SHARE PURCHASE AGREEMENT
Exhibit 11
THIS
AGREEMENT made as of the 2nd day of September, 2005,
BETWEEN:
LANSDOWNE UK EQUITY FUND LIMITED,
a company incorporated under the laws of the
Cayman Islands, B.W.I.,
a company incorporated under the laws of the
Cayman Islands, B.W.I.,
(hereinafter called the “Vendor”),
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1184760 ALBERTA LTD.,
a corporation incorporated under the laws of the
Province of Alberta,
a corporation incorporated under the laws of the
Province of Alberta,
(Hereinafter called the “Purchaser”),
-and-
(hereinafter called the “Guarantor”),
WITNESSES THAT in consideration of the respective covenants, agreements, representations,
warranties and indemnities herein contained and for other good and valuable consideration (the
receipt and sufficiency of which are acknowledged by each party), the parties covenant and agree as
follows:
ARTICLE 1
INTERPRETATION
INTERPRETATION
1.1 Defined Terms.
For the purpose of this Agreement, unless the context otherwise requires, the following terms
shall have the respective meanings set out below and grammatical variations of such terms shall
have corresponding meanings:
“Affiliate” of a company means a subsidiary of the company, any body corporate of which the
company is a subsidiary and, if the company is a subsidiary of another body corporate, every
other subsidiary of that body corporate;
“Business Day” means any day, other than a Saturday or a Sunday, on which banks in London,
England and Zug, Switzerland are open for business;
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“Closing” means the closing of the purchase and sale of the Purchased Shares;
“Closing Date” means the earlier of (i) the fourth Business Day after the satisfaction of
the condition set forth in section 7.l(d), and (ii) November 30, 2005;
“Common Shares” means the common shares of the Corporation;
“Competition Act” means the Competition Act (Canada);
“Competition Commissioner” means the Commission of Competition appointed under the
Competition Act;
“Contract” means any agreement, indenture, contract, lease, deed of trust, licence, option,
instrument or other commitment, whether written or oral;
“Corporation” means Falconbridge Limited, a corporation existing under the laws of the
Province of Ontario, Canada;
“Encumbrance” means any encumbrance, lien, charge, hypothec, pledge, mortgage, title
retention agreement, security interest of any nature, adverse claim, exception,
reservation, easement, right of occupation, any matter capable of registration against
title, option, right of pre-emption, privilege or any Contract to create any of the
foregoing;
“Purchase
Price” has the meaning set out in section 2.2;
“Purchased Shares” has the meaning set out in section 2.1;
“Time of Closing” means 10:00 a.m. (London time) on the Closing Date.
1.2 Currency.
Unless otherwise indicated, all dollar amounts referred to in this Agreement are expressed in
Canadian dollars.
1.3
Sections and Headings.
The division of this Agreement into sections and the insertion of headings are for
convenience of reference only and shall not affect the interpretation of this Agreement. Unless
otherwise indicated, any reference in this Agreement to an Article, section, subsection, clause or
a Schedule refers to the specified Article, section, subsection or clause of or Schedule to this
Agreement.
1.4
Entire Agreement.
This Agreement constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements, understandings, negotiations and
discussions, whether written or oral. There are no conditions, covenants, agreements,
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representations, warranties or other provisions, express or implied, collateral, statutory or
otherwise, relating to the subject matter hereof except as herein provided.
1.5 Time of Essence.
Time
shall be of the essence of this Agreement.
1.6 Applicable Law.
This Agreement shall be construed, interpreted and enforced in accordance with, and the
respective rights and obligations of the parties shall be governed by, the laws of England, and
each party hereby irrevocably and unconditionally submits to the non-exclusive jurisdiction of the
courts of England and all courts competent to hear appeals therefrom.
1.7 Severability.
If any provision of this Agreement is determined by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, such determination shall not impair or affect the
validity, legality or enforceability of the remaining provisions hereof, and each provision is
hereby declared to be separate, severable and distinct.
1.8 Successors and Assigns.
This Agreement shall enure to the benefit of and shall be binding on and enforceable by the
parties and, where the context so permits, their respective
successors and permitted assigns. No
party may assign any of its rights or obligations hereunder without the prior written consent of
the other party.
1.9 Amendment and Waivers.
No
amendment or waiver of any provision of this Agreement shall be binding on any party
unless consented to in writing by such party. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision, nor shall any waiver constitute a continuing waiver
unless otherwise expressly provided.
ARTICLE 2
PURCHASE AND SALE OF PURCHASED SHARES
PURCHASE AND SALE OF PURCHASED SHARES
2.1 Purchase and Sale of Purchased Shares.
Subject to the terms and conditions hereof, the Vendor covenants and agrees to sell, assign
and transfer to the Purchaser and the Purchaser covenants and agrees to purchase from the Vendor
180,240 issued and outstanding Common Shares (the “Purchased Shares”).
2.2 Purchase Price.
The purchase price payable by the Purchaser to the Vendor for the Purchased Shares (the
“Purchase Price”) shall be Cdn.$28.00 per Purchased Share in cash.
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2.3 Adjustment of Purchase Price — Price Protection.
(a) If at any time in the nine-month period following the 14th day of August, 2005
(the “Price Protection Period”):
(i) | the Guarantor or any of its Affiliates or any person acting jointly or in concert with the Guarantor makes an offer or proposal to the Corporation respecting, or publicly announces an intention to undertake, an amalgamation or merger with, or an arrangement involving, the Corporation (or other similar transaction) pursuant to which the Guarantor will directly, or indirectly through an Affiliate, or any person acting jointly or in concert with the Guarantor, acquire all or a majority portion of the business of the Corporation; or | ||
(ii) | the Guarantor or any of its Affiliates or any person acting jointly or in concert with the Guarantor makes an offer or proposal to the Corporation respecting, or publicly announces an intention to undertake, a take-over bid by take-over bid circular in compliance with applicable Canadian securities laws, after giving effect to which the Guarantor, if successful, would beneficially own directly or indirectly through an Affiliate, and together with any person acting jointly or in concert with the Guarantor, a majority of the Common Shares; |
(any such transaction being a “Price Protection Transaction”) then within five
business days following the completion by the Guarantor or its Affiliate of the
Price Protection Transaction the Guarantor will pay, or cause an Affiliate to pay,
to the Vendor the Adjustment Payment (as defined below), if applicable, in
immediately available funds.
(b) The Vendor will be entitled to receive an additional amount on account of each of
the Purchased Shares (the “Adjustment Payment”) equal to the amount by which the
consideration per Common Share received by the holders of the Corporation’s Common Shares
pursuant to the Price Protection Transaction (the “Greater Price”) exceeds the Purchase Price
(c) If all or any portion of the Greater Price is in the form of:
(i) | cash, the consideration shall be valued based on the face value of the cash, | ||
(ii) | publicly traded securities, the consideration shall be valued based on the closing price of such securities on the date of the completion of the Price Protection Transaction on the published market on which the greatest volume of trading in such securities occurred over the 20 trading days preceding such date, | ||
(iii) | securities that are not publicly traded until the date of the completion of the Price Protection Transaction, the consideration shall be valued based on the closing price of such securities on the five trading days following the completion of the Price Protection Transaction on the published |
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market on which the greatest volume of trading in such securities occurred over such period, or | |||
(iv) | any other consideration, the consideration shall be valued at its fair market value as the Vendors and the Purchaser shall mutually agree, acting reasonably. |
(d) If all or any portion of the consideration forming the Greater Price has a value
expressed in a currency other than Canadian dollars, then the value of that consideration will
be
expressed in Canadian dollars based upon a conversion rate of exchange equal to the noon spot
rate quoted by the Bank of Canada on the date of the completion of the Price Protection
Transaction for the purchase of Canadian dollars using the currency in which the consideration
(or portion thereof) was originally denominated.
(e) In the event of any disagreement between the Parties with respect to the
calculation of the value of the Greater Price, the matter will be submitted to an
internationally
recognized firm of chartered accountants to be agreed upon by the parties, provided that such
firm may not be the auditors of either the Vendor or the Guarantor. The decision of such firm
of
chartered accountants as to the value of the Adjustment Payment will be final and binding on
the
parties,
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE VENDOR
REPRESENTATIONS AND WARRANTIES OF THE VENDOR
The Vendor represents and warrants to the Purchaser as follows and acknowledges that the
Purchaser is relying on such representations and warranties in connection with its purchase of the
Purchased Shares:
3.1 Organization.
The Vendor is a company incorporated and validly existing under the laws of the Cayman
Islands, B.W.I, and has the power to own the Purchased Shares, to enter into this Agreement and to
perform its obligations hereunder.
3.2 Authorization and Enforceability.
This Agreement has been duly authorized, executed and delivered by the Vendor and is a legal,
valid and binding obligation of the Vendor enforceable against the Vendor by the Purchaser in
accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency and other
laws affecting the rights of creditors generally and except that equitable remedies may be granted
only in the discretion of a court of competent jurisdiction.
3.3 No Other Agreements to Purchase.
No person other than the Purchaser has any written or oral agreement or option or any right
or privilege (whether by law, pre-emptive or contractual) capable of becoming an agreement or
option for the purchase or acquisition from the Vendor of any of the Purchased Shares.
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3.4 Ownership of Purchased Shares.
Save to the extent provided by the relevant custodian and prime brokerage agreements, the
Vendor is the sole beneficial owner of the Purchased Shares, free and clear of all Encumbrances
and, without limiting the generality of the foregoing, none of the Purchased Shares is subject to
any voting trust, shareholder agreement or voting agreement. No person other than the Vendor has a
direct beneficial interest in the Purchased Shares. The Vendor did not acquire the Purchased
Shares in order that the Purchaser might make use of any exemption from the take-over bid
requirements of Canadian provincial securities laws. Save to the extent provided by the relevant
custodian and prime brokerage agreements, the Purchased Shares are not subject to any legal
restrictions on their transferability.
3.5 No Violation.
So far as the Vendor is aware, the execution and delivery of this Agreement by the Vendor and
the consummation of the transactions herein provided for will not result in either:
(a) the breach or violation of any of the provisions of, or constitute a default under, or
conflict with or cause the acceleration of any obligation of the Vendor:
(i) | any Contract to which any the Vendor is a party and which is material to the Vendor or by which it is bound; | ||
(ii) | of any provisions of the constating documents or resolutions of the board of directors (or any committee thereof) or securityholders of the Vendor; | ||
(iii) | any judgment, decree, order or award of any court, governmental body or arbitrator having jurisdiction over the Vendor; | ||
(iv) | any licence, permit, approval, consent or authorization held by the Vendor necessary for the ownership of the Purchased Shares; or | ||
(v) | any applicable law, statute, ordinance, regulation or rule; or |
(b) the creation or imposition of any Encumbrance on any of the Purchased Shares.
3.6 Consents and Approvals.
There is no requirement for the Vendor to make any filing with, give any notice to or to
obtain any licence, permit, certificate, registration, authorization, consent or approval of, any
governmental or regulatory authority as a condition to the lawful sale of the Purchased Shares as
contemplated by this Agreement.
3.7 No Actions, Proceedings.
There is no action, proceeding or investigation (whether or not purportedly on behalf of the
Vendor) pending or, to the knowledge of the senior officers of the Vendor without further inquiry,
threatened, against or affecting the Vendor, at law or in equity, before or by any court or
federal, provincial, municipal or other governmental department, commission, board or
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agency, domestic or foreign, which questions the validity of the purchase and sale of the Purchased
Shares or any action taken or to be taken by the Vendor pursuant to this Agreement,
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND THE
GUARANTOR
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND THE
GUARANTOR
The Purchaser and the Guarantor jointly and severally represent and warrant to the Vendor as
follows and acknowledge that the Vendor is relying on such representations and warranties in
connection with its sale of the Purchased Shares:
4.1 Organization.
The Purchaser is a corporation validly existing under the laws of the Province of Alberta and
has the corporate power to enter into this Agreement and to perform its obligations hereunder. The
Guarantor is validly existing as a public limited company under the laws of England and Wales and
has the corporate power to enter into this Agreement and to perform its obligations hereunder.
4.2 Authorization.
The transaction contemplated by this Agreement has been duly authorized, and this Agreement
has been duly executed and delivered by the Purchaser and is a legal, valid and binding obligation
of the Purchaser, enforceable against the Purchaser by the Vendor in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency and other laws affecting the rights
of creditors generally and except that equitable remedies may be granted only in the discretion of
a court of competent jurisdiction.
4.3 No Violation.
The execution and delivery of this Agreement by the Purchaser and the Guarantor and the
consummation of the transactions herein provided for will not result in either the breach or
violation of any of the provisions of, or constitute a default under, or conflict with or cause
the acceleration of any obligation of the Purchaser or the Guarantor under:
(a) any Contract to which the Purchaser or the Guarantor is a party and which is
material to the Purchaser or the Guarantor, as applicable, or by which either of them is, or
any of
their material properties are, bound;
(b) any confidentiality agreement entered into between the Guarantor or any of its
Affiliates and the Corporation;
(c) any provision of the constating documents, by-laws or resolutions of the board of
directors (or any committee thereof) of the Purchaser or the Guarantor or shareholder of the
Purchaser;
(d) any judgment, decree, order or award of any court, governmental body or
arbitrator having jurisdiction over the Purchaser or the Guarantor;
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(e) any license, permit, approval, consent or authorization held by the Purchaser or
the Guarantor and necessary for the completion of the transaction contemplated by this
Agreement or the operation of the Guarantor’s business; or
(f) any
applicable Law, statute, ordinance, regulation or rule
4.4 Consents and Approvals.
There
is no requirement for the Purchaser or the Guarantor to make any filing with, give any
notice to or to obtain any licence, permit, certificate, registration, authorization, consent or
approval of, any governmental or regulatory authority as a condition to the purchase of the
Purchased Shares except for the requirement to give notice under the Competition Act or receive an
exemption from the requirement to give such notice prior to
purchasing the Purchased Shares. There
is no requirement under any Contract to which the Purchaser or the Guarantor is a party or by which
either of them is bound to give any notice to, or to obtain the consent or approval of, any party
to such agreement, instrument or commitment relating to the purchase of the Purchased Shares by the
Purchaser.
4.5 No Actions, Proceedings.
There is no action, proceeding or investigation (whether or not purportedly on the Guarantor’s
behalf) pending or, to the actual knowledge of the senior officers of the Guarantor without further
inquiry, threatened, against or affecting the Purchaser or the Guarantor, at law or in equity,
before or by any court or federal, provincial, municipal or other governmental department,
commission, board or agency, domestic or foreign, which questions the validity of any action taken
or to be taken by either of them pursuant to this Agreement.
ARTICLE 5
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
5.1 Survival of Representations and Warranties.
To the extent that they have not been fully performed at or prior to the Time of Closing, the
covenants, representations and warranties of the parties contained in this Agreement and any
agreement, instrument, certificate or other document executed or delivered pursuant
hereto, except as otherwise expressly provided in any agreement, instrument, certificate or other
document executed or delivered pursuant to this Agreement, shall survive the closing of the
transactions contemplated hereby until December 31, 2006 and, notwithstanding such closing nor any
investigation made by or on behalf of the Purchaser, shall continue in full force and effect for
the benefit of the Purchaser, in respect of the Vendor, and for the Vendor in respect of the
Purchaser and the Guarantor during such period, except that:
(a) the
representations and warranties set out in section 3.3 and section 3.4 shall
survive and continue in full force and effect without limitation of time; and
(b) a claim for any breach of any of the representations and warranties contained in
this Agreement or in any agreement, instrument, certificate or other document executed or
delivered pursuant hereto involving fraud or fraudulent misrepresentation may be made at any
time following the Closing Date, subject only to applicable limitation periods imposed by law
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ARTICLE6
COVENANTS
COVENANTS
6.1 Conduct Prior to Closing.
Without in any way limiting any other obligations hereunder, during the period from the date
hereof to the Time of Closing, each of the parties hereto shall use its best efforts to take and
cause to be taken all necessary corporate action, steps and proceedings to approve or authorize,
validly and effectively, the completion of the transactions contemplated hereby.
ARTICLE 7
CONDITIONS OF CLOSING
CONDITIONS OF CLOSING
7.1 Conditions of Closing in Favour of the Purchaser.
The purchase and sale of the Purchased Shares is subject to the following terms and conditions
for the exclusive benefit of the Purchaser, to be fulfilled or performed at or prior to the Time of
Closing.
(a) Representations and Warranties. The representations and warranties of the
Vendor contained in this Agreement shall be true and correct in all material respects at each
of the Time of Closing, with the same force and effect as if such representations and warranties
were made at and as of such time;
(b) Covenants. All of the terms, covenants and conditions of this Agreement to be
complied with or performed by the Vendor at or before the Time of Closing shall have been
complied with or performed;
(c) No
Action or Proceeding. At the Time of Closing, (i) no legal or regulatory
action or proceeding shall be pending or threatened by any person to enjoin, restrict or
prohibit
the purchase and sale of any of the Purchased Shares contemplated hereby, and (it) the
Corporation shall not have introduced or announced the introduction of a shareholder rights
plan
or similar agreement or arrangement the result of which would be that on completion of the
purchase by the Purchaser of the Purchased Shares at the Time of Closing, the Guarantor’s or
the
Purchaser’s ownership interests in the Common Shares of the Corporation would be substantially
diluted; and
(d) Canadian
Competition Law. On or prior to the Time of Closing:
(i) | the Competition Commissioner shall have issued an advance ruling certificate (an “ARC”) under section 102 of the Competition Act in respect of the purchase of the Purchased Shares and shall not have subsequently withdrawn or purported to withdraw such ARC or have indicated that she has obtained new information as a result of which she is no longer satisfied that she would not have sufficient grounds on which to apply to the Competition Tribunal under section 92 of the Competition Act with respect to the purchase of the Purchased Shares; or | ||
(ii) |
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(A) | any applicable time period under section 123 of the Competition Act shall have expired or been terminated or waived by the Competition Commissioner or her authorized representative pursuant to section 113{c) of the Competition Act; and | ||
(B) | the Competition Commissioner or her authorized representative shall have advised the Purchaser (on terms and in a form satisfactory to the Purchaser) that the Competition Commissioner does not currently intend to make an application under section 92 of the Competition Act in respect of the purchase of the Purchased Shares and neither the Competition Commissioner nor any of her representatives shall have rescinded or amended such advice. |
If any of the conditions contained in this section 7.1 (to be performed or fulfilled at or
prior to the Time of Closing shall not be performed or fulfilled at or prior to the Time of Closing
to the satisfaction of the Purchaser, acting reasonably, the Purchaser may, by notice to the
Vendor, terminate this Agreement and the obligations of the Vendor and the Purchaser under this
Agreement other than the obligations contained in sections 9.2 and 9 3 shall be terminated. Any of
the foregoing conditions may be waived in whole or in part by the Purchaser without prejudice to
any claims it may have for breach of covenant, representation or
warranty.
7.2 Conditions of Closing in Favour of the Vendor.
The purchase and sale of the Purchased Shares is subject to the following terms and
conditions for the exclusive benefit of the Vendor, to be fulfilled or performed at or prior to
the Time of Closing and the purchase and sale of the Purchased Shares is subject to the following
terms and conditions for the exclusive benefit of the Vendor, to be fulfilled or performed at or
prior to the Time of Closing:
(a) Representations and Warranties. The representations and warranties of the
Purchase and Guarantor contained in this Agreement shall be true and correct in all material
respects at the Time of Closing, with the same force and effect as if such representations and
warranties were made at and as of such time;
(b) Covenants. All of the terms, covenants and conditions of this Agreement to be
complied with or performed by the Purchaser and the Guarantor at or before the Time of Closing
shall have been complied with or performed; and
(c) No Action or Proceeding. No legal or regulatory action or proceeding shall be
pending or threatened by any person to enjoin, restrict or prohibit the purchase and sale of
any of
the Purchased Shares contemplated hereby.
If
any of the conditions contained in this section 7.2 shall not be performed or fulfilled at
or prior to the Time of Closing to the satisfaction of the Vendor, acting reasonably, the Vendor
may, by notice to the Purchaser, terminate this Agreement and the obligations of the Vendor and
the Purchaser under this Agreement other than the obligations contained in sections 9.2 and 9.3
shall be terminated. Any such condition may be waived in whole or in part by the Vendor without
prejudice to any claims it may have for breach of covenant, representation or warranty.
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ARTICLE 8
CLOSING ARRANGEMENTS
CLOSING ARRANGEMENTS
8.1 Place of Closing.
The Closing shall take place at the Time of Closing at the offices of the Guarantor in London,
England.
8.2 Transfer.
At the Time of Closing, upon fulfilment of all the conditions set out in Article 7 the Vendor
shall execute and deliver to the Purchaser all such documents, certificates and instruments and do
all such other acts and things as the Purchaser may consider necessary or desirable, acting
reasonably, to effectively transfer and assign the Purchased Shares to the Purchaser, with a good
and marketable title, free and clear of all Encumbrances, except as contemplated by this Agreement,
and to deliver possession thereof to the Purchaser and the Purchaser shall pay the Purchase Price
by wire transfer of immediately available funds in accordance with the written directions of the
Vendor which shall be provided to the Purchaser within 24 hours of the execution and delivery of
this Agreement
8.3 Further Assurances.
Each party to this Agreement covenants and agrees that, from time to time subsequent to the
Closing Date, it will, at the request and expense of the requesting party, execute and deliver all
such documents, including, without limitation, all such additional conveyances, transfers,
consents and other assurances and do all such other acts and things as any other party hereto,
acting reasonably, may from time to time request be executed or done in order to better evidence
or perfect or effectuate any provision of this Agreement or of any agreement or other document
executed pursuant to this Agreement or any of the respective obligations intended to be created
hereby or thereby.
ARTICLE 9
MISCELLANEOUS
MISCELLANEOUS
9.1 Notices.
(a) Any notice or other communication required or permitted to be given hereunder shall be in
writing and shall be delivered in person, transmitted by telecopy or similar means of recorded
electronic communication or sent by registered mail, charges prepaid, addressed as follows:
(i) | if to the Vendor: | ||
Lansdowne UK Equity Fund Limited c/o Lansdowne Partners Limited Partnership 00 Xxxxxx Xxxxxx Xxxxxx, X0X 0XX |
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Attention: | Xxxx Xxxxxxxx | |||
Telecopier No.: | x00 (0) 00 0000 0000 |
(ii) | if to the Purchaser or the Guarantor | ||
XSTRATA PLC Xxxxxxxxxxxxxx 0, X.X. Xxx 000, XX — 6301 Zug Switzerland |
Attention: | Xxxxx X. Xxxxxx | |||
Chief Legal Counsel | ||||
Telecopier No.: | x0000 000 0000 |
(b) Any such notice or other communication shall be deemed to have been given and
received on the day on which it was delivered or transmitted (or, if such day is not a
Business
Day, on the next following Business Day) or, if mailed, on the third Business Day following
the
date of mailing; provided, however, that if at the time of mailing or within three Business
Days
thereafter there is or occurs a labour dispute or other event which might reasonably be
expected
to disrupt the delivery of documents by mail, any notice or other communication hereunder
shall
be delivered or transmitted by means of recorded electronic communication as aforesaid.
(c) Any party may at any time change its address for service from time to time by
giving notice to the other parties in accordance with this section 9 1.
9.2 Commissions, etc.
The Vendor agrees to indemnify and save harmless the Purchaser from and against all claims,
damages and expenses suffered or incurred by the Purchaser in respect of any commission or other
remuneration payable or alleged to be payable to any broker, agent or other intermediary who
purports to act or have acted for or on behalf of the Vendor.
The Purchaser agrees to indemnify and save harmless the Vendor from and against all claims,
damages and expenses suffered or incurred by the Vendor in respect of any commission or other
remuneration payable or alleged to be payable to any broker, agent or other intermediary who
purports to act or have acted for or on behalf of the Purchaser.
Each party shall be responsible for any expenses incurred by it in connection with this
Agreement.
9.3 Consultation.
The parties shall consult with each other before issuing any press release or making any
other public announcement with respect to this Agreement or the transactions contemplated hereby,
save to the extent that such announcement is required by law, regulation or other statutory or
governmental authority. The parties will use their respective reasonable efforts not to issue any
press releases or other public statements inconsistent with the results of such consultation.
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9.4 Guarantee.
In consideration of the Vendor entering into this Agreement, the Guarantor (as primary obligor
and not merely as surety) hereby irrevocably and unconditionally guarantees the full and timely
performance of all of the obligations of the Purchaser under this Agreement. This guarantee is a
continuing guarantee and shall remain in force until all of the Purchaser’s obligations have been
satisfied in full.
9.5 Best Efforts.
The parties acknowledge and agree that, for all purposes of this Agreement, an obligation on
the pan of any party to use its best efforts to obtain any waiver, consent, approval, permit,
licence or other document shall not require such party to make any payment to any person for the
purpose of procuring the same, other than payments for amounts due and payable to such person,
payments for incidental expenses incurred by such person and payments required by any applicable
law or regulation.
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9.6
Counterparts.
This Agreement may be executed in counterparts, each of which shall constitute an original and
all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF this Agreement has been executed by the parties.
LANSDOWNE UK EQUITY FUND LIMITED, | ||||||
by its investment manager: | ||||||
LANSDOWNE PARTNERS LIMITED PARTNERSHIP, | ||||||
acting by its general partner: | ||||||
LANSDOWNE PARTNERS LIMITED | ||||||
by | /s/ Mr P Xxxxxxx | |||||
Name: | MR P XXXXXXX | |||||
Title: | DIRECTOR | |||||
1184760 ALBERTA LTD. | ||||||
by | /s/ Xxxxx Xxxxxx | |||||
Name: | Xxxxx Xxxxxx | |||||
Title: | President | |||||
XSTRATA PLC | ||||||
by | /s/ Xxxxx Xxxxxx | |||||
Name: | Xxxxx Xxxxxx | |||||
Title: | Chief Legal Counsel |