates” of IAMGOLD or New Orezone, as the case may be,
under the 1933 Act, the IAMGOLD Shares and New Orezone Shares and any
other securities of IAMGOLD issued in exchange for securities of Orezone
to be distributed in the United States pursuant to the Arrangement shall
not be subject to resale restrictions in the United States under the 1933
Act, provided however, that Orezone Convertible Securities, the
Convertible Debenture or any IAMGOLD securities issued in exchange
therefor (other than the Orezone Options or any options to purchase
IAMGOLD Shares issued in exchange therefor) may not be exercised in the
United States on behalf or for the benefit of, a U.S. person (as such term
is defined in Regulation S under the 1933 Act), unless registered under
the 1933 Act or an exemption is available from the registration
requirements of the 1933 Act and any applicable state securities laws, and
the holder furnishes to IAMGOLD an opinion of counsel or other
documentation satisfactory to IAMGOLD to such
effect;
|
|
|
(i)
|
the
Parties hereto shall have each filed all notices and information required
or desirable, in the Parties' joint discretion, acting reasonably and (i)
The Commissioner of Competition (“Commissioner”) shall
have issued an advance ruling certificate pursuant to section 102 of the
Competition Act; or (ii)(A) the waiting period under section 123 of the
Competition Act shall have expired, been terminated or waived pursuant to
section 113(c) of the Competition Act and (B) the Commissioner shall have
advised IAMGOLD, in writing, that she has no intention to file an
application under Part VIII of the Competition Act in connection with the
arrangement and the other transactions contemplated by this Agreement;
and
|
50
..
|
|
(j)
|
this
Agreement shall not have been terminated pursuant to Article 7
hereof.
|
Conditions
Precedent to Obligations of Orezone and New Orezone
|
5.2
|
The
obligation of Orezone and New Orezone to complete the Arrangement is
subject to the satisfaction, on or before the Effective Time, of each of
the following conditions, which conditions are for the sole benefit of
Orezone and New Orezone and may be waived by Orezone and New Orezone in
whole or in part by notice in writing to IAMGOLD without prejudice to the
rights of Orezone and New Orezone to rely on any other
condition:
|
|
|
(a)
|
there
shall not have been any event, change, occurrence or state of facts that,
either individually or in the aggregate, have or could reasonably be
expected to have a Material Adverse Effect on
IAMGOLD;
|
|
|
(b)
|
the
representations and warranties made by IAMGOLD in this Agreement that are
qualified by the expression “Material Adverse Change” or “Material Adverse
Effect” shall be true and correct as of the Effective Time as if made on
and as of such date (except to the extent that such representations and
warranties speak as of an earlier date, in which event such
representations and warranties shall be true and correct as of such
earlier date), and all other representations and warranties made by
IAMGOLD in this Agreement shall be true and correct in all material
respects as of the Effective Time as if made on and as of such date
(except to the extent that such representations and warranties speak as of
an earlier date, in which event such representations and warranties shall
be true and correct as of such earlier date), in either case, except where
any failures or breaches of representations and warranties would not,
either individually or in the aggregate, in the reasonable judgment of
Orezone or New Orezone, have a Material Adverse Effect on, or constitute a
Material Adverse Change in respect of, IAMGOLD, and IAMGOLD shall have
provided to Orezone and New Orezone a certificate of two officers thereof
certifying such accuracy or lack of Material Adverse Effect or Material
Adverse Change on the Effective Date. No representation or
warranty made by IAMGOLD hereunder shall be deemed not to be true and
correct if the facts or circumstances which make such representation or
warranty untrue or incorrect are disclosed or referred to in the IAMGOLD
Disclosure Letter, or provided for or stated to be exceptions under this
Agreement;
|
|
|
(c)
|
IAMGOLD
shall have complied in all material respects with its covenants herein and
IAMGOLD shall have provided to Orezone and New Orezone a certificate of
two officers thereof, certifying that, as of the Effective Time, it has so
complied with such covenants
herein;
|
|
|
(d)
|
(i)
all consents, waivers, permits, exemptions, orders and approvals of, and
any registrations and filings with, any Governmental Entity and the expiry
of any waiting periods, in connection with, or required to permit, the
completion of the Arrangement, and (ii) all third person and other
consents, waivers, permits, exemptions, orders, approvals, agreements and
amendments and modifications to agreements, indentures or arrangements,
the failure of which to obtain or the non-expiry of which, either
individually or in the aggregate would, or could reasonably be expected to
have, a Material Adverse Effect on IAMGOLD or materially impede the
completion of the Arrangement, shall have been obtained or received on
terms that are reasonably satisfactory to each of Orezone and New
Orezone;
|
51
..
|
|
(e)
|
there
shall have been no action taken under any Applicable Law or by any
Governmental Entity which (i) makes it illegal or otherwise directly or
indirectly restrains, enjoins or prohibits the completion of the
Arrangement, or (ii) results or could reasonably be expected to result in
a judgment, order, decree or assessment of damages, directly or
indirectly, relating to the Arrangement which has, or could have, a
Material Adverse Effect on IAMGOLD, or Orezone or on New Orezone
subsequent to the Effective Date;
|
|
|
(f)
|
the
IAMGOLD Board shall have adopted all necessary resolutions and all other
necessary corporate action shall have been taken by IAMGOLD to permit the
consummation of the Arrangement.
|
Conditions
Precedent to Obligations of IAMGOLD
|
5.3
|
The
obligation of IAMGOLD to complete the Arrangement is subject to the
satisfaction of each of the following conditions on or before the
Effective Time, which conditions are for the sole benefit of IAMGOLD and
may be waived by it in whole or in part by notice in writing to Orezone
and New Orezone without prejudice to the rights of IAMGOLD to rely on any
other condition:
|
|
|
(a)
|
there
shall not have been any event, change, occurrence or state of facts that,
either individually or in the aggregate, have or could reasonably be
expected to have a Material Adverse Effect on
Orezone;
|
|
|
(b)
|
the
representations and warranties made by Orezone and New Orezone in this
Agreement and with respect to the Essakane Property that are qualified by
the expression “Material Adverse Change” or “Material Adverse Effect”
shall be true and correct as of the Effective Time as if made on and as of
such date (except to the extent that such representations and warranties
speak as of an earlier date, in which event such representations and
warranties shall be true and correct as of such earlier date), and all
other representations and warranties made by Orezone and New Orezone in
this Agreement that are not so qualified shall be true and correct in all
material respects as of the Effective Date as if made on and as of such
date (except to the extent that such representations and warranties speak
as of an earlier date, in which event such representations and warranties
shall be true and correct as of such earlier date), in either case, except
where any failures or breaches of representations and warranties would
not, either individually or in the aggregate, in the reasonable judgment
of IAMGOLD, have a Material Adverse Effect on, or constitute a Material
Adverse Change in respect of, Orezone or New Orezone, and each of Orezone
and New Orezone shall have provided to IAMGOLD a certificate of two
officers thereof certifying such accuracy or lack of Material Adverse
Effect or Material Adverse Change as at the Effective Time. No
representation or warranty made by Orezone or New Orezone hereunder shall
be deemed not to be true and correct if the facts or circumstances that
make such representation or warranty untrue or incorrect are disclosed or
referred to in the Orezone Disclosure Letter, or provided for or stated to
be exceptions under this Agreement;
|
|
|
(c)
|
Orezone
and New Orezone shall have complied in all material respects with their
respective covenants herein and Orezone and New Orezone shall have
provided to IAMGOLD a certificate of two officers thereof certifying that,
as of the Effective Time, Orezone and New Orezone has so complied with
their respective covenants herein;
|
52
..
|
|
(d)
|
Orezone
Shareholders holding no more than 5% of the outstanding Orezone Shares
shall have exercised their Dissent Rights (and not withdrawn such
exercise) and IAMGOLD shall have received a certificate dated the day
immediately preceding the Effective Time of two officers of Orezone to
such effect;
|
|
|
(e)
|
the
Lock-up Agreements shall not have been
terminated;
|
|
|
(f)
|
the
Kossa Gold Rights Agreement shall have been entered into in form and
substance acceptable to IAMGOLD;
|
|
|
(g)
|
the
Convertible Debenture Waiver Agreement shall have been approved by the TSX
and shall not have been terminated;
|
|
|
(h)
|
the
Private Placement shall have been completed in accordance with the
provisions of Article 9 hereof;
|
|
|
(i)
|
each
of the Bridge Loan Documents shall be valid and subsisting, in full force
and effect and unamended, except as may be amended from time to time to
extend the time for repayment thereunder, no Event of Default (as defined
in the Bridge Facility Agreement) or Default (as defined in the Bridge
Facility Agreement) shall have occurred or be continuing and no other
material default shall exist in respect of any Bridge Loan Document on the
part of any party thereto, the Closing Date (as defined in the Bridge
Facility Agreement) shall have occurred and, prior to the Effective Date,
Orezone shall have obtained all consents, approvals, waivers and
acknowledgements of The Standard Bank of South Africa Limited with respect
to the Bridge Loan Documents reasonably requested by, and all in a form,
and containing provisions, acceptable to
IAMGOLD;
|
|
|
(j)
|
IAMGOLD
shall have obtained title opinions, in form and substance satisfactory to
IAMGOLD, acting reasonably, addressed to IAMGOLD relating to the Essakane
Property and the Kossa Permit and the legal and binding nature of the
Essakane Contracts;
|
|
|
(k)
|
(i)
all consents, waivers, permits, exemptions, orders and approvals of, and
any registrations and filings with, any Governmental Entity and the expiry
of any waiting periods, in connection with, or required to permit, the
completion of the Arrangement, and (ii) all third person and other
consents, waivers, permits, exemptions, orders, approvals, agreements and
amendments, supplements and modifications to agreements, indentures or
arrangements, in each case considered necessary or desirable by IAMGOLD,
acting reasonably, shall have been obtained or received on terms that are
reasonably satisfactory to IAMGOLD;
|
|
|
(l)
|
there
shall have been no action taken under any Applicable Law or by any
Governmental Entity which (i) makes it illegal or otherwise directly or
indirectly restrains, enjoins or prohibits the completion of the
Arrangement, or (ii) results or could reasonably be expected to result in
a judgment, order, decree or assessment of damages, directly or
indirectly, relating to the Arrangement which has, or could have, a
Material Adverse Effect on IAMGOLD, the Essakane Property or on New
Orezone, subsequent to the Effective
Date;
|
53
..
|
|
(m)
|
the
Orezone Board and the directors of each of the Orezone Subsidiaries shall
have adopted all necessary resolutions and all other necessary corporate
action shall have been taken by Orezone and the Orezone Subsidiaries to
permit, or required in connection with, the completion of the Arrangement;
and
|
|
|
(n)
|
subject
to the terms of this Agreement, the Orezone Board shall not have
withdrawn, modified, qualified or changed in a manner adverse to IAMGOLD,
or publicly stated that it intends to withdraw, modify, qualify or change
in a manner adverse to IAMGOLD its recommendation to Orezone Shareholders
that they vote in favour of the Arrangement
Resolution.
|
Co-operation
|
5.4
|
Each
of the Parties hereto will use all reasonable best efforts to satisfy each
of the conditions precedent to be satisfied by it and take, or cause to be
taken, all other actions and do, or cause to be done, all other things
necessary, proper or advisable under Applicable Laws (including, for
greater certainty, the Competition Act), to permit the completion of the
Arrangement and the other transactions contemplated in this Agreement in
accordance with the provisions of this Agreement and to complete and make
effective the Arrangement and the other transactions contemplated in this
Agreement and to co-operate with each other in connection with the
foregoing. IAMGOLD will be responsible for all filing fees
incurred in connection with information or notices filed pursuant to the
Competition Act.
|
Notice
and Cure Provisions
|
5.5
|
Each
Party hereto shall give prompt notice to the other Parties hereto of the
occurrence, or failure to occur, at any time from the date hereof until
the Effective Date, of any event or state of facts which occurrence or
failure would be likely to or
could:
|
|
|
(a)
|
cause
any of the representations or warranties of such Party hereto contained
herein to be untrue or inaccurate in any material respect between the date
hereof and the Effective Date;
|
|
|
(b)
|
result
in the failure to comply with or satisfy any covenant or agreement to be
complied with or satisfied by such Party hereto prior to the Effective
Date; or
|
|
|
(c)
|
result
in the failure to satisfy any of the condition precedent in favour of the
other Parties hereto contained in section 5.1, 5.2 or 5.3 hereof, as the
case may be.
|
Subject
as herein provided, a Party hereto may elect not to complete the Arrangement
pursuant to the conditions contained in section 5.1, 5.2 or 5.3 hereof in favour
of such Party hereto or exercise any termination right arising there from;
provided, however, that:
|
|
(d)
|
promptly
in any event prior to the Effective Date, the Party hereto intending to
rely thereon has delivered a written notice to the other Parties hereto
specifying in reasonable details the breaches of covenants or
untruthfulness or inaccuracy of representations and warranties or other
matters which the Party hereto delivering such notice is asserting as the
basis for the exercise of the termination right, as the case may be;
and
|
54
..
|
|
(e)
|
if
any such notice is delivered, and a Party hereto is proceeding diligently,
at its own expense, to cure such matter, if such matter is susceptible to
being cured, the Party hereto which has delivered such notice may not
terminate this Agreement until the earlier of the Termination Deadline and
the expiration of a period of 14 days from the date of delivery of such
notice, provided that, if such notice has been delivered prior to the date
of the Orezone Meeting, the Orezone Meeting shall be adjourned or
postponed until the expiry of such
period.
|
Merger
of Conditions
|
5.6
|
The conditions set out in sections 5.1, 5.2 or 5.3 hereof shall be conclusively deemed to have been satisfied, fulfilled or waived upon the issue of a certificate of arrangement by the Director for the Arrangement. Orezone and New Orezone hereby acknowledge and agree that they have no right to file the Articles of Arrangement with the Director unless such conditions have been satisfied, fulfilled or waived and IAMGOLD has consented in writing to such filing of the Articles of Arrangement. |
ARTICLE
6
TRANSITION
PERIOD AND INSURANCE
Transition
Period
|
6.1
|
For
a period of six months after the Effective Date (the “Transition Period”),
each of IAMGOLD and New Orezone shall provide the other of them with such
reasonable assistance with respect to the transition of operations at the
Essakane Property, including using reasonable efforts to cause employees,
agents and consultants of the other of them to provide reasonable
assistance at market rates to give effect to the foregoing. At
the Effective Time, IAMGOLD may designate such reasonable number of
employees, agents and consultants of New Orezone to give effect to the
foregoing, and New Orezone shall use reasonable efforts to cause such
persons to provide transitional assistance to IAMGOLD with respect to the
operations at the Essakane Property, but provided such assistance does not
result in undue prejudice or cost to New
Orezone.
|
Insurance
|
6.2
|
IAMGOLD
hereby covenants and agrees that in order to maintain all current rights
to indemnification or exculpation in favour of the current and former
directors and officers of Orezone provided in the articles or by-laws of
Orezone, or any agreement and any directors and officers insurance now
existing in favour of the directors or officers of Orezone, prior to the
Effective Date, Orezone may, at its expense, take all action deemed
appropriate or necessary, prior to the Effective Date for the continuance
(or replacement with substantially equivalent coverage from another
provider) of such rights (either directly or via run-off insurance or
insurance provided by an alternative provider) for a period of not less
than six years after the Effective
Date.
|
55
..
ARTICLE
7
TERMINATION
AND AMENDMENT
Rights
of Termination
|
7.1
|
This
Agreement may be terminated at any time prior to the Effective
Date:
|
|
|
(a)
|
by
the mutual written consent and agreement of Orezone, New Orezone and
IAMGOLD;
|
|
|
(b)
|
by
IAMGOLD if (i) the Orezone Board shall have withdrawn or modified in a
manner adverse to IAMGOLD its approval or recommendation of the
Arrangement (including as contemplated by sections 4.2 and 4.3 hereof) or
(ii) the Orezone Board shall have approved or recommended an Acquisition
Proposal,
|
|
|
(c)
|
by
Orezone or IAMGOLD if the Private Placement has not been completed by
December 31, 2008,
|
|
|
(d)
|
by
Orezone in order to enter into a definitive written agreement with respect
to a Superior Proposal, subject to compliance with section 4.3
hereof;
|
|
|
(e)
|
by
Orezone, New Orezone or IAMGOLD if the Orezone Shareholder Approval shall
not have been obtained at the Orezone
Meeting;
|
|
|
(f)
|
by
IAMGOLD if Orezone shall have failed to hold the Orezone Meeting on or
before March 31, 2009, unless such failure results from (i) delays in
obtaining all required regulatory approvals that are beyond the control of
Orezone, or (ii) an adjournment or postponement of the Orezone Meeting for
not more than ten Business Days in the circumstances described in
subsection 4.3(a) hereof;
|
|
|
(g)
|
by
IAMGOLD if there is a breach by Orezone, New Orezone or any of the Orezone
Subsidiaries or any of their respective directors, officers, agents or any
other representative thereof of any of the covenants provided in paragraph
4.1(i)(vii), section 4.2 or 4.3 hereof, in each case, prior to the
Effective Date; or
|
|
|
(h)
|
if
any of the conditions in sections 5.1, 5.2 or 5.3 hereof for the benefit
of the terminating Party is not satisfied or waived in accordance with
those sections.
|
Termination
Deadline
|
7.2
|
If
the Effective Date does not occur on or before the Termination Deadline,
this Agreement will terminate on notice by a Party hereto to the other
Parties hereto. The right to terminate this Agreement under
this section 7.2 shall not be available to any Party hereto whose action
or failure to act has been a principal cause of or resulted in the failure
of the Effective Date to occur on or before the Termination Deadline and
such action or failure to act constitutes a breach of this
Agreement. Notwithstanding the foregoing, IAMGOLD shall have
the right, in its sole discretion, upon written notice to Orezone and New
Orezone three Business Days prior to the Termination Deadline, to extend
the Termination Deadline for a period of 30 days beyond the Termination
Deadline (the “Revised
Termination Deadline”) and neither Orezone nor New Orezone shall be
entitled to terminate this Agreement under this section 7.2 until the
expiration of such Revised Termination
Deadline.
|
56
..
Termination
Fee
|
7.3
|
If:
|
|
|
(a)
|
IAMGOLD
shall terminate this Agreement pursuant to subsection 7.1(b)
hereof;
|
|
|
(b)
|
Orezone
shall terminate this Agreement pursuant to subsection 7.1(d)
hereof;
|
|
|
(c)
|
either
Orezone or IAMGOLD shall terminate this Agreement pursuant to subsection
7.1(e) hereof in circumstances where the Arrangement Resolution has not
received the required Orezone Shareholders Approval at the Orezone Meeting
and (i) a bona fide Acquisition Proposal has been publicly announced or
made by any Person other than IAMGOLD prior to the Orezone Meeting and not
publicly withdrawn more than
five Business Days prior to the Orezone Meeting, and (ii) Orezone enters
into an agreement with respect to such Acquisition Proposal, or such
Acquisition Proposal is completed, after the date of this Agreement and
prior to the expiration of 12 months following the termination of this
Agreement;
|
|
|
(d)
|
IAMGOLD
shall terminate this Agreement pursuant to subsection 7.1(f) hereof;
or
|
|
|
(e)
|
IAMGOLD
shall terminate this Agreement pursuant to subsection 7.1(g)
hereof;
|
then in
any such case Orezone shall pay or cause to be paid to IAMGOLD a termination fee
(the “Termination Fee”)
of $4,000,000, in immediately available funds to an account designated by
IAMGOLD. In the circumstances set forth in subsection 7.3(a), (b),
(d) or (e) above, the Termination Fee shall be payable at the time of
termination and, in the circumstances set forth in subsection 7.3(c) above, the
Termination Fee shall be payable within three Business Days following the
earlier of the date on which Orezone enters into an agreement in respect of an
Acquisition Proposal or the date on which Orezone consummates an Acquisition
Proposal. Orezone shall not be obligated to make more than one
payment pursuant to this section 7.3. Orezone hereby acknowledges
that the payment amount set out in this section 7.3 is a payment of liquidated
damages which are a genuine pre-estimate of the damages which IAMGOLD will
suffer or incur as a result of the event giving rise to such damages and the
resultant non-completion of the Arrangement and is not a
penalty. Orezone hereby irrevocably waives any right it may have to
raise as a defence that any such liquidated damages are excessive or
punitive.
Amendment
|
7.4
|
This
Agreement and the Plan of Arrangement may, at any time and from time to
time before or after the holding of the Orezone Meeting but not later than
the Effective Time, be amended by mutual written agreement of the Parties
hereto, and any such amendment may, subject to the Interim Order and the
Final Order and Applicable Law, without
limitation:
|
|
|
(a)
|
change
the time for the performance of any of the obligations or acts of any of
the Parties hereto;
|
|
|
(b)
|
waive
any inaccuracies or modify any representations or warranty contained
herein or in any document delivered pursuant
hereto;
|
|
|
(c)
|
waive
compliance with or modify any of the covenants herein contained and waive
or modify the performance of any of the obligations of any of the Parties
hereto; or
|
57
..
|
|
(d)
|
waive
compliance with or modify any mutual conditions precedent herein
contained.
|
Waiver
|
7.5
|
At
any time prior to the Effective Date, any Party hereto
may:
|
|
|
(a)
|
extend
the time for the performance of any of the obligations or other acts of
the other Parties hereto; or
|
|
|
(b)
|
waive
compliance with any of the covenants or agreements of the other Parties
hereto or with any conditions to its own obligations, but in each case
only to the extent such obligations, agreements and conditions are
intended for its benefit.
|
ARTICLE
8
ADDITIONAL
COVENANTS AND INDEMNIFICATION
Other
Business
|
8.1
|
Following
the Effective Date, New Orezone and IAMGOLD shall have the right without
consulting or notifying the other to engage in and receive full benefits
from other and independent business activities, whether or not competitive
or in conflict with the transactions contemplated in this
Agreement. The doctrine of “corporate opportunity” or “business
opportunity” shall not be applied to any other transaction, activity,
venture or operation of New Orezone or IAMGOLD not within the boundaries
or in respect of the Essakane Property and, except as otherwise expressly
provided in other agreements between New Orezone and IAMGOLD, if any,
neither of New Orezone or IAMGOLD shall have any duty to the other with
respect to any opportunity to acquire property outside of the boundaries
of the Essakane Property.
|
Agreements
|
8.2
|
Orezone,
New Orezone and certain Orezone Subsidiaries shall enter into an agreement
with effect no later than the Effective Date pursuant to which IAMGOLD,
directly or indirectly, will have the right to own and operate any and all
deposits or mines located on any property to which the Kossa Permit
relates that has been estimated to have gold revenue representing at least
50% of the total revenue from such deposit or mine, with such agreement to
be in form and substance acceptable to IAMGOLD (the “Kossa Gold Rights
Agreement”).
|
Post-Closing
Adjustments
|
8.3
|
For
a period of two years following the Effective Date, to the extent that
IAMGOLD and New Orezone determine, after the Effective Date, that the
occurrence of any circumstance or event which requires a post-closing
adjustment by the Parties hereto, the Parties hereto will work together to
determine a mutually acceptable tax-efficient manner to effect, to the
greatest extent possible, the necessary transfers and will, in any event,
effect the necessary transfers and make any payments or reimbursements
related thereon, as the case may be within 15 calendar days after the
determination of any such adjustments by cheque or wire transfer to the
Party hereto to whom such payments or reimbursements are payable or
owed.
|
58
..
Indemnification
by New Orezone
|
8.4
|
From
the Effective Time, New Orezone hereby agrees to indemnify and save
harmless IAMGOLD, Orezone and the Orezone Subsidiaries from all Losses
suffered or incurred by IAMGOLD, Orezone or the Orezone Subsidiaries as a
result of or arising directly or indirectly out of or in connection
with:
|
|
|
(a)
|
Indemnified
Liability; or
|
|
|
(b)
|
any
Indemnified Taxes.
|
|
|
If
any claim, proceeding or other matter resulting from the occurrence of any
of the events contemplated by subsection 8.4(a) or (b) above (a “Claim”) is made against
IAMGOLD, Orezone or the Orezone Subsidiaries by a third party for which
IAMGOLD, Orezone or the Orezone Subsidiaries may be entitled to
indemnification, IAMGOLD or Orezone or the Orezone Subsidiaries, as
applicable, shall give notice (the “Indemnity Notice”) to
New Orezone specifying the particulars of such Claim within 60 days after
it receives notification of the Claim. New Orezone shall have the right to
participate in any negotiations or proceedings with respect to such
Claim. IAMGOLD, Orezone or the Orezone Subsidiaries, as
applicable shall not settle or compromise any such Claim without the prior
written consent of New Orezone, unless New Orezone has not, within five
Business Days after the giving of the Indemnity Notice, given notice to
IAMGOLD, Orezone or the Orezone Subsidiaries, as applicable, that it
wishes to dispute such Claim. If New Orezone does give such a
notice, it shall have the right to assume the defence of such Claim and to
defend such Claim in the name of IAMGOLD, Orezone or the Orezone
Subsidiaries, as applicable. IAMGOLD, Orezone and the Orezone
Subsidiaries shall provide to New Orezone all files, books, records and
other information in its possession or control which may be relevant to
the defence of such Claim. IAMGOLD and Orezone shall co-operate
in all reasonable respects in the defence of such Claim. If New
Orezone fails after the giving of such notice, diligently and reasonably
to defend such Claim throughout the period that such Claim exists, its
right to defend the Claim shall terminate and IAMGOLD, Orezone or the
Orezone Subsidiaries may assume the defence of such Claim. In
such event, IAMGOLD, Orezone or the Orezone Subsidiaries may compromise or
settle such Claim without the consent of New Orezone.
In
the event that a Claim relates to Indemnified Taxes where a Governmental
Entity has asserted that Taxes are payable in respect of the Orezone Inc.
Transfer or the settlement of the OEL Debt as described under section 4.6
hereof, Orezone and the Orezone Subsidiaries will use all tax deductions
and tax credits available immediately before the Effective Date to reduce
any possible additional Taxes related to such Claim. In the
event described in the preceding sentence, Orezone and the Orezone
Subsidiaries will require indemnification from New Orezone only where the
balance of the tax deductions or taxes credits that were available
immediately before the Effective Date would not be sufficient to result in
no Taxes being payable in connection with such Claim.
In
the event that the Claim relates to Indemnified Taxes, New Orezone shall
pay to IAMGOLD, Orezone or the Orezone Subsidiaries, as the case may be,
an amount equal to the amount of Indemnified Taxes upon the amount of
Indemnified Taxes being finally determined whether by assessment,
reassessment or agreement with the Governmental Entity or by judicial
determination. If IAMGOLD, Orezone or the Orezone Subsidiaries
shall receive a refund of any Indemnified Taxes in respect of which a
payment has been made pursuant to this section 8.4 the amount of such
refund shall forthwith be paid to New Orezone, together with interest, if
any, paid by the applicable Governmental Entity on such refund (net of any
taxes thereon).
If
the amount of Indemnified Taxes imposed on or suffered by IAMGOLD, Orezone
or the Orezone Subsidiaries as finally determined, is greater than the
amount which was paid by New Orezone to IAMGOLD, Orezone or the Orezone
Subsidiaries or to any Governmental Entity on account of Indemnified
Taxes, New Orezone shall, forthwith following such final determination,
pay the amount of such difference to IAMGOLD, Orezone or the Orezone
Subsidiaries together with any interest which may be payable to a
Governmental Entity in respect of such
amount.
|
59
..
Remedies
|
8.5
|
The
Parties hereto acknowledge and agree that an award of money damages may be
inadequate for any breach of this Agreement by any Party hereto or its
representatives and advisors and that such breach may cause the
non-breaching Party hereto irreparable harm. Accordingly, the
Parties hereto agree that, in the event of any such breach or threatened
breach of this Agreement by one of the Parties hereto, IAMGOLD (if either
Orezone or New Orezone is the breaching Party) or Orezone and New Orezone
(if IAMGOLD is the breaching Party) will be entitled, without the
requirement of posting a bond or other security, to seek equitable relief,
including injunctive relief and specific performance. Subject
to any other provision hereof including, without limitation, section 7.3
hereof, such remedies will not be the exclusive remedies for any breach of
this Agreement but will be in addition to all other remedies available
hereunder or at law or in equity to each of the Parties
hereto.
|
ARTICLE
9
PRIVATE
PLACEMENT
Subscription
|
9.1
|
IAMGOLD
hereby irrevocably agrees to subscribe for and purchase 71,428,571 Orezone
Shares (the “Subscription
Shares”) from Orezone and Orezone hereby agrees to sell and issue
to IAMGOLD the Subscription Shares (representing a 16.6% interest in
Orezone) at a subscription price of $0.28 per share (for an aggregate
subscription price of $19,999,999.88 for the Subscription Shares (the
“Subscription
Price”) on the terms and conditions set out in this Article 9 (the
“Private
Placement”). Completion of the Private Placement shall
not be conditional upon the completion of the
Arrangement.
|
Representations,
Warranties, Covenants and Acknowledgements of IAMGOLD
|
9.2
|
In
connection with the subscription for the Subscription Shares under this
Article 9, IAMGOLD hereby represents and warrants to Orezone on the date
hereof and on the Subscription Closing Date, hereby covenants and agrees
with Orezone and acknowledges that Orezone is relying thereon, as the case
may be, that:
|
|
|
(a)
|
IAMGOLD
is subscribing for the Subscription Shares for its own account and not for
the account or benefit of any other Person, for investment purposes only,
and not with a view to resell or otherwise distribute the Subscription
Shares in violation of Applicable Securities Laws and the subscription
hereunder constitutes a legal and binding obligation of
IAMGOLD;
|
|
|
(b)
|
neither
IAMGOLD nor any of its affiliates is the beneficial owner of, or exercises
control or direction over, any Orezone Shares or Orezone Convertible
Securities, in each case excluding the Subscription Shares to be purchased
by IAMGOLD;
|
60
..
|
|
(c)
|
IAMGOLD
has been advised to consult its own legal advisors with respect to trading
in the Subscription Shares when issued and with respect to the resale
restrictions imposed by Applicable Securities Laws and hereby acknowledges
that no representation or warranty has been made respecting the applicable
hold period imposed by Applicable Securities Laws or other resale
restrictions applicable to the Subscription Shares which restrict the
ability of IAMGOLD to resell the Subscription
Shares, that IAMGOLD is solely responsible to determine what these
restrictions are and that IAMGOLD is solely responsible (and Orezone is in
no way responsible) for compliance with applicable resale
restrictions;
|
|
|
(d)
|
IAMGOLD
is not a “U.S. person” (as defined in Regulation S under the 1933 Act),
and is not purchasing the Subscription Shares on behalf of, or for the
account or benefit of, a Person in the United States or a U.S.
person;
|
|
|
(e)
|
the
applicable representative of IAMGOLD was outside the United States at the
time it received the offer to purchase the Subscription Shares and this
Agreement was executed by IAMGOLD outside the United
States;
|
|
|
(f)
|
IAMGOLD
will not offer, sell or otherwise dispose of the Subscription Shares in
the United States or to a U.S. person unless such offer, sale or
disposition is made in accordance with an exemption from the registration
requirements of the 1933 Act and in compliance with the securities laws of
all applicable states of the United
States;
|
|
|
(g)
|
IAMGOLD
hereby acknowledges and consents to the placement of the following
Canadian legend on the certificate evidencing the Subscription Shares
issued to IAMGOLD:
|
“UNLESS
PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT
TRADE THE SECURITY BEFORE <INSERT THE DATE THAT IS FOUR
MONTHS AND A DAY AFTER THE DISTRIBUTION DATE.>
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON THE TORONTO STOCK
EXCHANGE (“TSX”); HOWEVER, THE SAID SECURITIES CANNOT BE TRADED THROUGH THE
FACILITIES OF THE TSX SINCE THEY ARE NOT FREELY TRANSFERABLE, AND CONSEQUENTLY
ANY CERTIFICATE REPRESENTING SUCH SECURITIES IS NOT “GOOD DELIVERY” IN
SETTLEMENT OF TRANSACTIONS ON THE TSX.”;
|
|
(h)
|
IAMGOLD
has not engaged, consented to or authorized any broker, finder or
intermediary to act on its behalf, directly or indirectly, as a broker,
finder or intermediary in connection with the subscription for the
Subscription Shares and if any Person establishes a claim that any fee or
other compensation is payable in connection with this subscription for the
Subscription Shares, IAMGOLD hereby covenants and agrees to indemnify and
hold harmless Orezone with respect thereto and with respect to all costs
reasonably incurred in the defence
thereof;
|
61
..
|
|
(i)
|
the
subscription by IAMGOLD under this Article 9, the performance and
compliance with this Article 9 and the completion of the transaction
described in this Article 9 by IAMGOLD will not result in any material
breach of, or be in conflict with or constitute a material default under,
or create a state of facts which, after notice or lapse of time, or both,
would constitute a material default under any provision
of the articles, by-laws or resolutions of IAMGOLD, Applicable Securities
Laws or any other law applicable to IAMGOLD, any agreement to which
IAMGOLD is a party or any judgment, decree, order, statute, rule or
regulation applicable to
IAMGOLD;
|
|
|
(j)
|
if
required by Applicable Securities Laws or Orezone, IAMGOLD will execute,
deliver and file or assist Orezone in filing such reports, undertakings
and other documents with respect to the issue and sale of the Subscription
Shares as may be required by Securities
Authorities;
|
|
|
(k)
|
IAMGOLD
has not received or been provided with a prospectus or an offering
memorandum, within the meaning of Applicable Securities Laws, or any sales
or advertising literature in connection with the subscription for the
Subscription Shares;
|
|
|
(l)
|
the
subscription for the Subscription Shares has not been made through or as a
result of, and the distribution thereof is not being accompanied by, any
advertisement, including without limitation, printed public media, radio,
televisions or telecommunications, including electronic display, or as
part of a general solicitation;
|
|
|
(m)
|
there
are risks associated with the purchase of and investment in the
Subscription Shares and IAMGOLD is knowledgeable and/or experienced in
business and financial matters and is capable of evaluating the merits and
risks of an investment in the Subscription Shares and fully understands
the restrictions on the resale of the Subscription Shares and is capable
of bearing the economic risk of the
investment;
|
|
|
(n)
|
the
funds representing the Subscription Price which will be advanced by
IAMGOLD to Orezone under this Article 9, as applicable, will not represent
proceeds of crime for the purposes of the Proceeds of Crime (Money
Laundering) and Terrorist Financing Act (Canada) (the “PCMLTFA”) and IAMGOLD
hereby acknowledges that Orezone may in the future be required by
Applicable Securities Law to disclose the name of IAMGOLD and other
information relating to this subscription and that subscription of IAMGOLD
under this Article 9, on a confidential basis, pursuant to the PCMLTFA
and, to the best of the knowledge of IAMGOLD (a) none of the subscription
funds to be provided by IAMGOLD (i) have been or will be derived from or
related to any activity that is deemed criminal under the laws of Canada,
the United States of America or any other jurisdiction, or (ii) are being
tendered on behalf of a Person who has not been identified to IAMGOLD, and
(b) IAMGOLD shall promptly notify Orezone if IAMGOLD discovers that any of
such statements ceases to be true, and to provide Orezone with appropriate
information in connection therewith;
and
|
|
|
(o)
|
IAMGOLD
hereby acknowledges that the subscription under this Article 9, require
IAMGOLD to provide certain personal information to Orezone, that such
information is being collected by Orezone for the purposes of completing
the sale and issue of the Subscription Shares, which includes, without
limitation, determining the eligibility of IAMGOLD to purchase the
Subscription Shares under Applicable Securities Laws, preparing and
registering a certificate representing the Subscription Shares to be
issued to IAMGOLD and completing filings required by any stock exchange or
securities regulatory authority, that such personal
information
|
62
..
|
|
may
be disclosed by Orezone to (a) Securities Authorities, (b) the Canada
Revenue Agency, and (c) any of the other Persons involved in the issue and
sale of the Subscription Shares, including legal counsel, and may be
included in record books in connection with the subscription and that by
executing this Agreement IAMGOLD is deemed to be consenting to the
foregoing collection, use and disclose of such personal
information.
|
Representations
and Warranties of Orezone
|
9.3
|
In
connection with the subscription for the Subscription Shares under this
Article 9 by IAMGOLD, Orezone hereby represents and warrants to IAMGOLD on
the date hereof and on the Subscription Closing Date, hereby covenants and
agrees with IAMGOLD and hereby acknowledges that IAMGOLD is relying upon
such representations and warranties
that:
|
|
|
(a)
|
the
representations and warranties of Orezone in section 3.2 of this Agreement
are true and correct;
|
|
|
(b)
|
the
Subscription Shares subscribed for herein will be issued as outstanding
Orezone Shares registered in the name of IAMGOLD (or as it may direct in
writing) on the Subscription Closing Date and, upon receipt of the
aggregate Subscription Price by Orezone, such Subscription Shares will be
fully paid and non-assessable;
|
|
|
(c)
|
the
issue of the Subscription Shares by Orezone hereunder does not and will
not contravene, conflict with or result in a violation of the articles,
by-laws or resolutions of Orezone or the terms of any agreement or
instrument to which Orezone is a party or result in the triggering of any
registration rights, rights to acquire Orezone Shares or consent
obligations on Orezone pursuant to any agreement or instrument to which
Orezone is a party;
|
|
|
(d)
|
none
of Orezone, its affiliates (as defined under the 0000 Xxx) or any person
acting on its or their behalf has engaged, or will engage, in any
“directed selling efforts” (as such term is defined in Regulation S under
the 0000 Xxx) in connection with the offer and sale of the Subscription
Shares;
|
|
|
(e)
|
Orezone,
its affiliates and any Person acting on its or their behalf have complied,
and will comply, with the requirements for an “offshore transaction” (as
such term is defined in Regulation S under the 0000 Xxx) under Rule 903 of
Regulation S under the 1933 Act in connection with the offer and sale of
the Subscription Shares; and
|
|
|
(f)
|
no
order ceasing or suspending trading in securities of Orezone nor
prohibiting the sale of any such securities has been issued and is
outstanding against Orezone or its directors, officers or
promoters.
|
Survival
of Representations
|
9.4
|
The
representations and warranties of IAMGOLD and Orezone contained in
sections 9.2 and 9.3 hereof respectively shall survive the closing of the
transaction contemplated in this Article 9 for a period ending on the
earlier of (i) the Effective Time and (ii) one year after the Subscription
Closing Date.
|
63
..
Covenants
of Orezone
|
9.5
|
In
connection with the issue of the Subscription Shares hereunder, and until
the Effective Time, Orezone hereby covenants and agrees with IAMGOLD
that:
|
|
|
(a)
|
Orezone
will file all such reports, statements or other documents as may be
necessary or desirable, and otherwise use best efforts to maintain in good
standing the status of Orezone under Applicable Securities Laws as a
“reporting issuer” and the listing of the Orezone Shares on the TSX and
Alternext;
|
|
|
(b)
|
Orezone
has obtained, or by the Subscription Closing Date will have obtained, the
approval of the TSX and Alternext for the listing and trading of the
Subscription Shares on such exchanges effective from the Subscription
Closing Date; and
|
|
|
(c)
|
on
the Subscription Closing Date and before the time of closing of the
purchase of the Subscription Shares, Orezone shall
deliver:
|
|
|
(i)
|
a
certificate of two officers of Orezone confirming
that:
|
|
|
A.
|
the representations and warranties of Orezone set forth in section 9.3 hereof are true and accurate in all material respects; and |
|
|
B.
|
Orezone has performed all obligations and covenants under this Article 9 in all material respects; and |
|
|
(ii)
|
a
legal opinion from Canadian counsel to Orezone in form acceptable to
IAMGOLD, acting reasonably, in respect of the issue of the Subscription
Shares.
|
Conditions
to Closing the Private Placement
|
9.6
|
The
obligation of IAMGOLD to complete the Private Placement is subject to the
satisfaction of each of the following conditions on or before the
Subscription Closing Date, which conditions are for the sole benefit of
IAMGOLD and may be waived by it in whole or in part by notice in writing
to Orezone and New Orezone without prejudice to the rights of IAMGOLD to
rely on any other condition:
|
|
|
(a)
|
there
shall be no prohibition at law in Canada against the completion of the
issue of the Subscription Shares;
|
|
|
(b)
|
the
conditional approval of the TSX and the approval of the Alternext for the
additional listing of the Subscription Shares shall have been obtained by
Orezone;
|
|
|
(c)
|
(i)
all consents, waivers, permits, exemptions, orders and approvals of, and
any registrations and filings with, any Governmental Entity and the expiry
of any waiting periods, in connection with, or required to permit, the
completion of the Private Placement, and (ii) all third person and other
consents, waivers, permits, exemptions, orders, approvals, agreements and
amendments, supplements and modifications to agreements, indentures or
arrangements, in each case considered necessary or desirable by IAMGOLD,
acting reasonably, shall have been obtained or received on terms that are
reasonably satisfactory to
IAMGOLD;
|
64
..
|
|
(d)
|
the
Convertible Debenture Waiver Agreement shall have been approved by the
TSX; and
|
|
|
(e)
|
the
Lock-up Agreements shall not have been
terminated.
|
Payment
of Subscription Price
|
9.7
|
IAMGOLD
shall cause to be wire transferred to the bank account of Orezone in
Canada the Subscription Price for the Subscription Shares on the
Subscription Closing Date against receipt by IAMGOLD of a certificate
representing the Subscription
Shares.
|
Use
of Proceeds
|
9.8
|
A
maximum of $10,000,000 of the proceeds from the Private Placement shall be
used by Orezone to capitalize New
Orezone.
|
ARTICLE
10
GENERAL
Notice
|
10.1
|
All
notices, requests, demands and other communications hereunder shall be
deemed to have been given and made if in writing and if served by personal
delivery upon the Party hereto for whom it is intended, or if sent by
facsimile transmission, upon receipt of confirmation that such
transmission has been received, to the Person at the address set forth
below, or such other address as may be designated in writing hereafter, in
the same manner, by such Person.
|
To
IAMGOLD:
000 Xxx
Xxxxxx, Xxxxx 0000
XX Xxx
000
Xxxxxxx,
XX X0X 0X0
Attention: President
and Chief Executive Officer
Telephone: (000)
000-0000
Fax: (000)
000-0000
with a
copy to (which copy shall not constitute notice):
Fraser
Xxxxxx Casgrain LLP
1 First
Canadian Place
000 Xxxx
Xxxxxx Xxxx
Xxxxxxx,
XX X0X 0X0
Attention: Xxxxx
Xxxxx
Telephone: (000)
000-0000
Fax:
(000) 000-0000
65
..
To
Orezone (prior to the Effective Date):
000 - 000
Xxxxxx Xxx
Xxxxxx,
XX X0X 0X0
Attention: Chief
Executive Officer
Telephone: (000)
000-0000
Fax:
(000) 000-0000
with a
copy to (which copy shall not constitute notice):
Stikeman
Elliott LLP
0000
Xxxxxxxx Xxxxx Xxxx
000 Xxx
Xxxxxx
Xxxxxxx XX X0X
0X0
Attention: Xxxxxxx
Xxxxxx
Telephone: (000)
000-0000
Fax:
(000) 000-0000
To New
Orezone:
000 - 000
Xxxxxx Xxx
Xxxxxx,
XX X0X 0X0
Attention:
Chief Executive Officer
Telephone: (000)
000-0000
Fax:
(000) 000-0000
with a
copy to (which copy shall not constitute notice):
Stikeman
Elliott LLP
0000
Xxxxxxxx Xxxxx Xxxx
000 Xxx
Xxxxxx
Xxxxxxx XX X0X
0X0
Attention: Xxxxxxx
Xxxxxx
Telephone: (000)
000-0000
Fax:
(000) 000-0000
Any such
notice, direction or other instrument, whether personally delivered or
transmitted by facsimile transmission, shall be deemed to have been given and
received at the time and on the date on which it was personally delivered to or
received in the office of the addressee, as the case may be, if personally
delivered or transmitted prior to 5:00 p.m. (at the place of the addressee) on a
Business Day or, if personally delivered or transmitted later than that time, at
9:00 a.m. (at the place of the addressee) on the subsequent Business
Day. Any Party hereto may change its address for service from time to
time by notice given to the other Parties hereto in accordance with the
foregoing. Any notice, direction or other instrument personally
delivered or transmitted under this Agreement shall be signed by one or more
officers of the Party delivering it.
66
..
Binding
Effect
|
10.2
|
This
Agreement shall be binding upon and enure to the benefit of the Parties
hereto and their respective
successors.
|
No
Assignment
|
10.3
|
This
Agreement may not be assigned by any Party hereto without the prior
written consent of the other Parties
hereto.
|
Public
Statements
|
10.4
|
No
Party hereto shall make any announcement regarding the Arrangement, the
Private Placement or the other transactions contemplated herein which has
not been previously reviewed and commented on by the other Parties hereto,
except that any Party hereto may issue a press release or make a filing
with a regulatory authority if counsel for such Party hereto advises that
such press release or filing is necessary in order to comply with
Applicable Laws or the rules and policies of any stock exchange, in which
case such Party hereto will first make a reasonable effort to obtain the
approval of the other Parties
hereto.
|
Entire
Agreement
|
10.5
|
This
Agreement together with the Confidentiality Agreement constitutes the
entire agreement between the Parties hereto and supersedes all other prior
agreements, negotiations, discussions, understandings and undertakings,
both written and oral, between the Parties hereto relating to the subject
matter hereof.
|
Time
of Essence
|
10.6
|
Time
shall be of the essence of this
Agreement.
|
Severability
|
10.7
|
If
any provision of this Agreement, or the application thereof, is determined
for any reason and to any extent to be invalid or unenforceable, the
remainder of this Agreement and the application of such provision to other
Persons and circumstances shall remain in full force and effect, provided
that the legal or economic substance of the transactions contemplated
hereby is not thereby affected in a manner adverse to any of the Parties
hereto.
|
Counterpart
Executions and Facsimile Transmissions
|
10.8
|
This
Agreement may be executed in counterparts, each of which when delivered
(whether in originally executed form or by facsimile transmission) shall
be deemed to be an original and all of which together shall constitute one
and the same document.
|
Fees
and Expenses
|
10.9
|
Subject
to section 7.3 hereof, each Party hereto shall be responsible for its own
fees and expenses relating to the Arrangement, the Private Placement and
the other transactions contemplated herein including, without limitation,
regulatory fees and fees of professional advisers, including legal counsel
and auditors.
|
67
..
Investigation
|
10.10
|
Any
investigation by a Party hereto and its advisers shall not mitigate,
diminish or affect the representations and warranties of the other Parties
hereto contained in this Agreement or any document or certificate given
pursuant thereto.
|
Further
Assurances
|
10.11
|
The
Parties hereto will do all such further acts and things and will execute
such further documents and agreements as may be necessary to give effect
to the terms and conditions of this
Agreement.
|
Waiver
|
10.12
|
Any
waiver or release of any of the provisions of this Agreement, to be
effective, must be in writing executed by the Party hereto granting such
waiver or release.
|
Governing
Law
|
10.13
|
68
..
IN WITNESS WHEREOF the Parties
hereto have executed this Agreement as of the date first above
written.
|
IAMGOLD
CORPORATION
|
|
|
Per:
|
(signed)
Xxxxxx Xxxxxx
|
|
Xxxxxx
Xxxxxx
|
|
|
President
and Chief Executive Officer
|
|
|
Per:
|
(signed)
Xxxxx Xxxxxxxx
|
|
Xxxx
Xxxxxxxx
|
|
|
Senior
Vice President, Corporate Affairs
|
|
|
|
|
|
Per:
|
(signed)
Xxxxxx X. Little
|
|
Xxxxxx
X. Little
|
|
|
Chief
Executive Officer
|
|
|
7086130
CANADA INC.
|
|
|
Per:
|
(signed)
Xxxxxx X. Little
|
|
Xxxxxx
X. Little
|
|
|
Chief
Executive Officer
|
|
69
..
SCHEDULE
A
PLAN
OF ARRANGEMENT UNDER SECTION 192
OF
THE CANADA BUSINESS
CORPORATIONS ACT
|
1.
|
INTERPRETATION
|
|
|
(a)
|
Definitions: In
this Plan of Arrangement, unless the context otherwise requires, the
following words and terms shall have the meaning hereinafter set
out:
|
|
|
(i)
|
“Amalgamation” means the
amalgamation of IAMGOLD Subco and Orezone under the CBCA on the terms
prescribed under this Plan of
Arrangement;
|
|
|
(ii)
|
“Arrangement” means the
arrangement under the provisions of section 192 of the CBCA, on the terms
and conditions set forth in this Plan of Arrangement, subject to any
amendment or supplement hereto made in accordance with the Arrangement
Agreement and the provisions hereof or made at the direction of the Court
in the Final Order;
|
|
|
(iii)
|
“Arrangement Agreement”
means the Arrangement Agreement dated December 10, 2008 to which this Plan
of Arrangement is attached as schedule
A;
|
|
|
(iv)
|
“Arrangement Resolution”
means the Special Resolution of Orezone Shareholders approving the
Arrangement;
|
|
|
(v)
|
“Business Day” means a
day which is not a Saturday, Sunday or a civic or statutory holiday in
Toronto, Ontario;
|
|
|
(vi)
|
“CBCA” means the Canada Business Corporations
Act, as amended;
|
|
|
(vii)
|
“Class A Shares” means
the class A common shares of Orezone which are to be created in accordance
with this Plan of Arrangement and which shall have attached thereto the
right to vote at all meetings of Orezone Shareholders, the right to
dividends as and when declared by the directors of Orezone, subject to the
preferential right of the holders of Class B Shares to dividends and the
right to participate in the remaining assets of Orezone upon a winding up
of Orezone;
|
|
|
(viii)
|
“Class B Shares” means
the Orezone Shares following their re-designation as Class B Shares in
accordance with this Plan of Arrangement, such Class B Shares to bear the
same rights and privileges as the Orezone Shares provided that such Class
B Shares shall be entitled to dividends as and when declared by the
directors of Orezone in preference to dividends to be paid on the Class A
Shares;
|
|
|
(ix)
|
“Closing Date” means the
Business Day that is three Business Days after the granting of the Final
Order or such other date as the parties to the Arrangement Agreement may
agree;
|
|
|
(x)
|
“Convertible Debenture Waiver
Agreement” means the agreement among IAMGOLD, Orezone and the
Debentureholder dated December 10, 2008 relating to the Orezone
Convertible Debenture;
|
70
..
|
|
(xi)
|
“Court” means the Ontario
Superior Court of Justice (Commercial
List);
|
|
|
(xii)
|
“Debentureholder” means
MinQuest Fund I, L.P.;
|
|
|
(xiii)
|
“Depositary” means any
trust company, bank or financial institution agree to in writing between
IAMGOLD and Orezone for the purpose of, among other things, exchanging
certificates representing IAMGOLD Shares and New Orezone Shares in
connection with the Arrangement;
|
|
|
(xiv)
|
“Director” means the
Director appointed pursuant to section 260 of the
CBCA;
|
|
|
(xv)
|
“Dissent Procedures”
means the procedures set forth in section 190 of the CBCA and the Interim
Order required to be taken by an Orezone Shareholder to exercise the right
of dissent in respect of Orezone Shares in connection with the
Arrangement;
|
|
|
(xvi)
|
“Dissent Rights” means
the rights of dissent of Orezone Shareholders in respect of the
Arrangement Resolution as defined in section 4
hereof;
|
|
|
(xvii)
|
“Dissenting Orezone
Shareholder” means an Orezone Shareholder who has duly exercised a
Dissent Right in strict compliance with the Dissent
Procedures;
|
|
|
(xviii)
|
“Effective Date” means
the date shown in the certificate of arrangement issued in accordance with
section 262 of the CBCA in respect of the Arrangement, being the Closing
Date, or such other date as may be agreed to by the parties to the
Arrangement Agreement;
|
|
|
(xix)
|
“Effective Time” means
the time when the Arrangement will be deemed to have been completed, which
shall be 12:01 a.m., Toronto time, on the Effective
Date;
|
|
|
(xx)
|
“Encumbrance” means any
mortgage, hypothec, 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;
|
|
|
(xxi)
|
“Exchange Ratio” means
0.08;
|
|
|
(xxii)
|
“Final Order” means the
final order of the Court approving the Arrangement, as such order may be
amended by the Court (with the consent of IAMGOLD and Orezone) at any time
prior to the Effective Date or, if appealed, then unless such appeal is
withdrawn or denied, as affirmed or as amended on
appeal;
|
|
|
(xxiii)
|
“IAMGOLD” means IAMGOLD
Corporation, a corporation existing under the laws of
Canada;
|
|
|
(xxiv)
|
“IAMGOLD Amalco” means
the corporation formed as a result of the amalgamation of Orezone and
IAMGOLD Subco;
|
|
|
(xxv)
|
“IAMGOLD Replacement
Options” has the meaning given to such term in paragraph 3(a)(vii)
hereof;
|
71
..
|
|
(xxvi)
|
“IAMGOLD Shares” means
the common shares which IAMGOLD is authorized to issue as presently
constituted;
|
|
|
(xxvii)
|
“IAMGOLD Subco” means
l, a
wholly-owned subsidiary of IAMGOLD existing under the laws of
Canada;
|
|
|
(xxviii)
|
“Interim Order” means the
interim order of the Court providing for, among other things, the calling
and holding of the Orezone Meeting, as such order may be amended,
supplemented or varied by the
Court;
|
|
|
(xxix)
|
“Letter of Transmittal”
means the letter of transmittal to be delivered by Orezone to the Orezone
Shareholders providing for the delivery of the Orezone Shares to the
Depositary;
|
|
|
(xxx)
|
“New Orezone” means
7086130 Canada Inc., a corporation existing under the laws of
Canada;
|
|
|
(xxxi)
|
“New Orezone Shares”
means the common shares which New Orezone is authorized to issue as
presently constituted;
|
|
|
(xxxii)
|
“Orezone” means Orezone
Resources Inc., a corporation existing under the laws of
Canada;
|
|
|
(xxxiii)
|
“Orezone Convertible
Debenture” means the 6% convertible debenture dated July 1, 2008
and maturing July 1, 2011 in the principal amount of $10,000,000 issued by
Orezone to the Debentureholder, as changed by the Convertible Debenture
Waiver Agreement;
|
|
|
(xxxiv)
|
“Orezone Meeting” means
the special meeting of Orezone Shareholders, including any adjournment or
adjournments or postponement or postponements thereof, to be held for the
purpose of obtaining approval by Orezone Shareholders of the Arrangement
Resolution;
|
|
|
(xxxv)
|
“Orezone 1997 Options”
means the outstanding options to acquire Orezone Shares and which have
been issued pursuant to the stock option plan of Orezone as approved by
the directors of Orezone and by the Orezone Shareholders in
1997;
|
|
|
(xxxvi)
|
“Orezone 2008 Options”
means the outstanding options to acquire Orezone Shares and which have
been issued pursuant to the stock option plan of Orezone as approved by
the directors of Orezone on April 24, 2008 and by the Orezone Shareholders
on May 29, 2008;
|
|
|
(xxxvii)
|
“Orezone Shareholder”
means a Person who is a registered holder of Orezone Shares as shown on
the share register of Orezone and for the purposes of the Orezone Meeting,
is a registered holder of Orezone Shares as of the record date therefor,
and for the purposes of the Arrangement, is a registered holder of Orezone
Shares immediately prior to the Effective
Time;
|
|
|
(xxxviii)
|
“Orezone Shares” means
the common shares which Orezone is authorized to issue as presently
constituted and following the re-designation of such common shares to
Class B Shares in accordance with this Plan of Arrangement, means the
Class B Shares which Orezone will be authorized to issue and,
following the exchange of the Class B Shares for Class A Shares and New
Orezone Shares in accordance with this Plan of Arrangement, means the
Class A Shares which Orezone is authorized to
issue;
|
72
..
|
|
(xxxix)
|
“Orezone Warrants” means
the warrants to purchase up to 2,000,000 Orezone Shares issued by Orezone
to Standard Bank plc under the warrant agreement dated August 29,
2008;
|
|
|
(xl)
|
“Person” means any
individual, corporation, firm, partnership (including, without limitation,
a limited partnership), sole proprietorship, syndicate, joint venture,
trustee, trust, any unincorporated organization or association, any
government or instrumentality thereof and any
tribunal;
|
|
|
(xli)
|
“Special Resolution” has
the meaning ascribed to such term in the CBCA;
and
|
|
|
(xlii)
|
“Tax Act” means the Income Tax Act (Canada)
and the regulations thereunder as amended from time to
time.
|
|
|
(b)
|
Interpretation Not
Affected by Headings. The headings contained in this
Plan of Arrangement are for convenience reference only and shall not
affect in any way the meaning or interpretation of this Plan of
Arrangement. The terms “this Plan of Arrangement”,
“hereof’, “herein”, “hereto”, “hereunder” and similar
expressions refer to this Plan of Arrangement and not to any particular
article, section, subsection, paragraph, subparagraph, clause or
sub-clause hereof and include any agreement or instrument supplementary or
ancillary hereto.
|
|
|
(c)
|
Date for any
Action. If the date on which any action is required to
be taken hereunder is not a Business Day, such action shall be required to
be taken on the next succeeding day which is a Business
Day.
|
|
|
(d)
|
Number and
Gender. In this Plan of Arrangement, unless the context
otherwise requires, words importing the singular include the plural and
vice versa and words importing gender include all genders and
neuter.
|
|
|
(e)
|
References to
Persons. A reference to a Person includes any successor
to that Person. A reference to any statute includes all regulations made
pursuant to such statute and the provisions of any statute or regulation
which amends, supplements or supersedes any such statute or
regulation.
|
|
|
(f)
|
Currency.
Unless otherwise stated in this Plan of Arrangement, all references
herein to amounts of money are expressed in lawful money of
Canada.
|
This Plan
of Arrangement is made pursuant to and subject to the provisions of the
Arrangement Agreement. At the Effective Time, the Arrangement shall be binding
upon IAMGOLD, IAMGOLD Subco, IAMGOLD Amalco, Orezone, New Orezone and the
Orezone Shareholders.
73
..
|
3.
|
THE
ARRANGEMENT
|
|
|
(a)
|
The
Arrangement. At the Effective Time, the following shall
occur and shall be deemed to occur in the following order without any
further act or formality:
|
|
|
(i)
|
The
holders of the Orezone 2008 Options, the Orezone Convertible Debenture and
the Orezone Warrants shall not be entitled to receive Orezone Shares upon
the exercise thereof.
|
|
|
(ii)
|
Each
Orezone 2008 Option outstanding immediately prior to the Effective Time,
whether vested or not, shall remain outstanding in accordance with its
terms which provide that such Orezone 2008 Option may be exercised by the
holder thereof at any time up to and including (but not after) the date
that is 30 days after the Effective
Time.
|
|
|
(iii)
|
The
Orezone Warrants, if outstanding immediately prior to the Effective Time,
will remain outstanding in accordance with their
terms.
|
|
|
(iv)
|
The
Orezone Convertible Debenture, if outstanding immediately prior to the
Effective Time, will be terminated and the Debentureholder will receive
from IAMGOLD as to 50 per cent of the principal and interest owing
thereunder cash and, as to the remaining 50 per cent the principal and
interest owing thereunder, IAMGOLD Shares on the terms and conditions set
out in the Convertible Debenture Waiver
Agreement.
|
|
|
(v)
|
Orezone
shall undertake a reorganization of capital within the meaning of section
86 of the Tax Act as follows, and in the following
order:
|
|
|
A.
|
The
authorized capital of Orezone will be amended
by:
|
|
|
I.
|
re-designating
the Orezone Shares as Class B Shares and each certificate representing
such an outstanding Orezone Share shall, as and from the time such
re-designation is effective, represent a Class B Share;
and
|
|
|
II.
|
the
creation of an unlimited number of Class A
Shares;
|
and the
articles of Orezone shall be deemed to be amended accordingly
|
|
B.
|
Each
issued Class B Share, other than those held by Dissenting Orezone
Shareholders, will be exchanged with Orezone for one Class A Share and ●
New Orezone Shares.
|
|
|
C.
|
Each
issued Class B Share held by a Dissenting Orezone Shareholder (for greater
certainty, being an Orezone Shareholder who has complied with the Dissent
Rights and is ultimately entitled to be paid for its Class B Shares) will
be acquired by IAMGOLD in consideration for a debt claim against IAMGOLD
to be paid fair value of such Class B Shares pursuant to the Dissent
Procedures.
|
74
..
|
|
D.
|
The
stated capital of Orezone for the outstanding Class A Shares will be an
amount equal to the stated capital of Orezone for the Class B Shares, less
the fair market value of the New Orezone Shares distributed to Orezone
Shareholders, other than Dissenting Orezone Shareholders pursuant to
section 4 hereof and the paid-up capital of the Class A Shares of Orezone
will be reduced accordingly.
|
|
|
E.
|
The
Class B Shares (including the Class B Shares held by Dissenting Orezone
Shareholders and acquired by IAMGOLD pursuant to paragraph 3(a)(vi)(D)
hereof) will be cancelled.
|
|
|
(vi)
|
Each
outstanding Class A Share will be transferred to IAMGOLD in consideration
for IAMGOLD Shares on the basis of the Exchange
Ratio.
|
|
|
(vii)
|
The
holders of the Orezone 1997 Options shall not be entitled to receive
Orezone Shares upon the exercise thereof and each Orezone 1997 Option
outstanding immediately prior to the Effective Time, whether vested or
not, shall be exchanged for a fully-vested option granted by IAMGOLD (each
an “IAMGOLD Replacement
Option” and collectively the “IAMGOLD Replacement
Options”) to acquire that number of IAMGOLD Shares equal to the
product of (A) the number of Orezone Shares subject to the Orezone 1997
Option immediately before the Effective Time and (B) the Exchange Ratio,
and the exercise price per IAMGOLD Share subject to any IAMGOLD
Replacement Option shall be equal to the quotient of (A) the exercise
price per Orezone Share subject to such Orezone 1997 Option immediately
before the Effective Time divided by (B) the Exchange
Ratio. Except as set out above, the terms of each IAMGOLD
Replacement Option shall be the same as the Orezone 1997 Option exchanged
therefor.
|
|
|
(viii)
|
With
respect to each Class A Share:
|
|
|
A.
|
each
such Orezone Shareholder, other than IAMGOLD, shall cease to be the holder
of such Class A Share on the Effective Date and such holder’s name shall
be removed from the share register of Orezone as at the Effective Time;
and
|
|
|
B.
|
IAMGOLD
shall be deemed to be the transferee of such Class A Share (free and clear
of any Encumbrance) on the Effective Date and shall be entered in the
share register of Orezone as the holder thereof as at the Effective
Time.
|
|
|
(ix)
|
Orezone
and IAMGOLD Subco shall be amalgamated to form IAMGOLD Amalco and continue
as one corporation under the CBCA on the terms prescribed
in this Plan of Arrangement and, as a result, the property and liabilities
of Orezone and IAMGOLD Subco will become the property and liabilities of
IAMGOLD Amalco. Orezone and IAMGOLD Subco will merge with the
same effect as if they were amalgamated under section 184(2) of the
CBCA.
|
|
|
(x)
|
Orezone
and IAMGOLD Subco will continue as one
company;
|
75
..
|
|
(xi)
|
Following
the amalgamation of Orezone and IAMGOLD Subco described in paragraph
3(a)(ix) hereof and from and after such
time:
|
|
|
A.
|
IAMGOLD
Amalco will own and hold all property of Orezone and IAMGOLD Subco, and,
shall continue to be liable for the obligations of Orezone and IAMGOLD
Subco and will be liable for the obligations of Orezone and IAMGOLD Subco,
including civil, criminal and quasi-criminal liabilities and all
contracts, disabilities, options, warrants and debts of each of Orezone
and IAMGOLD Subco;
|
|
|
B.
|
all
rights, contracts, permits and interests of Orezone and IAMGOLD Subco will
continue as rights, contracts, permits and interests of IAMGOLD Amalco as
if Orezone and IAMGOLD Subco continued and, for greater certainly, the
merger will not constitute a transfer or assignment of the rights or
obligations of either of Orezone or IAMGOLD Subco under any such rights,
contracts, permits and interests;
|
|
|
C.
|
any
existing cause of action, claim or liability to prosecution is
unaffected;
|
|
|
D.
|
a
civil, criminal or administrative action or proceeding pending by or
against Orezone or IAMGOLD Subco may continue to be prosecuted by or
against IAMGOLD Amalco;
|
|
|
E.
|
a
conviction against, or ruling, order or judgment in favour of or against,
Orezone or IAMGOLD Subco may be enforced by or against IAMGOLD
Amalco;
|
|
|
F.
|
the
name of IAMGOLD Amalco shall be l;
|
|
|
G.
|
all
outstanding Class A Shares shall be cancelled without any repayment of
capital in respect thereof;
|
|
|
H.
|
all
outstanding common shares of IAMGOLD Subco shall be cancelled and IAMGOLD
shall receive on the Amalgamation one common share of IAMGOLD Amalco for
the one common share of IAMGOLD Subco previously held by
IAMGOLD;
|
|
|
I.
|
the
registered and records office of IAMGOLD Amalco shall be located at l;
|
|
|
J.
|
the
head office of IAMGOLD Amalco will be located at l;
|
|
|
K.
|
IAMGOLD
Amalco shall be authorized to issue an unlimited number of common
shares;
|
|
|
L.
|
the
articles of amalgamation of IAMGOLD Amalco shall be substantially in the
form attached as appendix l to this Plan of
Arrangement;
|
76
..
|
|
M.
|
the
by-laws of IAMGOLD Amalco shall be substantially in the form of the
by-laws of IAMGOLD Subco;
|
|
|
N.
|
the
first annual general meeting of IAMGOLD Amalco will be held within 18
months after the Effective Date;
and
|
|
|
O.
|
the
first directors of IAMGOLD Amalco following the Amalgamation shall be
l;
|
provided
that none of the foregoing will occur or be deemed to occur unless all of the
forgoing occurs.
|
|
(b)
|
No Fractional
Shares. Following the Effective Time, if the aggregate
number of IAMGOLD Shares or New Orezone Shares to which an Orezone
Shareholder would otherwise be entitled, or to which a holder of IAMGOLD
Replacement Options, Orezone 2008 Options or the Orezone Warrants is
entitled on exercise or conversion (as the case may be) of IAMGOLD
Replacement Options, the 2008 Options or the Orezone Warrants is not a
whole number, then the number of IAMGOLD Shares or New Orezone Shares, as
the case may be, shall be rounded down to the next whole number and no
compensation will be paid to the Orezone Shareholder in respect of such
fractional IAMGOLD Share or New Orezone Share, as the case may
be.
|
|
4.
|
RIGHTS
OF DISSENT
|
Orezone
Shareholders shall be entitled to exercise dissent rights (“Dissent Rights”) with respect
to the Orezone Shares pursuant to and in the manner set forth in section 190 of
the CBCA as modified by the Interim Order and this section 4, but provided that
notwithstanding subsection 190(a) of the CBCA, such Dissenting Orezone
Shareholder delivers to Orezone written objection to the Arrangement by 5:00
p.m. (Toronto time) on the Business Day immediately prior to the date of the
Orezone Meeting and otherwise complies with section 190 of the CBCA (the “Dissent
Procedures”).
If the
Arrangement is concluded, an Orezone Shareholder who exercises Dissent Rights in
strict compliance with the Dissent Procedures shall be entitled to be paid by
Orezone the fair value of the Orezone Shares held by such Dissenting Orezone
Shareholder in respect of which such Dissenting Orezone Shareholder dissents,
determined as provided for in the CBCA, as modified by the Interim Order and
this section 4, provided that any such Dissenting Orezone Shareholder who
exercises such right to dissent and who:
|
|
(a)
|
is
ultimately entitled to be paid fair value for its Orezone Shares shall be
deemed to have transferred its Orezone Shares to IAMGOLD in consideration
for a debt claim against IAMGOLD to be paid fair value of such shares
pursuant to the Dissent Procedures, and shall not be entitled to any other
payment or consideration, including any payment under the Arrangement had
such holders not exercised their Dissent Rights;
or
|
|
|
(b)
|
is
for any reason ultimately not entitled to be paid for fair value for its
Orezone Shares, shall be deemed to have participated in the Arrangement as
of the Effective Time at the same terms and at the same time as a
non-dissenting Orezone Shareholder and shall be issued only the same
consideration which an Orezone Shareholder is entitled to receive under
the Arrangement as if such Dissenting Orezone Shareholder would not have
exercised Dissent Rights.
|
77
..
In no
case shall IAMGOLD, Orezone or New Orezone be required to recognize Dissenting
Orezone Shareholders or an Orezone Shareholder at and after the Effective Time,
and the names of such Orezone Shareholders shall be removed from the share
register of Orezone at the Effective Time.
|
5.
|
DELIVERY
OF IAMGOLD SHARES AND NEW OREZONE
SHARES
|
|
|
(a)
|
Letter of
Transmittal. The Depositary will forward to each Orezone
Shareholder, at the address of such Orezone Shareholder as it appears on
the register for Orezone Shares, a Letter of Transmittal and instructions
for obtaining delivery of the certificates representing the New Orezone
Shares and the IAMGOLD Shares allotted and issued to such Orezone
Shareholder pursuant to the
Arrangement.
|
|
|
(b)
|
Entitlement to New
Orezone Certificates and IAMGOLD
Certificates.
|
|
|
(i)
|
Upon
surrender to the Depositary for cancellation of a certificate which
immediately prior to the Effective Time represented one or more Orezone
Shares which were exchanged for IAMGOLD Shares and New Orezone Shares in
accordance with section 3 hereof, together with a completed Letter of
Transmittal and such other documents and instruments as would have been
required to effect the transfer of the Orezone Shares formerly represented
by such certificate under the CBCA and the by-laws of Orezone and such
additional documents and instruments as the Depositary may reasonably
require, the holder of such surrendered certificate shall be entitled to
receive in exchange therefor, and the Depositary shall deliver to such
Orezone Shareholder following the Effective Time, certificates
representing the IAMGOLD Shares and the New Orezone Shares to which such
Orezone Shareholder is entitled to receive in accordance with section 3
hereof.
|
|
|
(ii)
|
After
the Effective Time and until surrendered for cancellation as contemplated
by paragraph 5(b)(i) hereof, each certificate which immediately prior to
the Effective Time represented one or more Orezone Shares shall be deemed
at all times to represent only the right to receive in exchange therefor a
certificate representing the IAMGOLD Shares and the New Orezone Shares and
the Cash Consideration to which the holder of such certificate is entitled
to receive in accordance with paragraph 5(b)(i)
hereof.
|
|
|
(c)
|
Lost
Certificates. In the event that any certificate which
immediately prior to the Effective Time represented one or more Orezone
Shares which were exchanged for IAMGOLD Shares and New Orezone Shares in
accordance with section 3 hereof shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the holder
claiming such certificate to be lost, stolen or destroyed, the Depositary
shall deliver in exchange for such lost, stolen or destroyed certificate,
certificates representing
|
78
..
|
|
the
IAMGOLD Shares and the New Orezone Shares which such Orezone Shareholder
is entitled to receive in accordance with section 3
hereof. When authorizing such delivery of certificates
representing the IAMGOLD Shares and the New Orezone Shares which such
Orezone Shareholder is entitled to receive in exchange for such lost,
stolen or destroyed certificate, the Orezone Shareholder to whom
certificates representing such IAMGOLD Shares and New Orezone Shares are
to be delivered shall, as a condition precedent to the delivery of such
IAMGOLD Shares and New Orezone Shares, give a bond satisfactory to
IAMGOLD, New Orezone and the Depositary in such amount as IAMGOLD, New
Orezone and the Depositary may direct, or otherwise indemnify IAMGOLD, New
Orezone and the Depositary in a manner satisfactory to IAMGOLD, New
Orezone and the Depositary, against any claim that may be made against
IAMGOLD, New Orezone or the Depositary with respect to the certificate
alleged to have been lost, stolen or destroyed and shall otherwise take
such actions as may be required by the by-laws of
Orezone.
|
|
|
(d)
|
Termination of
Rights. Any certificate formerly representing Orezone
Shares that is not deposited, with all other documents as provided in this
section 5 on or before the sixth anniversary of the Effective Date, shall
cease to represent any claim or interest of any kind or nature against
IAMGOLD, Orezone, New Orezone or the
Depositary.
|
|
|
(e)
|
Dividends or other
Distributions. No dividends or distributions declared or
made after the Effective Date with respect to IAMGOLD Shares with a record
date after the Effective Date will be payable or paid to the holder of any
unsurrendered certificate or certificates which, immediately prior to the
Effective Date, represented outstanding Orezone Shares unless and until
the holder of such certificate shall have complied with the provisions of
this section 5. Subject to Applicable Law and to section 5
hereof, at the time of such compliance, there shall, in addition to the
delivery of a certificate representing the IAMGOLD Shares and the New
Orezone Shares to which such holder is thereby entitled, be delivered to
such holder, without interest, the amount of the dividend or other
distribution with a record date after the Effective Time theretofore paid
with respect such IAMGOLD Shares and New Orezone
Shares.
|
|
|
(f)
|
Withholding
Rights. IAMGOLD, Orezone, New Orezone and the Depositary
shall be entitled to deduct and withhold from all dividends or other
distributions otherwise payable to any Orezone Shareholder such amounts as
IAMGOLD, Orezone, New Orezone or the Depositary is required or permitted
to deduct and withhold with respect to such payment under the Tax Act, the
United States Internal Revenue Code of 1986 or any provision of any
applicable federal, provincial, state, local or foreign tax law, in each
case, as amended. To the extent that amounts are so withheld, such
withheld amounts shall be treated for all purposes hereof as having been
paid to the Orezone Shareholder in respect of which such deduction and
withholding was made, provided that such withheld amounts are actually
remitted to the appropriate taxing
authority.
|
|
6.
|
AMENDMENT
|
|
|
(a)
|
Amendment.
|
|
|
(i)
|
IAMGOLD,
IAMGOLD Subco, Orezone and New Orezone reserve the right to amend, modify
and/or supplement this Plan of Arrangement at any time and from time to
time prior to the Effective Date, provided that any amendment,
modification or supplement must be contained in a written document which
is filed
with the Court and, if made following the Orezone Meeting, then: (i)
approved by the Court, and (ii) if the Court directs, approved by the
Orezone Shareholders and in any event communicated to them, and in either
case in the manner required by the
Court.
|
|
|
(ii)
|
Any
amendment, modification or supplement to this Plan of Arrangement, if
agreed to by Orezone and IAMGOLD, may be made at any time prior to or at
the Orezone Meeting, with or without any other prior notice or
communication and, if so proposed and accepted by Persons voting at the
Orezone Meeting (other than as may be required under the Interim Order)
shall become part of this Plan of Arrangement for all
purposes.
|
79
..
|
|
(iii)
|
Any
amendment, modification or supplement to this Plan of Arrangement that is
approved or directed by the Court following the Orezone Meeting will be
effective only if it is consented to by Orezone and IAMGOLD and, if
required by the Court, by the Orezone
Shareholders.
|
|
|
(iv)
|
Notwithstanding
the foregoing provisions of this section 6, no amendment, modification or
supplement of this Plan of Arrangement may be made prior to the Effective
Time except in accordance with the terms of the Arrangement
Agreement.
|
80
..
SCHEDULE
B
IAMGOLD
SUBSIDIARIES
|
Company
|
Jurisdiction
|
Percentage
(%)
|
|
IAMGOLD
Ecuador S.A.
|
Ecuador
|
100%
|
|
Repadre
Capital (BVI) Inc.
|
British
Virgin Islands
|
100%
|
|
Repadre
Ventures (BVI) Inc.
|
British
Virgin Islands
|
100%
|
|
Repadre
Finance (BVI) Inc.
|
British
Virgin Islands
|
100%
|
|
Gold
Fields Ghana Limited
|
Ghana
|
18.9%
|
|
IAMGOLD
Tanzania Limited
|
Tanzania
|
100%
|
|
Mupane
Gold Mining (Pty) Ltd.
|
Botswana
|
100%
|
|
Repadre
International Corporation
|
Barbados
|
100%
|
|
Abosso
Goldfields Limited
|
Ghana
|
18.9%
|
|
IAMGOLD-Québec
Management Inc.
|
Quebec,
Canada
|
100%
|
|
Rosebel
Gold Mines N.V.
|
Suriname
|
95%
|
|
La
Arena S.A.
|
Peru
|
100%
|
|
IAMGOLD
Guyane S.A.S.
|
French
Guiana
|
100%
|
|
AGEM
Ltd.
|
Barbados
|
100%
|
|
La
Société d’Exploitation des Mines d’Or de Sadiola S.A.
|
Mali
|
38%
|
|
Sadiola
Exploration Limited
|
British
Virgin Islands
|
50%
|
|
Yatela
Exploitation Company Limited
|
Mali
|
80%
|
|
IAMGOLD
South America Corporation
|
Barbados
|
100%
|
|
IAMGOLD
Argentina S.A.
|
Argentina
|
100%
|
|
IAMGOLD
Brazil S.A.
|
Brazil
|
100%
|
81
..
|
Company
|
Jurisdiction
|
Percentage
(%)
|
|
Kenieba
Exploration Company Limited
|
British
Virgin Islands
|
100%
|
|
RPD
Capital Inc.
|
USA
|
100%
|
|
Mutual
Ghana Ltd
|
Ghana
|
100%
|
|
Rapadre
International (BVI) Inc.
|
British
Virgin Islands
|
100%
|
|
Lake
Xxxxxxxx Xxxx Mines Ltd
|
Tanzania
|
100%
|
|
Sukuma
Mines Ltd
|
Tanzania
|
100%
|
|
Buckreef
Consolidated Mines Ltd
|
Tanzania
|
80%
|
|
Gallery
Gold Pty Ltd
|
Australia
|
100%
|
|
Spinifex
Gold Limited
|
Australia
|
100%
|
|
IAMGOLD
Botswana (Pty) Ltd
|
Botswana
|
100%
|
|
East
Africa Gold Corporation
|
Canada
|
100%
|
|
Shashe
Mines (Pty) Ltd
|
Botswana
|
85%
|
|
IAMGOLD
Management Services Inc
|
Quebec,
Canada
|
100%
|
|
IAMGOLD
Mexico S.A. de C.V.
|
Mexico
|
100%
|
|
Cambior
Guyane S.A.R.L.
|
French
Guiana
|
100%
|
|
OMAI
Gold Mines Limited
|
Guyana
|
95%
|
|
OMAI
Bauxite Company Inc.
|
Guyana
|
100%
|
|
3765351
Canada Inc.
|
Quebec,
Canada
|
100%
|
|
0000-0000
Xxxxxx Inc.
|
Quebec,
Canada
|
100%
|
|
Minera
Polo Sur S.A.
|
Chile
|
76.7%
|
|
IAMGOLD
Peru S.A.
|
Peru
|
100%
|
|
Aunfera
La Arena S.A.C.
|
Peru
|
100%
|
82
..
|
Company
|
Jurisdiction
|
Percentage
(%)
|
|
IAMGOLD
Holdings (USA) Inc.
|
Delaware,
USA
|
100%
|
|
IAMGOLD
Gestion Peru S.A.C.
|
Peru
|
100%
|
|
CBJ
Holdings (Barbados) Inc.
|
Barbados
|
100%
|
|
IAMGOLD
France S.A.S.
|
French
Guiana
|
100%
|
|
IAMGOLD
Exploration USA Inc.
|
Nevada,
USA
|
100%
|
|
IAMGOLD
Alaska LLC
|
Colorado,
USA
|
100%
|
|
IAMGOLD
Purchasing Services Inc.
|
Texas,
USA
|
100%
|
|
Euro
Ressources S.A.
|
France
|
71.62%
|
83
..
SCHEDULE
C
OREZONE
SUBSIDIARIES
|
Company
|
Jurisdiction
|
Percentage
(%)
|
|
Orezone
Inc.
|
British
Virgin Islands
|
100%
|
|
Orezone
Inc. s.a.r.l.
|
Burkina
Faso
|
100%
|
|
Burkina
Resources Inc.
|
British
Virgin Islands
|
100%
|
|
Niger
Resources Inc.
|
British
Virgin Islands
|
100%
|
|
Brighton
Energy Limited
|
British
Virgin Islands
|
100%
|
|
Essakane
(BVI) Limited
|
British
Virgin Islands
|
100%
|
|
Essakane
s.a.r.l.
|
Burkina
Faso
|
100%
|
|
Gold
Fields Burkina Faso s.a.r.l.
|
Burkina
Faso
|
100%
|
|
Orezone
Essakane Limited
|
British
Virgin Islands
|
100%
|
|
Essakane
S.A.
|
Burkina
Faso
|
90%
|
|
Channel
Mining (Barbados) Inc.
|
Barbados
|
100%
|
|
Orezone
Mali s.a.r.l.
|
Mali
|
100%
|
84
..
SCHEDULE
D
ESSAKANE
PROPERTY AND ESSAKANE CONTRACTS
Essakane
Property
The
Essakane Property is comprised of the following permits relating to a mineral
exploration and development area located in the Oudalan Province of Burkina
Faso:
|
|
(a)
|
a
mining permit issued on April 28, 2008 to Essakane S.A. as DECRET N°
2008-203/PRES/PM/MCE/MEF/MECV;
|
|
|
(b)
|
the
Alkoma exploration permit issued on June 19, 2006 to Orezone Inc. s.a.r.l.
as ARRETE N° 2006-049/MCE/SG/DGMGC, as transferred on October 23, 2007 to
Essakane s.a.r.l. by ARRETE N°
2007-163/MCE/SG/DGMGC;
|
|
|
(c)
|
the
Gomo exploration permit issued on June 21, 2006 to Orezone Inc. s.a.r.l.
as ARRETE N° 2006-056/MCE/SG/DGMGC, as transferred on October 23, 2007 to
Essakane s.a.r.l. by ARRETE N°
2007-160/MCE/SG/DGMGC;
|
|
|
(d)
|
the
Gossey exploration permit issued on June 21, 2006 to Orezone Inc. s.a.r.l.
as ARRETE N° 2006-062/MCE/SG/DGMGC, as transferred on October 23, 2007 to
Essakane s.a.r.l. by ARRETE N°
2007-166/MCE/SG/DGMGC;
|
|
|
(e)
|
the
Lao Gountouré exploration permit issued on June 21, 2006 to Orezone Inc.
s.a.r.l. as ARRETE N° 2006-050/MCE/SG/DGMGC, as transferred on October 23,
2007 to Essakane s.a.r.l. by ARRETE N°
2007-162/MCE/SG/DGMGC;
|
|
|
(f)
|
the
Tassiri exploration permit issued on June 21, 2006 to Orezone Inc.
s.a.r.l. as ARRETE N° 2006-059/MCE/SG/DGMGC, as transferred on October 23,
2007 to Essakane s.a.r.l. by ARRETE N° 2007-161/MCE/SG/DGMGC;
and
|
|
|
(g)
|
the
Korizéna exploration permit issued on November 21, 2006 to Orezone Inc.
s.a.r.l. as ARRETE N° 2006-135/MCE/SG/DGMGC, as transferred on October 23,
2007 to Essakane s.a.r.l. by ARRETE N°
2007-165/MCE/SG/DGMGC.
|
Essakane
Contracts
The
following are the Essakane Contracts:
|
|
(a)
|
a
mining convention dated September 26, 2008 between Essakane S.A. and the
government of Burkina Faso;
|
|
|
(b)
|
a
mining permit issued on April 28, 2008 to Essakane S.A. as ARRETE N°
2008-203/PRES/PM/MCE/MEF/MECV;
|
|
|
(c)
|
a
secured bridge facility agreement dated August 29, 2008 between Orezone
Essakane Limited and The Standard Bank of South Africa
Limited;
|
|
|
(d)
|
an
inter-company loan agreement dated August 29, 2008 between Essakane S.A.,
Orezone Essakane Limited and The Standard Bank of South Africa
Limited;
|
85
..
|
|
(e)
|
an
equitable mortgage dated August 29, 2008 granted by Essakane (BVI) Limited
in favour of The Standard Bank of South Africa Limited over registered
shares in Orezone Essakane Limited;
|
|
|
(f)
|
a
charge over accounts agreement dated August 29, 2008 between Orezone
Essakane Limited and The Standard Bank of South Africa
Limited;
|
|
|
(g)
|
a
guarantee and subordinated deed dated August 29, 2008 between Orezone,
Orezone Inc., Essakane (BVI) Limited, Orezone Essakane Limited, Essakane
S.A. and The Standard Bank of South Africa
Limited;
|
|
|
(h)
|
a
deed of subordination dated August 29, 2008 between Minquest Fund I, L.P.,
The Standard Bank of South Africa Limited and
Orezone;
|
|
|
(i)
|
an
engineering, procurement and construction management services agreement
dated February 1, 2008 between Essakane S.A. and GRD Minproc (Pty)
Limited;
|
|
|
(j)
|
a
supply contract dated July 8, 2008 between Essakane S.A. and Wärtsilä
Finland Oy for the supply and delivery of power plant
equipment;
|
|
|
(k)
|
a
supply contract dated January 2, 2008 between Essakane S.A. and FLSmidth
Minerals (Pty) Ltd. for the supply and installation of SAG and ball xxxxx,
together with an e-mail dated May 8, 2008 from GRD Minrpoc (Pty) Ltd.
addressed to Xxxxxx Xxxxxx regarding payment schedule for
xxxxx;
|
|
|
(l)
|
a
contract awarded May 12, 2008 between SNC-Lavalin Inc. and Essakane S.A.
for the engineering of mine
truckshop;
|
|
|
(m)
|
a
contract awarded June 16, 2008 between Fadoul Technibois and Essakane S.A.
regarding cementing work for
foundations;
|
|
|
(n)
|
a
share purchase agreement dated October 10, 2007 between Gold Fields Orogen
Holding (BVI) Limited, Gold Fields Essakane (BVI) Limited, Orezone
Essakane (BVI) Limited and Orezone, as
amended;
|
|
|
(o)
|
a
consulting agreement effective October 1, 2007 between Orezone and G
Mining Services Inc.;
|
|
|
(p)
|
a
consulting agreement effective October 1, 2007 between Orezone and X.
Xxxxxx Consultants Inc.;
|
|
|
(q)
|
Essakane
– Early Works Construction Insurance Policy No. CLP 7217832, Allianz
Global Risks US Insurance Company;
|
|
|
(r)
|
Marine/Cargo
Project Policy No. 115737, AGF Burkine
Assurances;
|
|
|
(s)
|
Commercial
General Liability (“Wrap-up”) Policy No. ADV6453031, ACE INA
Insurance;
|
|
|
(t)
|
a
financial advisory services agreement dated November 22, 2007 between
Orezone and Auramet Trading, LLC;
|
86
..
|
|
(u)
|
an
agreement dated May 27, 2008 between Essakane S.A. and PreFab Design
Services of South Africa, for the supply of pre-fabricated
buildings;
|
|
|
(v)
|
a
purchase order dated April 9, 2008 between Essakane S.A. and X.X. Xxxxxx
Export SAS of France for the supply of mining fleet
equipment;
|
|
|
(w)
|
a
purchase order dated July 23, 2008 between Essakane S.A. and Siemens Ltd.
of South Africa for the supply of a variable speed drive (SAG
motor);
|
|
|
(x)
|
a
purchase order dated May 23, 2008 between Essakane S.A. and
Xxxxxx Mineral Equipment of Australia for the supply of a mill re-lining
machine;
|
|
|
(y)
|
purchase
orders dated September 27, 2007, January 31, 2008, and June 16, 2008
between Essakane S.A. and Tower Crane Services cc of South Africa for the
supply of tower and mobile cranes;
|
|
|
(z)
|
a
purchase order dated March 5, 2008 between Essakane S.A. and Metso
Minerals of South Africa for the supply of gyratory
crushers;
|
|
|
(aa)
|
a
contract dated September 3, 2008 between Essakane S.A. and BCM
International of Nevis, West Indies for the completion of various
earthwork projects including the construction of roads, plant drainage,
and pollution control dams; and
|
|
|
(bb)
|
a
contract dated September 11, 2008 between Essakane S.A. and Société
Kanazoé Frères of Burkina Faso for relocation housing
construction.
|
87
..
SCHEDULE
E
DIRECTORS
AND OFFCIERS OF OREZONE
The
following are all of the directors and officers of Orezone:
|
|
(a)
|
Xxxxxx
Xxxxxx
|
|
|
(b)
|
Xxxxxxx
Xxxxxxxxx
|
|
|
(c)
|
Xxxx
Xxxxxx
|
|
|
(d)
|
Xxxxx
Xxxxxxxxx
|
|
|
(e)
|
Xxxxx
Xxxxxxxxxx
|
|
|
(f)
|
Xxxxxx
Xxxxxxx
|
|
|
(g)
|
Xxxxxxx
Xxxxx
|
|
|
(h)
|
Xxxx
Xxxxxxx
|
|
|
(i)
|
Xxxx
Xxxxxx
|
|
|
(j)
|
Xxxxxxx
Xxxxxxxxxx
|
