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EXHIBIT E
Form of Company Affiliate Agreement
Dear Sirs:
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"), Havana Acquisition Inc., a Delaware corporation and a
direct, wholly owned subsidiary of Parent ("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:
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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 has not, within the 30 days prior
to the Closing Date, effected 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
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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 undesigned 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 of outstanding shares of Company Common
Stock, or equivalent post-merger Parent Common Stock, owned by the undersigned
and all other stockholders 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
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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
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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.
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,
Dated:
Accepted and Agreed:
XXXXXXX GOLD CORPORATION
by
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Name:
Title:
HOMESTAKE MINING COMPANY
by
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Name:
Title:
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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 Havana Acquisition Inc., 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]
