Exhibit E
FORM OF AFFILIATE AGREEMENT
_________, 2001
Xxxxxxx Gold Corporation
Xxxxx Xxxx Xxxxx, Xxxxx Xxxxx
000 Xxx Xxxxxx, Xxxxx 0000
X.X. Xxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Homestake Mining Company
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Ladies and Gentlemen:
The undersigned, a holder of shares of common stock, par value $1.00
per share ("COMPANY COMMON STOCK"), of Homestake Mining Company, a Delaware
corporation (the "COMPANY"), acknowledges that the undersigned may be deemed an
"affiliate" of the Company within the meaning of Rule 145 ("RULE 145")
promulgated under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
by the Securities and Exchange Commission (the "SEC") and may be deemed an
"affiliate" of the Company for purposes of qualifying the Merger (as defined
below) for pooling of interests accounting treatment under Opinion 16 of the
Accounting Principles Board and applicable SEC rules and regulations, although
nothing contained herein should be construed as an admission of either such
fact. Pursuant to the terms of the Agreement and Plan of Merger dated as of June
24, 2001 (the "MERGER Agreement"), among Xxxxxxx Gold Corporation, a corporation
organized under the laws of the Province of Ontario ("PARENT"), Homestake Merger
Co., a Delaware corporation and a direct, wholly owned subsidiary of Parent
(formerly known as "Havana Acquisition Inc.")("SUB"), and the Company, Sub will
be merged with and into the Company (the "MERGER"), and in connection with the
Merger, the undersigned is entitled to receive common shares in the capital of
Parent ("Parent Common Stock").
In consideration of the Merger and the mutual covenants contained
herein, the undersigned, Parent and the Company hereby agree as follows:
If in fact the undersigned were an affiliate under the Securities Act,
the undersigned's ability to sell, assign or transfer the shares of Parent
Common Stock received by the undersigned in exchange for any shares of Company
Common Stock in connection with the Merger may be restricted unless such
transaction is registered under
the Securities Act or an exemption from such registration is available
(including Regulation S under the Securities Act). The undersigned understands
that such exemptions are limited and the undersigned has obtained or will obtain
advice of counsel as to the nature and conditions of such exemptions, including
information with respect to the applicability to the sale of such securities of
Rules 144 and 145(d) promulgated under the Securities Act. Other than pursuant
to Section 3.04 of the Stockholders Agreement (as defined in the Merger
Agreement), the undersigned understands that Parent will not be required to
maintain the effectiveness of any registration statement under the Securities
Act for the purposes of resale of Parent Common Stock by the undersigned.
The undersigned hereby represents to and covenants with Parent that the
undersigned will not sell, assign or transfer any of the shares of Parent Common
Stock received by the undersigned in exchange for shares of Company Common Stock
in connection with the Merger except (i) pursuant to an effective registration
statement under the Securities Act, (ii) in conformity with the volume and other
limitations of Rule 145 or (iii) in a transaction which, in the opinion of
counsel to the undersigned, such counsel to be reasonably satisfactory to Parent
and such opinion to be in form and substance reasonably satisfactory to Parent,
or as described in a "no-action" or interpretive letter from the Staff of the
SEC specifically issued with respect to a transaction to be engaged in by the
undersigned, is not required to be registered under the Securities Act.
The undersigned hereby further represents to and covenants with Parent
and the Company that the undersigned will not, within the 30 days prior to the
Closing Date, effect a Transfer (as defined below) of any shares of Company
Common Stock held by the undersigned and that the undersigned will not Transfer
any Parent Common Stock received by the undersigned in connection with the
Merger until after such time as results covering at least 30 days of post-Merger
combined operations of the Company and Parent have been published by Parent (the
"REPORT"), in the form of a quarterly earnings report, an effective registration
statement filed with the SEC, a report to the SEC on Form 00-X, 00-X, 0-X xx
0-X, xx any other public filing or announcement which includes such combined
results of operations (the "POOLING RESTRICTED PERIOD"). Parent will publish the
Report within 30 days following the end of the first calendar month during which
the 30th day of post-Merger combined operations of the Company and Parent
occurs.
Notwithstanding anything to the contrary contained in the immediately
preceding paragraph, the undersigned will be permitted, during the Pooling
Restricted Period, (i) to sell, exchange, transfer, pledge or otherwise dispose
of or grant any option, establish any "short" or "put"-equivalent position with
respect to, or enter into any similar transaction (through derivatives or
otherwise) intended to have the effect, directly or indirectly, of reducing the
undersigned's risk relative to any shares of Company Common Stock or Parent
Common Stock received by the undersigned in connection with the Merger (a
"TRANSFER") in an amount equal to the lesser of (A) 10% of the Company Common
Stock, or equivalent post-Merger Parent Common Stock, owned by the undersigned
and (B) the undersigned's pro rata portion of 1% of the total number
2
of outstanding shares of Company Common Stock, or equivalent post-merger Parent
Common Stock, owned by the undersigned and all other affiliates of the Company
(in each of clause (A) and (B) above as measured as of the date of the beginning
of the Pooling Restricted Period and subject to confirmation of such calculation
by Parent), and (ii) to make bona fide charitable contributions of gifts of such
securities; provided, HOWEVER, that the transferee(s) of such charitable
contributions or gifts agree(s) in writing to hold such securities during the
Pooling Restricted Period.
In the event of a sale or other disposition by the undersigned of the
shares of Parent Common Stock pursuant to Rule 145(d)(1), the undersigned will
supply Parent with evidence of compliance with such Rule, in the form of a
letter in the form of Annex I hereto or the opinion of counsel or no-action
letter referred to above. The undersigned understands that Parent may instruct
its transfer agent to withhold the transfer of any shares of Parent Common Stock
disposed of by the undersigned, but that (provided such transfer is not
prohibited by any other provision of this letter agreement) upon receipt of such
evidence of compliance, Parent shall cause the transfer agent to effectuate the
transfer of the shares of Parent Common Stock sold as indicated in such letter.
Parent agrees, for a period of two years after the effective date of the Merger,
to file on a timely basis all reports required to be filed by it pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), so that there is available adequate current public information
with respect to Parent within the meaning of Rule 144(c) promulgated by the SEC
as the same is presently in effect and so that in the event the undersigned
desires to transfer any shares of Parent Common Stock issued to the undersigned
pursuant to the Merger, Rule 145(d) will be available to the undersigned. Until
the second anniversary of the Effective Date of the Merger, Parent agrees that,
at the time of any proposed transfer by the undersigned of shares of Parent
Common Stock received by the undersigned in the Merger, Parent will on request
provide the undersigned with a written statement to the effect that Parent has
filed all reports required to be filed by it under Section 13 or 15(d) of the
Exchange Act during the then preceding 12 months and has been subject to such
filing requirements for the then past 90 days, PROVIDED that Parent need not
provide any such written statement if the most recent quarterly or annual report
filed by Parent with the SEC contains a statement on its cover to the foregoing
effect.
This Agreement shall simultaneously be terminated and of no further
force and effect whatsoever (a) in the event of the termination of the Merger
Agreement pursuant to the terms of Article VII thereof or (b) in the case of
Mr. August xxx Xxxxx, Mr. August-Xxxxxxxx xxx Xxxxx, Mr. Luitpold-Xxxxxxxxx xxx
Xxxxx and Xx. Xxxxx-Xxxxxxxx xxx Xxxxx, in the event of the termination of the
Stockholders Agreement pursuant to Section 4.01(c) thereof with respect to such
individuals.
If the undersigned is an employee of the Company on the date of the
Merger Agreement, Parent agrees that it shall not terminate the employment of
the undersigned until the Pooling Restricted Period has expired.
The undersigned acknowledges and agrees with the Company and Parent
that if the undersigned were to take any of the actions prohibited by this
letter during the Pooling Restricted Period, such actions could result in the
Merger ceasing to be eligible for pooling of interests accounting treatment
under GAAP.
3
The undersigned acknowledges that (i) the undersigned has carefully
read this letter and understands the requirements hereof and the limitations
imposed upon the distribution, sale, transfer or other disposition of Parent
Common Stock and (ii) the receipt by Parent of this letter is an inducement to
Parent's obligations to consummate the Merger.
Very truly yours,
------------------------------
Name:
By:
--------------------------
Attorney-in-fact
By:
--------------------------
Attorney-in-fact
Accepted and Agreed:
XXXXXXX GOLD CORPORATION
By
---------------------------
Name:
Title:
HOMESTAKE MINING COMPANY
By
---------------------------
Name:
Title:
4
Annex I
[Name] [Date]
On , the undersigned sold the securities of Xxxxxxx Gold Corporation
("Parent") described below in the space provided for that purpose (the
"SECURITIES"). The Securities were received by the undersigned in connection
with the merger of Homestake Merger Co., a Delaware corporation, with and into
Homestake Mining Company, a Delaware corporation.
Based upon the most recent report or statement filed by Parent with the
Securities and Exchange Commission, the Securities sold by the undersigned were
within the prescribed limitations set forth in paragraph (e) of Rule 144
promulgated under the Securities Act of 1933, as amended (the "SECURITIES ACT").
The undersigned hereby represents that the Securities were sold in
"brokers' transactions" within the meaning of Section 4(4) of the Securities Act
or in transactions directly with a "market maker" as that term is defined in
Section 3(a)(38) of the Securities Exchange Act of 1934, as amended. The
undersigned further represents that the undersigned has not solicited or
arranged for the solicitation of orders to buy the Securities, and that the
undersigned has not made any payment in connection with the offer or sale of the
Securities to any person other than to the broker who executed the order in
respect of such sale.
Very truly yours,
[Space to be provided for description of the Securities]
