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EXHIBIT 2
This CONFIDENTIALITY AGREEMENT, dated as of November 17, 1996 is between
Homestake Mining Company, a Delaware corporation having an office at 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000 ("Homestake") and Santa Fe Pacific
Gold Corporation, a Delaware corporation having an office at 0000 Xxxxxx
Xxxxxxxxx XX, Xxxxx 000, Xxxxxxxxxxx, XX 00000 ("Santa Fe").
Purposes of Agreement:
A. Each party is interested in reviewing confidential and proprietary data and
information of the other solely for the purpose of evaluating the possibility of
one or more business transactions between the parties ("Permitted Use") and not
for any other purpose; and
B. Each party is willing to make such data and information available to the
other in confidence to permit the other to make such evaluations and to prepare
for negotiation of such transactions.
Therefore, Homestake and Santa Fe have agreed:
1. (a) "Affiliate" means any person, partnership, joint venture,
corporation or other form of enterprise which directly or indirectly
controls, or is controlled by, or is under common control with, a
party. "Control" means possession, directly or indirectly, of the
power to direct or cause direction of management and policies
through ownership of voting securities, contract, voting trust or
otherwise.
(b) "Discloser" means Homestake or Santa Fe, as the case may be, in
relation to its disclosure of Evaluation Material to the other under
this Agreement.
(c) "Evaluation Material" means all information and data in the
possession or control of Homestake or Santa Fe, as the case may be,
related to its business, properties, operations, assets, liabilities,
prospects and plans. The term includes any oral information or
evaluation about such matters disclosed in connection with this
Agreement, includes samples, and includes information provided in the
course of visits and inspections of properties and operations.
(d) "Publicly Held" means any company or entity which files periodic
reports under Sections 12 or 15 of the Securities Exchange Act of
1934 or whose securities are traded on any domestic or foreign stock
exchange.
(e) "Recipient" means Homestake or Santa Fe, as the case may be, in
relation to its receipt and use of Evaluation Material received from
the other under this Agreement.
(f) "Recipient Evaluation Material" means all analyses, compilations,
studies or other documents prepared by or on behalf of Recipient to
the extent they contain or reflect Evaluation Material disclosed or
made available to Recipient by Discloser under this Agreement.
(g) "Subsidiary" of a corporation means any partnership, joint venture,
corporation or other form of enterprise in which the first
corporation owns or controls, directly or indirectly, a majority of
the voting securities.
2. Each party represents to the other party that:
(i) except as set out in Section 4, it is authorized to enter into and
perform this Agreement;
(ii) except as set out in Section 4, Discloser has the right to disclose
Evaluation Materials to Recipient on the terms of this Agreement
without violating the rights of others and without the necessity of
securing the consent or agreement of any other person, and
Recipient's use and disclosure of Evaluation Material in conformity
with this Agreement will not result in the violation of any
confidentiality, consent or other obligation arising out of any
agreement to which Discloser is a party;
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(iii) except as set out in Section 4, Discloser has the right to
authorize representatives of Recipient to visit and inspect its
properties and operations (including partially owned and joint
venture properties and operations), to receive and inspect
Evaluation Material located at property sites, and to take and
evaluate samples for use under the terms of this Agreement; and
(iv) this Agreement is enforceable against such party in accordance with
the terms hereof.
3. Except as contemplated by Section 4, Discloser agrees at Discloser's
expense to deliver or make available to Recipient, within a reasonable time
after the date of this Agreement, all Evaluation Material reasonably requested
by Recipient, to permit Recipient to visit and inspect Discloser's properties
and operations (including partially owned and joint venture properties and
operations) and to permit Recipient to interview appropriate personnel and
consultants of Discloser who are familiar with its Evaluation Material.
4. (a) Each party acknowledges that the other may owe confidentiality
obligations to third parties with respect to one or more of its
properties or operations as a result of partnerships, ventures and
other relationships and arrangements in which it or its Affiliates
participate or to which it or its Affiliates is a party.
(b) No party shall have any obligation under this Agreement to disclose
any information or data or to permit any visit, inspection or
interview if such (i) would violate any obligation owed to a third
person, (ii) would require such party to pay more than a nominal
amount or assume any new obligation to a third person for the right
to disclose such information or data to the other, or (iii) is not
deemed to be timely or appropriate in the sole discretion of the
Discloser.
(c) Each party shall describe to the other in general terms any
restrictions on its disclosure to the other of Evaluation Material
and, if requested by the other party to do so, shall make reasonable
efforts to obtain any consent required to be obtained from third
parties for disclosure to Recipient and for Recipient's
consideration of such information or data.
(d) Discloser shall indemnify and hold the Recipient harmless against
any and all loss, liability, cost, damage or expense, including
attorneys fees and court costs (collectively "Costs") and any and
all claims, demands, actions or proceedings in respect thereof
(collectively ("Claims") against Recipient by any third person
asserting that disclosure by Discloser to Recipient of Evaluation
Material or Recipient's use of Evaluation Material as authorized by
this Agreement violated such person's rights.
5. Either party may at any time elect to discontinue providing Evaluation
Information and access to properties and operations and to terminate the
Permitted Use of Evaluation Material, effective on the giving of notice thereof
in writing to the other party. Upon the giving of such notice, except as
otherwise provided in this Agreement, the obligations and rights of the parties
to provide and receive Evaluation Material hereunder and the use thereof shall
cease. Such termination shall not otherwise terminate this Agreement or affect
any other rights or obligations under this Agreement.
6. Recipient agrees that Evaluation Material delivered and to be delivered
to it by Discloser will remain the property of Discloser or of any third person
that has an interest in such Material and that delivery of Evaluation Material
to Recipient will give Recipient no right or interest therein other than the
rights of use granted by this Agreement.
7. (a) Neither party makes any representation or warranty, express or
implied, as to the completeness or accuracy of any of its
Evaluation Material, except that it was prepared in good faith, and
neither party shall have any obligation to correct any errors or
omissions in its Evaluation Material.
(b) Neither party shall have any obligation under this Agreement to
prepare any new Evaluation Material or to complete, revise or
update any Evaluation Material.
8. (a) Recipient shall (i) not use or disclose Evaluation Material except
for the Permitted Use and as otherwise provided in this Agreement,
(ii) treat Evaluation Material in the same way Recipient
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treats its own confidential information, and (iii) protect the
Evaluation Material against unauthorized use or disclosure.
(b) Recipient may disclose Evaluation Material to its directors,
officers and employees, to directors, officers and employees of its
Affiliates, and to outside consultants, including but not limited
to lawyers, accountants, investment bankers, geologists, mining
engineers and other consultants ("Consultants"), who participate in
Recipient's evaluation of the Evaluation Material. Recipient shall
advise all such directors, officers, employees and Consultants of
the obligations of this Agreement and shall cause all such
Consultants to agree in writing to the obligations contained in
this Agreement (providing in any such agreement that such
obligations shall be enforceable by Discloser as well as
Recipient).
(c) All such directors, officers, employees and Consultants shall be
informed of and be responsible to comply with the provisions of
this Agreement, and Recipient shall be responsible for any failure
to comply with the provisions of this Agreement by any such
directors, officers, employees and Consultants.
(d) Recipient agrees that Discloser would be irreparably injured by a
breach of this Agreement by Recipient or its directors, officers,
employees or Consultants, that monetary remedies would be
inadequate to protect against any actual or threatened breach of
this Agreement and, without prejudice to any other rights and
remedies otherwise available, Recipient agrees to the granting of
equitable relief, including, without limitation, injunctive relief
and specific performance in favor of the Discloser without proof of
actual damages. Recipient agrees to reimburse Discloser for its
costs and expenses (including, without limitation, reasonable legal
fees and expenses) incurred to remedy any and all breaches of this
Agreement by Recipient or its directors, officers, employees or
Consultants.
(e) Except as otherwise provided in this Agreement, the confidentiality
obligations and limitations on use created by or arising under this
Agreement shall terminate and have no further effect two years
after the date of this Agreement.
9. Notwithstanding Section 8, the confidentiality obligations and
limitations on use imposed by this Agreement shall not prevent use or disclosure
of any information or data which:
(a) Recipient can demonstrate was in its possession or in the
possession of its Affiliates or Consultants at the time of receipt
from Discloser or was thereafter developed by or for Recipient, its
Affiliates or Consultants independent of disclosure by Discloser to
Recipient;
(b) at the time of receipt by Recipient from Discloser or later is or
becomes generally known to or available to geologists,
geophysicists, metallurgists, mining engineers and other persons
knowledgeable in the mining and/or minerals processing industry, in
each case without violation of Recipient's obligations under this
Agreement;
(c) is lawfully disclosed to Recipient or an Affiliate or Consultant by
a third party which does not breach a confidentiality obligation
owed to Discloser by disclosing it to Recipient or such Affiliate
or Consultant; or
(d) is used and disclosed in a transaction permitted by Section
12(b)(iii).
10. Notwithstanding Section 8, Recipient may disclose Evaluation Material
under the following circumstances:
(a) If, in the opinion of its legal counsel, Recipient or an Affiliate
is required by applicable securities laws or stock exchange
regulations to make any disclosure of Evaluation Material,
Recipient will, if reasonably practicable, consult with Discloser
in advance of such disclosure and provide a copy of any proposed
written disclosure. If advance consultation is not reasonably
practicable, Recipient shall advise Discloser of any such
disclosure and provide a copy of any written disclosure as soon as
practicable thereafter.
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(b) Recipient and its Affiliates may disclose Evaluation Material which
is required to be disclosed by any other law or order of any court
or regulatory agency or legislative body, but Recipient shall
notify Discloser of any such legal obligation or order as soon as
practicable after receipt of notice thereof. Recipient shall
provide reasonable cooperation at Discloser's expenses in respect
of any action taken by Discloser to keep such information
confidential, but Recipient shall not be required to take any
action that might reasonably be expected to expose Recipient to
liability or penalty.
(c) Recipient and its Affiliates may disclose Evaluation Material in
connection with any legal proceeding arising in connection with
this Agreement, but any such disclosure shall be subject to such
confidentiality procedures as may be reasonably requested by
Discloser and approved by the court.
11. Promptly upon request by Discloser after notice given by either party
pursuant to Section 5, Recipient shall (i) return all documents containing
Evaluation Material received by it from Discloser, and all copies or
reproductions of such documents, and (ii) destroy all Recipient Evaluation
Material, with such destruction to be certified to Discloser in writing by an
officer of Recipient.
12. (a) In addition to the other obligations imposed by this Agreement,
Recipient covenants that Recipient and its Affiliates will not,
and will use all reasonable efforts to ensure that its directors,
officers, employees and Consultants to whom Evaluation Material
has been disclosed do not for a period of one year after the date
of this Agreement:
(i) directly or indirectly purchase, sell or otherwise trade in
any of the equity securities of Discloser or any publicly
held Affiliate of Discloser or any right or option related
thereto ("Securities");
(ii) make or in any way participate, directly or indirectly, in
any proxy solicitation with respect to Discloser or any
publicly held Affiliate of Discloser;
(iii) make a tender offer to shareholders of the Discloser or any
publicly held Affiliate of Discloser, or propose a
transaction to shareholders of the Discloser or any
publicly held Affiliate of Discloser involving a merger,
combination or amalgamation, or disposition of
substantially all of the assets, directly or indirectly, of
Discloser or any publicly held Affiliate of Discloser and
Recipient or an exchange of Securities between them; or
(iv) act alone or with others to seek to control the management,
board of directors or policies of Discloser or any publicly
held Affiliate of Discloser, in each case, without first
receiving Discloser's prior written consent. This Section
12(a) shall not be deemed to prevent outside consultants
(such as lawyers and investment bankers) from participation
in any such transactions as advisors to others if such
outside consultants have established and implemented all
necessary procedures to ensure that no Evaluation Material
not described in Section 9 is used in connection with any
such transaction.
(b) None of the provisions of this Agreement shall be deemed to
prohibit any of the following transactions by such persons if such
transaction would not otherwise violate any applicable law:
(i) the disposition of outstanding Securities of Discloser or
any publicly held Affiliate of Discloser held on the date of
this Agreement (or subsequently acquired in a transaction
not in violation of this Agreement), or the acquisition of
up to a total of 5% of the outstanding Securities of
Discloser or any publicly held Affiliate of Discloser in the
ordinary course by any such persons;
(ii) the indirect acquisition of any such Securities by such
persons which results from the acquisition of securities or
assets of any other person, partnership, joint venture,
corporation or other form of enterprise;
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(iii) any transaction described in Section 12(a) in respect of
Discloser or a publicly held Affiliate of Discloser (a
"Target Company") if there has been an offer, or public
announcement of a proposal to make an offer, to acquire 15%
or more of the Securities of the Target Company or
involving a merger, combination or amalgamation, or
disposition of substantially all of the assets, directly or
indirectly, of Target Company or an exchange of Securities
of Target Company by any person who is not an Affiliate of
Recipient. For purposes of this Section 12(b), an offer by
a Target Company to acquire other companies or entities or
the assets thereof shall be deemed to be a combination to
which this paragraph (iii) applies if, on successful
completion of such offer, the shareholders of the Target
Company at the time of the making of the offer would own
less than a majority of the outstanding Securities of the
Target Company.
(c) Recipient shall advise any person to whom Recipient may disclose
Evaluation Material of the constraints imposed by this Section, and
shall advise each such person that it is bound by all such
constraints and that violations of the covenants in this Section may
give rise to liability to Discloser under this Agreement. Recipient
shall also advise any such persons of their potential liability for
use of Evaluation Material in violation of "xxxxxxx xxxxxxx"
provisions of applicable securities laws and regulations.
(d) Recipient agrees that Discloser would be irreparably injured by a
breach of this Agreement by Recipient or its directors, officers,
employees or Consultants, that monetary remedies would be inadequate
to protect against any actual or threatened breach of this Agreement
and, without prejudice to any other rights and remedies otherwise
available, Recipient agrees to the granting of equitable relief,
including, without limitation, injunctive relief and specific
performance in favor of the Discloser without proof of actual
damages. Recipient agrees to reimburse Discloser for its costs and
expenses (including, without limitation, reasonable legal fees and
expenses) incurred to remedy any and all breaches of this Agreement
by Recipient or its directors, officers, employees or Consultants.
13. If Recipient desires to visit, and the Discloser allows the visit of,
any property or operations of Discloser, the provisions of this Section 13 shall
apply.
(a) Discloser shall use reasonable efforts to arrange a site visit in
the company of a representative of Discloser. Discloser shall be
solely responsible for all arrangements with the management of such
property.
(b) By arranging such visits, Discloser represents that it has the right
to authorize representatives of Recipient to enter the property, to
inspect Evaluation Material located on the property, and to take and
evaluate samples for use under the terms of this Agreement.
(c) Each party shall bear its own costs and expenses incurred in
connection with such site visits.
(d) Recipient shall indemnify and hold Discloser and Discloser's
Affiliates, officers, directors, employees, agents, consultants and
advisors and each and every partner, venturer or other person having
an interest in such mines, operations or properties harmless from
any and all Costs and any Claims which Discloser may incur or which
may be asserted against Discloser arising out of or related to:
(i) any act or omission by or on behalf of the Recipient related
to any such a visit; or,
(ii) any injury to the person or property of any officer,
director, employee, agent or advisor of Recipient making
such a visit unless resulting from the willful misconduct
or gross negligence of Discloser or Discloser's Affiliates,
officers, directors, employees, agents and advisors or
other indemnitees.
14. If any Claims are brought or asserted against any indemnitee under
Section 4(d) or under Section 13(e) in respect of which indemnity is sought
against an indemnitor, the indemnitee shall promptly
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notify indemnitor in writing, and indemnitor shall have the right to assume the
defense thereof, with counsel chosen by indemnitor. If indemnitor elects to
assume the defense, indemnitor shall bear all resulting fees and expenses. If
indemnitor fails to assume the defense within a reasonable time after timely
notice by the indemnitee, indemnitor shall promptly reimburse indemnitee for all
reasonable fees and expenses incurred by indemnitee in connection with the
defense. Indemnitor shall not be required to indemnify indemnitee for any
settlement made without its written consent.
15. (a) Except as used and disclosed in a transaction permitted by Section
12(b)(iii) or to the extent required by applicable law or by the
rules of any stock exchange on which securities of a party or an
Affiliate are listed or traded, neither party shall disclose or
permit any of its Affiliates to disclose (i) any information
regarding any possible business transaction between the parties
including, but not limited to, the occurrence of any
investigations, discussions, negotiations or other contacts with
regard to a possible combination; (ii) the existence of this
Agreement; or (iii) the transactions contemplated by this
Agreement, nor issue any press release or public statement
mentioning the name of the other party or any Affiliate of the
other party, without the prior consent of the other party. Any
party proposing to make any such disclosure shall first consult
with the other party unless such prior consultation is
impracticable.
(b) As soon as practicable after issuance of any press or other public
statement by a party or an Affiliate of a party referring to this
Agreement or mentioning the name of the other party or any
Affiliate of the other party, the issuer shall by telecopier send
a copy of such release as issued in final form to the Chief
Financial Officer of the other party.
16. All notices required or contemplated by this Agreement shall be in
writing and shall be deemed received:
(i) when delivered in person;
(ii) three business days after deposited in the United States mail,
postage prepaid, by registered or certified mail; or
(iii) one day after sent by telecopier or other electronic means
providing reasonable proof of receipt, addressed to Homestake,
as follows:
Homestake Mining Company
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: President and Chief Executive Officer
Telecopy: (000) 000-0000
and addressed to Santa Fe, as follows:
Santa Fe Pacific Gold Corporation
0000 Xxxxxx Xxxxxxxxx XX, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: President and Chief Executive Officer
Telecopy: (000) 000-0000
Each party may change the address to which notices shall be sent from time to
time by giving the other party notice of change in accordance with this Section.
17. Except as specifically contemplated hereby, no person shall be a third
party beneficiary of this Agreement. The acknowledgment in this Agreement of the
rights of others in Evaluation Material shall not be interpreted as affording
such persons any right to enforce this Agreement, nor as preventing the parties
from amending or terminating this Agreement.
18. Nothing in this Agreement shall impose any obligation on any party to
negotiate or execute any agreement for any transaction. Each party shall have
the right to execute and consummate any transaction
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with others without first notifying the other party or affording the other party
any right of first refusal or other opportunity to participate in such a
transaction. Each party assumes the risk that no transaction contemplated by
this Agreement will be consummated.
19. Except as otherwise expressly provided in this Agreement, each party
will bear all expenses incurred by it in connection with this Agreement,
including but not limited to legal fees and fees of investment bankers and
brokers employed by such party, whether or not any transactions contemplated by
this Agreement are consummated, whatever the reason.
20. This Agreement has been negotiated by the parties at arm's-length.
Nothing in this Agreement shall be interpreted to create between the parties,
expressly or by implication, any partnership, joint enterprise, relationship of
trust and confidence or other special relationship, or any relationship of
principal and agent.
22. This Agreement contains the entire agreement of the parties related to
the subject matter hereof, and is in lieu of confidentiality obligations and use
of information limitations that may otherwise exist at law or mining industry
practice. No promise, inducement or agreement, express or implied, not herein
expressed has been made or given or relied upon by either party as consideration
for this Agreement. There are no conditions, agreements, representations,
warranties or understandings, express or implied, except as set forth herein.
23. This agreement is governed by the internal law of the State of
Delaware, without regard to any conflict of law principles.
24. In any legal disputes arising in connection with this agreement, the
prevailing party shall be entitled to recover all Costs, including attorneys
fees.
25. This Agreement and the rights and obligations created by this
Agreement may not be assigned by any party (except by operation of law in the
case of merger, consolidation or amalgamation) without the written consent of
the other party in its absolute discretion, and any assignment in violation of
this Agreement is absolutely void and not just voidable.
HOMESTAKE MINING COMPANY
Dated: November 17, 1996 By: /s/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx
President and
Chief Executive Officer
SANTA FE PACIFIC GOLD CORPORATION
Dated: November 17, 1996 By: /s/ P.M. XXXXX
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P. M. Xxxxx
Chairman, President and
Chief Executive Officer
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