AGREEMENT made on December 9, 2005
Execution
Copy
made
on December 9, 0000
X
X X X X
X X:
Placer
Dome Inc.
(hereinafter,
“Placer Dome”)
-
and
-
Xxxxxxx
Gold Corporation
(hereinafter,
“Barrick”)
WHEREAS
Barrick
has commenced a take-over bid for all of the common shares of Placer Dome,
which
is currently due to expire at 8:00 p.m. EST on December 20, 2005 (the
“Offer”);
AND
WHEREAS
Barrick
and Placer Dome have made applications to the British Columbia Securities
Commission and the Ontario Securities Commission, respectively, arising from
or
relating to the Offer;
AND
WHEREAS
Placer
Dome and Barrick have agreed to certain conditions to both the withdrawal of
the
securities regulatory applications and the applicability of the Placer Dome
Shareholder Rights Plan (the “Rights Plan”) in relation to an Amended Offer (as
that term is defined in Section 6 below);
NOW
THEREFORE
in
consideration of the undertakings and covenants set forth herein, the
sufficiency of which consideration is hereby irrevocably acknowledged by each
of
the parties hereto, the parties covenant and agree as follows:
1. Barrick
hereby covenants and agrees that:
| (a) |
it
shall withdraw forthwith (and by no later than the close of business
on
December 12, 2005) its application filed with the British Columbia
Securities Commission on December 2, 2005 in respect of the Rights
Plan;
and
|
| (b) |
from
the date hereof until the earlier of:
|
| (i) |
immediately
after the expiry of the Amended Offer; and
|
| (ii) |
the
date, if any, upon which Barrick acquires Common Shares pursuant
to an
Amended Offer which, together with any other Common Shares of Placer
Dome
beneficially owned by Barrick, results in Barrick owning less than
50% of
the issued and outstanding common shares of Placer Dome on a fully-diluted
basis at that time,
|
it
shall
not commence any securities regulatory or court application, complaint or
proceeding of any nature or kind, whether formal or informal, in respect of
the
Rights Plan, or in respect of any cause, matter or thing known to Barrick and
existing on the date of this Agreement in respect of Placer Dome’s response to
the Offer, including but not limited to Placer Dome’s Directors’ Circular dated
November 23, 2005 (in the form existing as of the date hereof), any other
statements made by or on behalf of Placer Dome in relation to the Offer prior
to
the date hereof, or its public disclosure record generally as of the date
hereof.
2. For
greater certainty, nothing in Section 1(b)
shall
prevent Barrick from (i) commencing or continuing any application or proceeding
that is reasonably necessary to allow the Amended Offer to proceed or to procure
the satisfaction of any condition of the Amended Offer; or (ii) responding
to or
cooperating in respect of any inquiries, questions or requests for information
from any securities regulators or court.
3. Placer
Dome hereby covenants and agrees that:
| (a) |
it
shall withdraw forthwith (and by no later than the close of business
on
December 12, 2005) its application filed with the Ontario Securities
Commission
|
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on
December 5, 2005 seeking relief under section 104
of the Securities
Act
(Ontario), jurisdiction over which was subsequently declined by the Ontario
Securities Commission and accepted by the British Columbia Securities
Commission;
| (b) |
provided
that:
|
| (i) |
Barrick
has not become an Acquiring Person (as that term is defined in the
Rights
Plan), or
|
| (ii) |
Placer
has not determined that it is necessary to permit the Separation
Time to
occur in respect of an offer or share acquisition made by a third
party,
|
it
shall
defer the Separation Time (as that term is defined in the Rights Plan) until
no
earlier than immediately after the expiry or termination of the Amended
Offer;
| (c) |
prior
to noon EST on January 16, 2006, Placer Dome shall irrevocably waive,
with
effect at 7:30 p.m. EST on the first scheduled expiry date of the
Amended
Offer upon which Barrick elects to take up shares of Placer Dome
deposited
under the Amended Offer, the application of Section 3.1 of the Rights
Plan
to any Flip-In Event (as that term is defined in the Rights Plan)
in
respect of the Amended Offer, and Placer Dome shall confirm such
irrevocable waiver in writing to Barrick no later than 1:00 p.m.
EST on
January 16, 2006; and
|
| (d) |
from
the date hereof until the earliest of
|
| (i) |
immediately
after the expiry of the Amended Offer;
|
| (ii) |
the
date, if any, upon which Barrick acquires Common Shares pursuant
to an
Amended Offer which, together with any other Common Shares of Placer
Dome
beneficially owned by Barrick, results in Barrick owning less than
50% of
the issued and outstanding common shares of Placer Dome on a fully-diluted
basis at that time; or
|
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3
-
| (iii) |
the
Rights Plan being cease-traded or terminated by a court or regulatory
authority as a result of action by a third
party,
|
it
shall
not commence any securities regulatory or court application, complaint or
proceeding of any nature or kind, whether formal or informal, in respect of
the
disclosure in or terms of the Offer or the Amended Offer, in each case, in
respect of any cause, matter or thing known to Placer Dome and existing on
the
date of this Agreement in respect of Barrick, including but not limited to
Xxxxxxx’x Offer Circular dated November 10, 2005 (in the form existing as of the
date hereof), any other statements made by or on behalf of Barrick in relation
to the Offer prior to the date hereof, or its public disclosure record generally
as of the date hereof.
4. For
greater certainty, nothing in Section 3(d) shall prevent Placer from (i)
responding to or cooperating in respect of any inquiries, questions or requests
for information from any securities regulators or court; (ii) responding to,
making submissions regarding, or opposing any application by Barrick referred
to
in Section 2; or (iii) from any communications, applications or proceedings
relating to any transaction or agreement between Placer Dome and any third
party
in respect of Placer Dome or its securities.
5. It
is
understood that this Agreement is being entered into solely to settle the terms
under which the application of Section 3.1 of the Rights Plan will be waived
with respect to the Amended Offer, and does not represent any change to the
recommendation of the Board of Directors of Placer Dome contained in Placer
Dome’s Directors’ Circular or any approval or endorsement of the Offer or the
Amended Offer by Placer Dome or its Board of Directors.
6. For
the
purposes of this Agreement, the “Amended Offer” means the Offer as amended from
time to time provided that the Offer as so amended (from time to time) is not
less favourable to the shareholders of Placer Dome than the terms of the Offer,
as determined in good faith by the Board of Directors of Placer Dome, and
without limiting the generality of the foregoing, which provides in particular
that:
| (a) |
it
expires no earlier than 8:00 p.m. EST on January 16,
2006;
|
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| (b) |
the
consideration per Common Share is identical to or increased in amount
to
that contained in the Offer;
|
| (c) |
it
is an offer to purchase all of the outstanding Common Shares on a
fully-diluted basis; and
|
| (d) |
it
does not contain amended conditions or new conditions, in each case
that
are less favourable to the shareholders of Placer Dome than those
contained in the Offer.
|
7. This
Agreement may be executed by the parties in separate counterparts each of which
when so executed and delivered shall be an original, but all such counterparts
shall together constitute one and the same instrument. This Agreement may be
delivered by either party by facsimile and if so executed and delivered shall
be
legally valid and binding on the party executing in such manner.
8. This
Agreement shall be governed by the laws of Ontario and the laws of Canada
applicable therein.
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remainder of this page left intentionally blank]
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ALL
OF THE FOREGOING
shall
enure to the benefit of the parties hereto and their respective successors,
assigns and representatives and be binding upon the parties hereto and their
respective successors, assigns and representatives.
IN
WITNESS OF WHICH the
parties have duly executed this Agreement.
|
PLACER
DOME INC.
|
XXXXXXX GOLD
CORPORATION
|
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| By: | /s/ Xxxxx Xxxxxxx | By: | /s/ Xxxxxxx Xxxxxx | |||
|
Name:
Xxxxx Xxxxxxx
|
Name:
Xxxxxxx Xxxxxx
|
|||||
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Title:
President and Chief Executive Officer
|
Title:
Executive Vice President and General
Counsel
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| By: | /s/ Xxxxx Xxxxxxx | |||||
|
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Name:
Xxxxx Xxxxxxx
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|||||
|
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Title: Vice
President, Assistant General Counsel and
Secretary
|
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