EXECUTION COPY
AMENDMENT NO. 3 dated as of June 24,
2001, to the Rights Agreement dated as of
October 16, 1987, and amended as of October 15,
1997 and as of December 3, 1998 (as amended
prior to the date hereof, the "Rights
Agreement"), by and between HOMESTAKE MINING
COMPANY, a Delaware corporation (the "Company"),
and FLEET NATIONAL BANK N.A., a national banking
association, as successor to BANK OF AMERICA
NATIONAL TRUST AND SAVING ASSOCIATION, a
national banking corporation, as Rights Agent
(the "Rights Agent").
WHEREAS, pursuant to Section 26 of the Rights Agreement, any
amendment or supplement to the Rights Agreement duly approved by the
Company that does not amend Section 19, 20, 21 or 22 in a manner adverse to
the Rights Agent shall become effective immediately upon execution by the
Company, whether or not also executed by the Rights Agent.
NOW, THEREFORE, pursuant to the terms of the Rights Agreement and
in accordance with Section 26 thereof, the following actions are hereby
taken prior to executing the Merger Agreement referred to below:
Section 1. Amendments to Rights Agreement. The Rights Agreement
is hereby amended as follows:
(a) The definition of "Acquiring Person" in Section 1 of the
Rights Agreement is amended to add the following sentence at the end
thereof:
"Notwithstanding anything in this Agreement to the contrary,
neither Xxxxxxx Gold Corporation nor any of its Affiliates
or Associates (hereinafter, collectively, "Barrick") shall
be deemed to be an Acquiring Person, either individually or
collectively, solely by virtue of (i) the approval,
execution or delivery of the Merger Agreement or the
Stockholders Agreement, (ii) the announcement of the Merger,
(iii) the acquisition or conversion of the Common Stock or
Homestake Special Voting Stock pursuant to the Merger or the
Merger Agreement or (iv) the consummation of the Merger or
of the other transactions contemplated by the Merger
Agreement or the Stockholders Agreement."
2
(b) Section 3(b) of the Rights Agreement is amended to add the
following sentence immediately after the first sentence thereof:
"Notwithstanding anything in this Agreement to the contrary,
no Distribution Date shall be deemed to have occurred solely
as the result of (i) the approval, execution or delivery of
the Merger Agreement or the Stockholders Agreement, (ii) the
announcement of the Merger, (iii) the acquisition or
conversion of the Common Stock or Homestake Special Voting Stock
pursuant to the Merger or the Merger Agreement or (iv) the
consummation of the Merger or of the other transactions
contemplated by the Merger Agreement or the Stockholders
Agreement."
(c) Clause (i) of the first sentence of Section 7(a) of the
Rights Agreement is amended and restated to read in its entirety as
follows:
"(i) the earlier of (1) the Close of Business on October 15,
2007 and (2) immediately prior to the Effective Time of the
Merger (such earlier time being the "Expiration Date"), or
".
(d) The following definitions shall be added to Section 1 of the
Rights Agreement:
"Effective Time of the Merger" has the meaning set forth in
the Merger Agreement.
"Merger" has the meaning set forth in the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger
dated as of June 24, 2001, among Xxxxxxx Gold Corporation,
Havana Acquisition Inc. and Homestake Mining Company.
"Stockholders Agreement" has the meaning set
forth in the Merger Agreement.
Section 2. Full Force and Effect. Except as expressly amended
hereby, the Rights Agreement shall continue in full force and effect in
accordance with the provisions thereof on the date hereof.
Section 3. Governing Law. This Amendment shall be governed by and
construed in accordance with the law of the State of Delaware applicable to
contracts to be made and performed entirely within such State.
IN WITNESS WHEREOF, the Company and the Rights Agent have
caused this Amendment to be duly executed as of the day and year first
above written.
HOMESTAKE MINING COMPANY,
by: /s/ Xxxxx Xxxx
--------------------------------
Name: Xxxxx Xxxx
Title: Vice President
FLEET NATIONAL BANK N.A.,
as Right Agent,
by:
--------------------------------
Name:
Title:
