EXHIBIT 1
EXECUTION COPY
XXXXXXX GOLD CORPORATION
AND
XXXXXXX GOLD FINANCE COMPANY
Debt Securities
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Underwriting Agreement
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November 8, 2004
To the Underwriters named in Schedule I hereto
Ladies and Gentlemen:
Xxxxxxx Gold Corporation, an Ontario corporation (the "Parent"), and
Xxxxxxx Gold Finance Company (the "Company"), a Nova Scotia unlimited liability
company and a wholly owned indirect subsidiary of the Parent, propose to issue
and sell to the firms named in Schedule I hereto (the "Underwriters") an
aggregate of US$200,000,000 in principal amount of the Parent's 5.80% notes due
2034 (the "Tranche A Notes"), US$200,000,000 in principal amount of the
Company's 5.80% notes due 2034 (the "Tranche B Notes") and US$350,000,000 in
principal amount of the Company's 4.875% notes due 2014 (the "Tranche C Notes"),
respectively. The Tranche A Notes, the Tranche B Notes and the Tranche C Notes
are collectively referred to herein as the "Notes". The Tranche B Notes and the
Tranche C Notes will be fully and unconditionally guaranteed as to payment of
principal, premium, if any, and interest by the Parent pursuant to the Indenture
(as defined below) and guarantees (the "Guarantees") endorsed on the
certificates evidencing the Tranche B Notes and Tranche C Notes, respectively.
The Notes and the Guarantees are collectively referred to herein as the
"Securities". Xxxxxx Xxxxxxx & Co. Incorporated and Deutsche Bank Securities
Inc. shall act as representatives (individually, a "Representative" and
collectively, the "Representatives") of the several Underwriters. The Securities
are to be issued pursuant to the provisions of an indenture, to be dated as of
November 12, 2004 (the "Indenture") among the Parent, the Company, Xxxxxxx Gold
Inc. ("BGI") and JPMorgan Chase Bank as trustee (the "Trustee").
1. The Parent and the Company, jointly and severally, represent and
warrant to, and agree with, each of the Underwriters that:
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(a) Each of the Parent and, in respect of the Tranche B Notes and the
Tranche C Notes, the Company meets the requirements under the Securities Act
(Ontario) and the rules, regulations and national, multijurisdictional or local
instruments and published policy statements applicable in the Province of
Ontario, including the rules and procedures established pursuant to National
Instrument 44-101 - Short Form Prospectus Distributions, for the distribution of
securities by way of short form prospectus and National Instrument 44-102 -
Shelf Distributions, for the distribution of securities on a continuous or
delayed basis (the "Shelf Procedures") pursuant to a final short form shelf
prospectus with respect to the Securities (collectively, the "Ontario Securities
Laws"); a (final) short form base shelf prospectus for the Company and amended
and restated short form base shelf prospectus for the Parent (collectively, the
"final and amended and restated short form base shelf prospectus") have been
filed with the Ontario Securities Commission (the "Reviewing Authority") as the
review jurisdiction under National Instrument 44-101 in respect of the offering
of the Securities; a receipt has been obtained from the Reviewing Authority in
respect of such final and amended and restated final short form base shelf
prospectus and any amendment thereto, each in the form heretofore delivered or
to be delivered to the Representatives for each of the Underwriters (together
with all documents filed in connection therewith and all documents incorporated
by reference therein); no other document pertaining to such final and amended
and restated short form base shelf prospectus, amendment thereto or document
incorporated by reference therein has been filed or transmitted for filing with
the Reviewing Authority except for any documents heretofore delivered to the
Representatives for each of the Underwriters; no order having the effect of
ceasing or suspending the distribution of the Securities has been issued by the
Reviewing Authority and no proceeding for that purpose has been initiated or, to
the best of the Parent's or the Company's knowledge, threatened by the Reviewing
Authority (the final and amended and restated short form base shelf prospectus,
as most recently amended, if applicable, filed with the Reviewing Authority on
or before the date of this Agreement for which a receipt has been obtained, and
including the documents incorporated therein by reference, being hereinafter
called, collectively, the "Canadian Prospectus"; and any reference to the
Canadian Prospectus herein shall be deemed to refer to the Canadian Prospectus
as amended or supplemented in relation to the Securities, in the form in which
it is filed with the Reviewing Authority pursuant to the Shelf Procedures and
Ontario Securities Laws in accordance with Section 5(a) hereof including any
documents then incorporated by reference therein);
(b) Each of the Parent and the Company meets the general eligibility
requirements for use of Form F-9 under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), has filed a registration statement on Form F-9
(File No. 333-106592) (the "First Registration Statement") and post-effective
amendments Nos. 1 and 2 thereto and a registration statement on Form F-9 (File
No. 333-120133) (the "Second Registration Statement") providing for the
registration of the debt securities and guarantees of the Parent, and the debt
securities of the Company and BGI, including the Securities, under the
Securities Act and the rules and regulations of the Securities and Exchange
Commission (the "Commission") thereunder, has filed an appointment of agent for
service of process on Form F-X (the "Form F-X") in conjunction with the filing
of such registration statement with the Commission and has caused the Trustee to
prepare and file with the Commission a Form T-1 (the "Form T-1"); such
registration statements and any post-effective amendment thereto, in each case
including the Canadian Prospectus (with such deletions therefrom and additions
thereto as are permitted or required by Form F-9 and the applicable rules and
regulations of the Commission), each in the
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form heretofore delivered or to be delivered to the Representatives, including
all documents incorporated by reference in the prospectus contained therein,
have become effective pursuant to Rule 467 under the Securities Act in such
form; no other document with respect to such registration statements or document
incorporated by reference therein has heretofore been filed or transmitted for
filing with the Commission and no other document incorporated by reference in
the prospectus contained therein has heretofore been filed with the Reviewing
Authority, except for any documents filed with the Commission or the Reviewing
Authority subsequent to the date of such effectiveness in the form heretofore
delivered to the Representatives for each of the Underwriters; no stop order
suspending the effectiveness of such registration statements has been issued and
no proceeding for that purpose has been initiated or, to the best of the
Parent's or the Company's knowledge, threatened by the Commission (the First
Registration Statement, as amended, and the Second Registration Statement, in
each case including all exhibits thereto and the documents incorporated by
reference therein at the respective times such registration statements became
effective and in the event of any post-effective amendment, as of the date of
the effectiveness of such amendment, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities, in the form
in which it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being hereinafter called
the "Prospectus"; any reference herein to the Canadian Prospectus or the
Prospectus or to any preliminary prospectus or preliminary prospectus supplement
shall be deemed to refer to and include the documents incorporated by reference
therein as of the date of such Canadian Prospectus or Prospectus or such
preliminary prospectus or preliminary prospectus supplement, as the case may be;
any reference to any amendment or supplement to the Canadian Prospectus or the
Prospectus or to any further amendment or supplement to the Canadian Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed
after the date of such Canadian Prospectus or Prospectus, as the case may be,
and prior to the Time of Delivery (as defined in Section 4 hereof) under Ontario
Securities Laws or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as the case may be, and incorporated by reference in such
Canadian Prospectus or Prospectus, as the case may be; and any reference to the
"Prospectus as amended or supplemented" shall be deemed to refer to the
Prospectus as amended or supplemented by the prospectus supplement relating to
the offering of the Securities containing pricing information, in the form first
provided to the Underwriters for use in confirming sales of the Securities,
including any documents incorporated by reference therein as of the date of such
prospectus supplement);
(c) The documents incorporated by reference in the Canadian Prospectus,
when they were filed with the Reviewing Authority, conformed in all material
respects to the requirements of Ontario Securities Laws as interpreted and
applied by the Reviewing Authority, and none of such documents, as of their
respective dates, contained an untrue statement of material fact or omitted to
state a material fact required to be stated therein or that was necessary to
make a statement therein not misleading in light of the circumstances under
which it was made; and any further documents so filed and incorporated by
reference in the Canadian Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Reviewing Authority, will
conform in all material respects to the requirements of Ontario Securities Laws
as interpreted and applied by the Reviewing Authority and will not contain an
untrue statement of material fact or omit to state a material fact required to
be stated therein or that is necessary to make a statement therein not
misleading in light of the circumstances under which it was made; the documents
incorporated by reference in the Prospectus when they were filed with the
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Commission, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made, and any further documents
so filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents are filed with the
Commission, will conform in all material respects with the requirements of the
Securities Act and the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made; provided, however, that
this representation and warranty shall not apply to any statements or omissions
contained in a supplement to the Canadian Prospectus or the Prospectus relating
to the Securities made in reliance upon and in conformity with information
furnished in writing to the Parent by or on behalf of an Underwriter of the
Securities through the Representatives expressly for use in the Canadian
Prospectus or Prospectus as amended or supplemented;
(d) The Canadian Prospectus, the Registration Statement, each Form F-X
and the Prospectus conform, the Prospectus as amended or supplemented will
conform and any further amendments or supplements to the Canadian Prospectus,
the Registration Statement or the Prospectus will conform, in all material
respects with the applicable requirements of Ontario Securities Laws, the
Securities Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission under the
Securities Act and the Trust Indenture Act; the Registration Statement and any
amendment thereto, as of their applicable effective dates, did not and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and the Canadian Prospectus and the Prospectus as amended or
supplemented and any further amendments or supplements to the Canadian
Prospectus or the Prospectus, as of their respective dates, did not, do not and
will not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and the Canadian
Prospectus as of its filing date constituted full, true and plain disclosure of
all material facts relating to the Securities within the meaning of the
Securities Act (Ontario); provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Parent by an
Underwriter of the Securities through the Representatives expressly for use in
the Canadian Prospectus or the Prospectus as amended or supplemented;
(e) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the Parent
and its subsidiaries, considered as one enterprise, from that set forth in or
contemplated by the Prospectus as amended or supplemented (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement);
(f) Each of the Parent, the Company, BGI and each "significant
subsidiary" (as defined in Rule 1-02(w) of Regulation S-X under the Securities
Act) (the "Significant Subsidiaries") of the Parent has been duly incorporated
and is validly existing as a corporation in good standing
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under the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus as amended or supplemented and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except as would not have a material adverse effect on the
condition (financial or otherwise), earnings, business or operations of the
Parent and its subsidiaries considered as one enterprise (a "Material Adverse
Effect");
(g) The authorized capital of the Parent consists of (a) an unlimited
number of common shares, (b) an unlimited number of first preferred shares,
issuable in series of which one has been designated as first preferred shares,
series C special voting share, and an unlimited number of second preferred
shares, issuable in series. As of September 30, 2004, the Parent had 531,696,502
common shares, one first preferred share series C special voting share and no
second preferred shares outstanding;
(h) The authorized capital of the Company consists of 100,000,000
common shares. As of September 30, 2004, the Company had 1,334,800 common shares
outstanding. All of the Company's shares are held by the Parent and its
affiliates;
(i) The Tranche A Notes have been duly authorized by the Parent and, at
the Time of Delivery, when authenticated in accordance with the provisions of
the Indenture, will have been duly executed and delivered by the Parent and will
constitute valid and legally binding obligations of the Parent, enforceable
against it in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general principles of equity
and will be entitled to the benefits provided by the Indenture; the Tranche B
Notes have been duly authorized by the Company and, at the Time of Delivery,
when authenticated in accordance with the provisions of the Indenture, will have
been duly executed and delivered by the Company and will constitute valid and
legally binding obligations of the Company, enforceable against it in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity and will be entitled to
the benefits provided by the Indenture; the Guarantees in respect of the Tranche
B Notes have been duly authorized by the Parent and, when the Tranche B Notes
have been authenticated in accordance with the provisions of the Indenture, the
Guarantees will have been duly executed, endorsed and delivered by the Parent
and will constitute valid and legally binding obligations of the Parent,
enforceable against it in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity and will be entitled to the benefits provided by the
Indenture; the Tranche C Notes have been duly authorized by the Company and, at
the Time of Delivery, when authenticated in accordance with the provisions of
the Indenture, will have been duly executed and delivered by the Company and
will constitute valid and legally binding obligations of the Company,
enforceable against it in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity and will be entitled to the benefits provided by the
Indenture; the Guarantees in respect of the Tranche C Notes have been duly
authorized by the Parent and, when the Tranche C Notes have been authenticated
in accordance with the provisions of the Indenture,
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the Guarantees will have been duly executed, endorsed and delivered by the
Parent and will constitute valid and legally binding obligations of the Parent,
enforceable against it in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity and will be entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized by the Parent, the Company and
BGI and duly qualified under the Trust Indenture Act; the Indenture complies
with all of the requirements of the Business Corporations Act (Ontario),
including the requirement that the Trustee be resident or authorized to do
business in the Province of Ontario; and, at the Time of Delivery, the Indenture
will have been duly executed and delivered by the Parent, the Company and BGI
and will constitute a valid and legally binding instrument of the Parent, the
Company and BGI, enforceable against them in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
principles of equity; no registration, filing or recording of the Indenture
under the laws of Canada or any province thereof is necessary in order to
preserve or protect the validity or enforceability of the Indenture or the
Securities issued thereunder; and the Indenture conforms, and the Securities
will conform, to the descriptions thereof contained in the Prospectus as amended
or supplemented;
(j) The issue and sale of the Securities, the execution and delivery of
and the compliance by the Parent and the Company with all of the provisions of
the Securities, the Indenture, and this Agreement, and the consummation of the
transactions herein and therein contemplated and the execution and delivery of
and compliance by BGI with all of the provisions of the Indenture will not
result in any violation of the provisions of the articles, by-laws or other
constating documents of the Parent, the Company or BGI and, except as would not
individually or in the aggregate have a Material Adverse Effect, the issue and
sale of the Securities, the execution and delivery of and the compliance by the
Parent and the Company with all of the provisions of the Securities, the
Indenture, and this Agreement and the consummation of the transactions herein
and therein contemplated and the execution and delivery of and compliance by BGI
with all of the provisions of the Indenture will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or the Parent or any of its
subsidiaries is a party or by which the Company or the Parent or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or the Parent or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or the Parent or any of its subsidiaries or any of their properties
("Governmental Agency"); and no consent, approval, authorization, order,
registration, clearance or qualification of or with any such Governmental Agency
("Governmental Authorization") is required for the issue and sale of the
Securities or the consummation by the Parent and the Company of the transactions
contemplated by this Agreement or the Indenture, except such as have been, or
will have been prior to the Time of Delivery, obtained under the laws of the
provinces and territories of Canada, the Securities Act and the Trust Indenture
Act and such Governmental Authorizations as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Securities by the Underwriters;
(k) None of the Parent, any of its Significant Subsidiaries or the
Company is in violation of its articles, by-laws or other constating documents
and neither the Parent nor any of its
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subsidiaries is in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except as would not
individually or in the aggregate have a Material Adverse Effect;
(l) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of Debt Securities and the
Guarantees" and "Description of the Notes", insofar as they purport to
constitute a summary of the terms of the Securities or the Indenture, are fair
and adequate summaries of the matters referred to therein;
(m) The Parent or one of its subsidiaries holds freehold title, mining
leases, mining claims or other conventional proprietary interests or rights
recognized in the jurisdiction in which each property described in the
Prospectus as amended or supplemented is located, in the ore bodies and mineral
inventories and the milling, smelting and refining facilities as described in
the Prospectus as amended or supplemented (and all properties respectively
relating thereto) under valid, subsisting and enforceable title documents,
contracts, leases, licenses of occupation, mining concessions, permits, or other
recognized and enforceable instruments and documents, sufficient to permit the
Parent or one of its subsidiaries, as the case may be, to explore for, extract,
exploit, remove, process or refine the minerals relating thereto, except where
the failure to so hold such interests or rights would not have a Material
Adverse Effect. In addition, the Parent or one of its subsidiaries has all
necessary surface rights, water rights and rights in water, rights of way,
licenses, easements, ingress, egress and access rights, and all other presently
required rights and interests granting the Parent or one of its subsidiaries, as
the case may be, the rights and ability to explore for, mine, extract, remove or
process the minerals derived from the ore bodies and mineral inventories
described in the Prospectus as amended or supplemented or to transport for
refinement or market or distribute the ore and metals produced at the milling,
smelting and refining facilities described in the Prospectus as amended or
supplemented, all as referred to in the Prospectus as amended or supplemented,
with only such exceptions as are described in the Prospectus as amended or
supplemented or as do not have a Material Adverse Effect. Each of the
aforementioned interests and rights is currently in good standing except for
those interests and claims which, if not kept in good standing, would not have a
Material Adverse Effect;
(n) The Parent has filed with the Reviewing Authority all of the
technical reports required to be filed under National Instrument 43-101 -
Standards of Disclosure for Mineral Projects in respect of each property
material to the Parent and all public disclosure made by the Parent regarding
its material properties complies with the requirements of that National
Instrument;
(o) Except as disclosed in the Prospectus as amended or supplemented or
except as, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect, (A) the Parent and its subsidiaries have complied with all
Environmental Laws, (B) neither the Parent nor any of its subsidiaries has
received notice of any failure to comply with all Environmental Laws, and (C)
the Parent and its subsidiaries do not produce or manage any Materials of
Environmental Concern in violation of Environmental Laws.
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For the purposes of this subsection, the following terms shall have the
following meaning: "Environmental Laws" means any and all laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, requirements of any
Governmental Agency or other Requirements of Law (including common law)
regulating, relating to or imposing liability or standards of conduct concerning
protection of the environment including, without limitation, liabilities and
responsibilities in respect of the discharge, emission, deposit, release,
handling, storage, transport and remediation of Materials of Environmental
Concern, as now or may at any time hereafter be in effect. "Materials of
Environmental Concern" means any gasoline or petroleum (including crude oil or
any fraction thereof) or petroleum products, contaminants, pollutants or any
hazardous or toxic substances, materials or wastes or other substances defined
or regulated as such in or under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation. "Requirements of Law" means the certificate of incorporation and
by-laws or other organizational or governing documents of the Parent and its
subsidiaries, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Agency, in each case binding upon
the Parent, any of its subsidiaries or any of their property.
(p) Other than as set forth in the Prospectus as amended or
supplemented, there are no legal or governmental proceedings pending to which
the Parent or any of its subsidiaries is a party or of which any property of the
Parent or any of its subsidiaries is the subject which would reasonably be
expected to result in a Material Adverse Effect; and, to the Parent's knowledge,
no such proceedings are threatened or contemplated by any Governmental Agency or
threatened by others;
(q) Each of the Parent, the Company and BGI is not, and, after giving
effect to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus as amended or supplemented will
not be, required to register as an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(r) To the best of the Parent's knowledge, PricewaterhouseCoopers LLP,
who have reported on the financial statements of the Parent and its subsidiaries
incorporated by reference in the Prospectus as amended or supplemented, are
independent with respect to the Parent within the meaning of the Business
Corporations Act (Ontario) and the Ontario Securities Laws and are independent
public accountants as required by the Securities Act and the rules and
regulations of the Commission thereunder; and
(s) This Agreement has been duly authorized, executed and delivered by
each of the Parent and the Company.
2. (a) Each of the Parent and the Company is advised by the
Representatives that the Underwriters propose to make a public offering of their
respective portions of the Securities as soon after this Agreement has been
entered into as in the Representatives' judgment is advisable. The terms of the
public offering of the Securities are as set forth in the Prospectus as amended
or supplemented.
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(b) Each of the Underwriters, severally and not jointly, covenants to
the Parent and the Company that any and all of the underwriting services to be
rendered by it pursuant to this Agreement, being those services to which the
underwriting commission referred to in Section 3 relates, shall be provided
wholly outside of Canada. Each of the Underwriters, severally and not jointly,
also agrees with the Parent and the Company that any selling agreement or
similar agreement with respect to the Securities will require each dealer or
other party thereto to make an agreement to the same effect as clauses (i) and
(ii) of the preceding sentence.
(c) Each of the Underwriters, severally and not jointly, agrees with
the Parent and the Company that it will not sell any Securities purchased by it
from the Parent and the Company, respectively, pursuant to this Agreement in any
province or territory of Canada unless the sale is made (i) through an
appropriately registered dealer or in accordance with an exemption from the
dealer registration requirements of applicable securities laws; and (ii)
pursuant to an exemption from the prospectus requirements of applicable
securities laws.
3. On the basis of the representations and warranties contained in this
Agreement, and subject to the terms and conditions contained herein, (i) the
Parent agrees to issue and sell, and each Underwriter agrees, severally and not
jointly, to purchase from the Parent at a purchase price of 99.296% of the
principal amount thereof the aggregate principal amount of Tranche A Notes set
forth opposite the name of such Underwriter in Schedule I hereto, (ii) the
Company agrees to issue and sell, and each Underwriter agrees, severally and not
jointly, to purchase from the Company at a purchase price of 99.296% of the
principal amount thereof the aggregate principal amount of the Tranche B Notes
set forth opposite the name of such Underwriter in Schedule I hereto and (iii)
the Company agrees to issue and sell, and each Underwriter agrees, severally and
not jointly, to purchase from the Company at a purchase price of 99.538% of the
principal amount thereof the aggregate principal amount of the Tranche C Notes
set forth opposite the name of such Underwriter in Schedule I hereto. As
compensation for the Underwriters' several commitments to purchase the Tranche A
Notes from the Parent, the Parent will pay to the Underwriters an underwriting
commission of 0.875% of the aggregate principal amount of the Tranche A Notes
purchased by such Underwriters. As compensation for the Underwriters' several
commitments to purchase the Tranche B Notes from the Company, the Company will
pay to the Underwriters an underwriting commission of 0.875% of the aggregate
principal amount of the Tranche B Notes purchased by such Underwriters. As
compensation for the Underwriters' several commitments to purchase the Tranche C
Notes from the Company, the Company will pay to the Underwriters an underwriting
commission of 0.650% of the aggregate principal amount of the Tranche C Notes
purchased by such Underwriters.
4. Payment of each of the purchase price for and the underwriting
commission in respect of and the delivery of the Notes shall be made at the
offices of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, or such other location as may be
mutually acceptable. Such delivery and payments shall be made at 9:00 a.m. New
York City time, on November 12, 2004 or at such other time on the same date or
such other date as shall be agreed upon by the Representatives and the Parent in
writing, but in any event, shall be no later than five business days after the
date of this Agreement. The time and date of such delivery and the payment for
the Securities and of the underwriting commission in respect thereof are herein
called the "Time of Delivery."
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Certificates (in denominations of US$1,000 or integral multiples
thereof) in definitive global form in respect of the Notes (the "Global Notes"),
registered in the name of Cede & Co., as nominee of the Depository Trust Company
("DTC"), with, in the case of each of the Tranche B Notes and the Tranche C
Notes, Guarantees duly endorsed thereon having an aggregate principal amount
corresponding to the respective aggregate principal amount of the Notes of each
tranche, shall be delivered by the Parent and the Company to the Representatives
(or as the Representatives direct), together with payment by wire transfer of an
amount equal to the aggregate underwriting commission in respect thereof,
against payment by the Underwriters of the purchase price thereof by wire
transfer to bank accounts located in the United States of each of the Parent and
the Company, as applicable. The Global Notes shall be made available to the
Underwriters for inspection not later than 9:30 a.m., New York City time, on the
business day immediately preceding the Closing Date.
5. The Parent and Company, jointly and severally, agree with each of
the Underwriters:
(a) To prepare the supplement to the Canadian Prospectus and the
Prospectus in relation to the Securities in a form approved by the
Representatives and (i) to file such supplement with the Reviewing Authority in
accordance with the Shelf Procedures not later than the Reviewing Authority's
close of business on the second business day following the execution and
delivery of this Agreement relating to the Securities and (ii) to file the
Prospectus as amended or supplemented with the Commission pursuant to General
Instruction II.K. of Form F-9 not later than the Commission's close of business
on the business day following the date of filing of the supplement referred to
in clause (i) above with the Reviewing Authority; except as required by
applicable law, to make no further amendment or any supplement to the Canadian
Prospectus, the Registration Statement or Prospectus as amended or supplemented
after the date of this Agreement and prior to the Time of Delivery for such
Securities unless such amendment or supplement is approved by the
Representatives promptly after reasonable notice thereof, provided, however,
such approval shall not be unreasonably withheld; to advise the Representatives
promptly of any such amendment or supplement relating to such Securities after
the date of this Agreement and furnish the Representatives with copies thereof;
to file promptly all reports required to be filed by the Parent and the Company
with the Reviewing Authority pursuant to Ontario Securities Laws and the
Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act for so
long as the delivery of a prospectus is required in connection with the offering
or sale of such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time when any
amendment to the Canadian Prospectus has been filed or receipted, when any
supplement to the Canadian Prospectus has been filed, when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or the Prospectus as amended or supplemented has been filed with
the Reviewing Authority or the Commission, of the issuance by the Reviewing
Authority or the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Reviewing Authority or the Commission for the
amending or supplementing of the Canadian Prospectus, the Registration Statement
or the Prospectus or the Prospectus as amended or supplemented or for additional
information relating to the Securities; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use of any
prospectus relating to the
10
Securities or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions in the United States as
the Representatives may reasonably request to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions for
as long as reasonably required to complete the distribution of such Securities,
provided that in connection therewith neither the Parent nor the Company shall
be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the second New York
trading day succeeding the date of this Agreement, to furnish the Underwriters
with copies of the Prospectus as amended or supplemented in New York City and in
such other cities, in each case in such quantities as the Representatives may
from time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the Securities
and if at such time any event shall have occurred as a result of which the
Prospectus as amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such Prospectus as amended or supplemented is delivered, not misleading,
or, if for any other reason it shall be necessary during such same period to
amend or supplement the Prospectus as amended or supplemented or to file under
Ontario Securities Laws or the Exchange Act any document incorporated by
reference in the Prospectus as amended or supplemented in order to comply with
Ontario Securities Laws, the Securities Act, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and, upon their request, to file
such document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as the Representatives may from time
to time reasonably request of an amendment or a supplement to the Prospectus as
amended or supplemented which will correct such statement or omission or effect
such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date (as defined in Rule 158(c) under the Securities Act) of the Second
Registration Statement, an earnings statement of the Parent and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder (including Rule 158);
and
(e) During the period beginning on the date hereof and continuing to
and including the Time of Delivery, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Parent, the Company or BGI or
warrants to purchase debt securities of the Parent, the Company or BGI
substantially similar to the Securities (other than the Securities), without the
prior written consent of the Representatives.
6. The Parent and the Company, jointly and severally, covenant and
agree with the several Underwriters that the Parent or the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the
Parent and the Company's counsel and accountants in connection with the filing
of the Canadian Prospectus with the Reviewing Authority, the registration of the
Securities under the Securities Act, the listing of any Securities
11
on a stock exchange or automated quotation system and all other expenses in
connection with the preparation, printing and filing of the Canadian Prospectus,
the Registration Statement, any preliminary prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) all expenses in connection with
the qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification under state securities laws and in connection with any Blue Sky
Memoranda; (iii) any fees charged by securities rating services for rating the
Securities; (iv) any filing fees incident to, and the reasonable fees and
disbursements of counsel for the Underwriters in connection with, any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (v) the cost of preparing the Securities; (vi) the
fees and expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (vii) all other costs and expenses incident to the
performance of their respective obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make, including the
expenses of any "tombstone advertisement" related to the offering of the
Securities; provided, however, that no such tombstone advertisement shall be
published without the prior approval of the Parent, which approval shall not be
unreasonably be withheld.
7. The obligations of the Underwriters under this Agreement shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Parent and the
Company in this Agreement are, at and as of the Time of Delivery for the
Securities, true and correct, the condition that each of the Parent and the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) The Canadian Prospectus as amended or supplemented in relation
to the Securities shall have been filed with the Reviewing Authority under the
Shelf Procedures and (ii) the Prospectus as amended or supplemented in relation
to the Securities shall have been filed with the Commission pursuant to General
Instruction II.K. of Form F-9 under the Securities Act, in each case within the
applicable time period prescribed for such filing thereunder and in accordance
with Section 5(a) hereof; no order having the effect of ceasing or suspending
the distribution of the Securities or stop order suspending the effectiveness of
the Registration Statement or any part thereof or having the effect of
preventing or suspending the use of the Canadian Prospectus or Prospectus as
amended or supplemented shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Reviewing Authority or
the Commission; and all requests for additional information on the part of the
Reviewing Authority or the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Sidley Xxxxxx Xxxxx & Xxxx LLP, United States counsel for the
Underwriters, shall have furnished to the Representatives their written opinion,
dated the Time of Delivery, with respect to this Agreement, the Securities, the
Registration Statement, the Prospectus as well as
12
such other related matters as the Representatives may reasonably request. Sidley
Xxxxxx Xxxxx & Xxxx LLP may limit their opinion to matters arising under the
laws of the State of New York and the federal laws of the United States of
America;
(c) Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, Canadian counsel for the
Parent and the Company, shall have furnished to the Representatives their
written opinion, dated the Time of Delivery to the effect that:
(i) The Parent is a corporation existing under the laws of the
Province of Ontario;
(ii) The Parent has the corporate power and authority
necessary to own, lease and operate its properties and carry on its
business as described in the Prospectus as amended or supplemented and
to execute, deliver and perform its obligations under the Underwriting
Agreement, the Indenture, the Tranche A Notes and the Guarantees;
(iii) The Parent and the Company are eligible to file a short
form shelf prospectus with respect to the Securities under the Ontario
Securities Laws, and the Indenture complies with all of the
requirements of the Business Corporations Act (Ontario), including the
requirement that the trustee under the Indenture be resident or
authorized to do business in the Province of Ontario;
(iv) The authorized capital of the Parent consists of (a) an
unlimited number of common shares, (b) an unlimited number of first
preferred shares, issuable in series of which one has been designated
as first preferred shares, series C special voting share, and (c) an
unlimited number of second preferred shares, issuable in series. As of
September 30, 2004, the Parent had 531,696,502 common shares, one first
preferred share series C special voting share and no second preferred
shares outstanding;
(v) All necessary corporate action has been taken by the
Parent to authorize the execution and delivery of the Underwriting
Agreement by the Parent and the performance of its obligations
thereunder and the Underwriting Agreement, to the extent execution and
delivery are matters governed by the laws of the Province of Ontario,
has been duly executed and delivered by the Parent;
(vi) All necessary corporate action has been taken by the
Parent and BGI to authorize the execution and delivery of the Indenture
by the Parent and BGI and the performance of their obligations
thereunder and the Indenture, to the extent execution and delivery are
matters governed by the laws of the Province of Ontario, has been duly
executed and delivered by the Parent and BGI;
(vii) All necessary corporate action has been taken by the
Parent to authorize the execution and delivery of the Tranche A Notes
by the Parent and the performance of its obligations thereunder and the
Tranche A Notes, to the extent execution and delivery are matters
governed by the laws of the Province of Ontario, have been duly
executed and delivered by the Parent;
13
(viii) All necessary corporate action has been taken by the
Parent to authorize the execution and delivery of the Guarantees and
the performance of its obligations thereunder, and the Guarantees
endorsed on the certificates representing the Tranche B Notes and the
Tranche C Notes, to the extent execution and delivery are matters
governed by the laws of the Province of Ontario, have been duly
executed and delivered by the Parent;
(ix) The execution and delivery of the Underwriting Agreement
and the Indenture by the Parent, the execution, delivery, issuance and
sale of the Tranche A Notes and the execution, delivery and issuance of
the Guarantees by the Parent and the performance by the Parent of its
obligations under the Underwriting Agreement, the Indenture, the
Tranche A Notes and the Guarantees and the execution, delivery and
performance of the Indenture by BGI do not contravene:
A. any provision of applicable laws of the Province of
Ontario or any federal laws of Canada applicable therein,
B. the articles of incorporation or bylaws of the Parent or
BGI,
C. the agreements or instruments set forth in Schedule A to
such counsel's opinion (which schedule shall list all
agreements and instruments of the Parent and any
subsidiary of the Parent governed by the laws of the
Province of Ontario and all indentures relating to public
offerings in the United States or private placements in
the United States made pursuant to Rule 144A of the
Securities Act completed by the Parent or any subsidiary,
in each case, which have been identified by the Parent as
being material to the Parent and its subsidiaries,
considered as one enterprise; provided that in the event
that the laws of a jurisdiction other than Ontario are
the governing law of any such agreement, instrument or
indenture, such counsel shall be entitled to assume that
the meaning that would be given to the terms used in such
agreement, instrument or indenture would be the same as
the meaning given to such terms under the laws of the
Province of Ontario), or
D. any judgment, order or decree listed in Schedule B to
such counsel's opinion (which schedule shall list all
judgments, orders and decrees against the Parent and any
subsidiary of the Parent of any Canadian federal or
Ontario governmental body, agency or court having
jurisdiction over the Parent or any of its subsidiaries
which have been identified by the Parent as being
material to the Parent and its subsidiaries, considered
as one enterprise);
(x) The execution and delivery of the Underwriting Agreement
and the Indenture by the Company, the execution, delivery, issuance and
sale of the Tranche B Notes and the Tranche C Notes by the Company and
the performance by the Company of
14
its obligations under the Underwriting Agreement, the Indenture, the
Tranche B Notes and the Tranche C Notes do not contravene:
A. the agreements or instruments set forth in Schedule A to
such counsel's opinion (which schedule shall list all
agreements and instruments of the Parent and any
subsidiary of the Parent governed by the laws of the
Province of Ontario and all indentures relating to public
offerings in the United States or private placements in
the United States made pursuant to Rule 144A of the
Securities Act completed by the Parent or any subsidiary,
in each case, which have been identified by the Parent as
being material to the Parent and its subsidiaries,
considered as one enterprise; provided that in the event
that the laws of a jurisdiction other than Ontario are
the governing law of any such agreement, instrument or
indenture, such counsel shall be entitled to assume that
the meaning that would be given to the terms used in such
agreement, instrument or indenture would be the same as
the meaning given to such terms under the laws of the
Province of Ontario), or
B. any judgment, order or decree listed in Schedule B to
such counsel's opinion (which schedule shall list all
judgments, orders and decrees against the Parent and any
subsidiary of the Parent of any Canadian federal or
Ontario governmental body, agency or court having
jurisdiction over the Company or any of its subsidiaries
which have been identified by the Parent as being
material to the Parent and its subsidiaries, considered
as one enterprise);
(xi) Except as have been obtained or made under the Ontario
Securities Laws, no consent, approval, authorization or order of, or
filing with, any court or public, governmental or regulatory agency or
body of the Province of Ontario is required to be obtained or made by
the Parent or BGI under applicable laws in Ontario in connection with
A. the issuance, offering and sale of the Tranche A Notes or
the Guarantees by the Parent or the Tranche B Notes or
the Tranche C Notes by the Company to the Underwriters
pursuant to the Underwriting Agreement, or the
performance by the Parent or the Company of its
respective obligations under the Underwriting Agreement,
B. the execution and delivery by the Parent and the Company
of the Underwriting Agreement or the Indenture and the
performance by the Parent and the Company of their
respective obligations thereunder, or
15
C. the execution and delivery by BGI of the Indenture and
the performance by BGI of its obligations thereunder;
(xii) The statements as to matters of the federal laws of
Canada set out in the Prospectus as amended or supplemented and the
Canadian Prospectus under the heading "Canadian Federal Income Tax
Considerations" and the statements as to matters of the federal laws of
Canada set out in the Prospectus as amended or supplemented and the
Canadian Prospectus under the heading "Enforceability of Judgments" are
accurate in all material respects, subject to the limitations and
qualifications stated or referred to in the Prospectus as amended or
supplemented and the Canadian Prospectus;
(xiii) No withholding tax imposed under the federal laws of
Canada or the laws of the Province of Ontario will be payable in
respect of the payment or crediting of the commissions contemplated by
this Agreement by the Parent or the Company, as the case may be, to an
Underwriter that is not a resident of Canada for the purposes of the
Income Tax Act (Canada), or on any interest or deemed interest on the
resale of Securities by an Underwriter to U.S. residents, provided that
the Underwriter deals at arm's length with the Parent or the Company,
as the case may be, (as such term is understood for purposes of the
Income Tax Act (Canada)) and that such commissions are payable in
respect of services rendered by the Underwriter wholly outside of
Canada that are performed in the ordinary course of business carried on
by the Underwriter that includes the performance of such services for a
fee;
(xiv) No goods and services tax imposed under the federal laws
of Canada or provincial taxes under the laws of the Province of Ontario
will be payable by the Parent or the Company, as the case may be, or
collectable by an Underwriter in respect of the payment of commissions
as contemplated by this Agreement to an Underwriter that is not a
resident of Canada, provided that such commissions are in respect of
services performed by the Underwriter wholly outside of Canada or the
resale of Securities by an Underwriter to U.S. residents;
(xv) No stamp duty, documentary taxes or similar taxes are
payable by the Parent or the Company, as the case may be, under the
federal laws of Canada or the laws of the Province of Ontario in
connection with the sale and delivery of the Securities pursuant to
this Agreement by the Underwriters or the resale of Securities by an
Underwriter to U.S. residents;
(xvi) The Canadian Prospectus (excluding the financial
statements and other financial or statistical data contained or
incorporated by reference therein or omitted therefrom, as to which
such counsel need express no opinion) complies as to form in all
material respects with the requirements, including the Shelf
Procedures, of the Ontario Securities Laws as interpreted and applied
by the Reviewing Authority, except in those respects for which
exemptive relief has been obtained from the Reviewing Authority;
(xvii) The documents incorporated by reference in the Canadian
Prospectus, as amended or supplemented (excluding the financial
statements and other financial or statistical data contained or
incorporated by reference therein or omitted therefrom, as to
16
which such counsel need express no opinion), when they were filed with
the Reviewing Authority under the Ontario Securities Laws, complied as
to form in all material respects with the requirements of the Ontario
Securities Laws as interpreted and applied by the Reviewing Authority,
except in those respects for which exemptive relief has been obtained
from the Reviewing Authority;
(xviii) To the knowledge of such counsel, no order having the
effect of ceasing or suspending the distribution of the Securities has
been issued by the Reviewing Authority and no proceedings for that
purpose have been instituted or are pending or contemplated;
(xix) Insofar as matters of Ontario law are concerned, the
Registration Statement and each amendment thereto filed on or before
the date of such opinion and the filing of the Registration Statement
and each amendment thereto filed on or before the date of such opinion
with the Commission have been duly authorized by and on behalf of the
Parent and BGI; and the Registration Statement and each amendment
thereto filed on or before the date of such opinion has been duly
executed pursuant to such authorization by and on behalf of the Parent
and BGI;
(xx) To the best knowledge of such counsel: (a) there are no
reports or other information that in accordance with the published
requirements of the Reviewing Authority must be made publicly available
in connection with the offering of the Securities that have not been
made available as required; and (b) there are no documents required to
be filed with the Reviewing Authority in connection with the Canadian
Prospectus that have not been filed as required;
(xxi) No registration, filing or recording of the Indenture
under the laws of the Province of Ontario, or under the federal laws of
Canada applicable therein, is necessary in order to preserve or protect
the validity or enforceability of the Indenture or the Securities
issued thereunder;
(xxii) In any proceeding brought before a court of competent
jurisdiction in the Province of Ontario (an "Ontario Court") for the
enforcement of the Underwriting Agreement, the Indenture or the
Securities, the laws of the State of New York ("New York Law") would be
applied by such Ontario Court, in accordance with the choice of New
York Law as the governing law of the Underwriting Agreement, Securities
and the Indenture, to all issues which under the conflict of laws rules
of the Province of Ontario are to be determined in accordance with the
proper law of a contract, provided that:
A. such choice of New York Law is bona fide and legal and
there is no reason for avoiding the choice on the grounds
of public policy, as such criteria are interpreted under
Ontario conflict of laws rules; and
B. in any such proceeding such Ontario Court:
I. will not take judicial notice of the provisions of
New York Law and will only apply such provisions to
the extent that they are proven to its satisfaction
by expert testimony;
17
II. will apply the laws of the Province of Ontario and
the federal laws of Canada applicable therein
(collectively, "Ontario Law") that under Ontario Law
would be characterized as procedural and will not
apply any New York Law that under Ontario Law would
be characterized as procedural;
III. will apply provisions of Ontario Law that have
overriding effect (that is, laws that an Ontario
Court is required to apply notwithstanding the
governing law of the Underwriting Agreement, the
Indenture or the Securities), as interpreted under
Ontario Law, provided, however that assuming that
the meaning that would be given to the terms used in
the Underwriting Agreement, the Indenture and the
Securities under New York Law would be the same as
the meaning given to such terms under Ontario Law,
none of the provisions of the Underwriting
Agreement, the Indenture or the Securities would
violate any such provisions of Ontario Law;
IV. will not apply any New York Law that under Ontario
Law would be characterized as a revenue,
expropriatory, penal or other public law;
V. will not enforce the performance of any obligation
provided for in the Underwriting Agreement, the
Indenture or the Securities if such performance is
illegal under the laws of any jurisdiction in which
such obligation is to be performed; and
VI. will not apply New York Law to the extent that its
application would be contrary to public policy, as
such term is interpreted under Ontario Law ("Public
Policy") provided, however, that assuming that the
meaning that would be given to the terms used in the
Underwriting Agreement, the Indenture and the
Securities under New York Law would be the same as
the meaning given to such terms under Ontario Law,
none of the provisions of the Underwriting
Agreement, the Indenture or the Securities would
violate Public Policy.
(xxiii) An Ontario Court would give a judgment in Canadian
dollars at an exchange rate determined in accordance with the Courts of
Justice Act (Ontario) based upon a final and conclusive in personam
judgment of a U.S. federal or New York State court located in the State
of New York (a "New York Court") for a sum certain, obtained against
the Parent or the Company with respect to a claim pursuant to the
18
Underwriting Agreement, Securities or the Indenture (a "New York
Judgment"), without reconsideration of the merits, if:
A. the New York Court had jurisdiction over the Parent or
the Company, as the case may be, as recognized under
Ontario Law for purposes of enforcement of foreign
judgments (submission to the non-exclusive jurisdiction
of the New York Court by the Parent and the Company and
appointment by the Parent and the Company of an agent for
service of process pursuant to Section 14 of the
Underwriting Agreement and Section 113 of the Indenture
would be recognized by such Ontario Court as conferring
jurisdiction on the New York Court, and the Ontario Court
would give effect to such appointment);
B. such New York Judgment was:
I. not obtained by fraud, or in any manner contrary to
the principles of natural justice (such New York
Judgment would not be contrary to natural justice by
reason only that service of process in the
proceedings before the New York Court was effected
on the agent for service of process appointed by the
Parent or the Company, as the case may be);
II. not for a claim in respect of any law of any
jurisdiction which under Ontario Law would be
characterized as a revenue, expropriatory, penal or
other public law;
III. not contrary to Public Policy, or contrary to any
order made by the Attorney General of Canada under
the Foreign Extraterritorial Measures Act (Canada)
or by the Competition Tribunal under the Competition
Act (Canada) in respect of certain judgments
referred to therein; and
IV. subsisting and unsatisfied and not void or voidable
under New York Law; and
C. there has been compliance with the Limitations Act, 2002
(Ontario), which has the effect that any action to
enforce such New York Judgment must be commenced within
two years of the date of such New York Judgment;
provided that:
A. such Ontario Court has discretion to stay or decline to
hear an action on the New York Judgment if the New York
Judgment is under appeal, or there is another subsisting
judgment in Ontario,
19
New York or any other jurisdiction relating to the same
cause of action as the New York Judgment; and
B. an action in Ontario on the New York Judgment may be
affected by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally.
(xxiv) BGI is a corporation existing under the laws of the
Province of Ontario;
(xxv) BGI has the corporate power and authority necessary to
own, lease and operate its properties and conduct its business as
described in the Prospectus as amended or supplemented.
(xxvi) The authorized capital of BGI consists of (a) an
unlimited number of Class A common shares, (b) an unlimited number of
Class B common shares, (c) an unlimited number of exchangeable shares,
(d) an unlimited number of third preference shares, issuable in series,
of which 10,000,000 have been designated as third preference shares,
series 1, and (e) an unlimited number of fourth preference shares. As
of September 30, 2004, the BGI had 100,000 Class A common shares,
3,465,892 exchangeable shares (including those held by BGI and the
Company), 103,986,397 Class B common shares, no third preference shares
and 576,403,096 fourth preference shares were outstanding;
(xxvii) Such counsel shall state in a separate letter that,
although they have not checked the accuracy, completeness or fairness
of, or otherwise verified, and they are not passing upon and do not
assume any responsibility or liability for the accuracy, completeness
or fairness of the statements or information contained in the Canadian
Prospectus, the Registration Statement or the Prospectus as amended or
supplemented, other than information which constitutes matters or
conclusions of Ontario law or the federal laws of Canada applicable in
Ontario as to which such counsel is giving an express opinion pursuant
to Section 7(c), no facts came to their attention which gave such
counsel reason to believe that (a) the Canadian Prospectus (except for
the financial statements and other financial or statistical data
included or incorporated therein or omitted therefrom, as to which such
counsel need express no opinion), at the time it was filed with the
Reviewing Authority or as of the Time of Delivery, contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances under which they were
made, (b) the Second Registration Statement (except for the financial
statements and other financial or statistical data included or
incorporated therein or omitted therefrom, as to which such counsel
need express no opinion), as of its effective date, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances under which they were made, or (c) the
Prospectus as amended or supplemented (except for the financial
statements and other financial or statistical data included or
incorporated therein or omitted therefrom, as to which such counsel
need express no opinion), as of its date or as of the Time of Delivery,
contained or contains an untrue statement of a material fact or omitted
or omits to state a
20
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances under which they were
made.
(d) XxXxxxx Xxxxxx, Nova Scotia counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time of
Delivery to the effect that:
(i) The Company is a corporation existing as an unlimited
company under the laws of the Province of Nova Scotia;
(ii) The Company has the corporate power and authority
necessary to own, lease and operate its properties and carry on its
business as described in the Prospectus as amended or supplemented and
to execute, deliver and perform its obligations under the Underwriting
Agreement, the Indenture, the Tranche B Notes and the Tranche C Notes;
(iii) The authorized capital of the Company consists of
100,000,000 common shares. As of September 30, 2004, the Company had
1,334,800 common shares outstanding. All of the Company's shares are
held of record by the Parent and its affiliates;
(iv) All necessary corporate action has been taken by the
Company to authorize the execution and delivery of the Underwriting
Agreement by the Company and the performance of its obligations
thereunder and the Underwriting Agreement, to the extent execution and
delivery are matters governed by the laws of the Province of Nova
Scotia, has been duly executed and delivered by the Company;
(v) All necessary corporate action has been taken by the
Company to authorize the execution and delivery of the Indenture by the
Company and the performance of its obligations thereunder and the
Indenture, to the extent execution and delivery are matters governed by
the laws of the Province of Nova Scotia, has been duly executed and
delivered by the Company;
(vi) All necessary corporate action has been taken by the
Company to authorize the execution and delivery of the Tranche B Notes
and the Tranche C Notes by the Company and the performance of its
obligations under the Tranche B Notes and the Tranche C Notes, to the
extent execution and delivery are matters governed by the laws of the
Province of Nova Scotia, have been duly executed and delivered by the
Company;
(vii) The execution and delivery of the Underwriting Agreement
and the Indenture by the Company, the execution, delivery, issuance and
sale of the Tranche B Notes and the Tranche C Notes by the Company and
the performance by the Company of its obligations under the
Underwriting Agreement, the Indenture, the Tranche B Notes and the
Tranche C Notes do not contravene
A. any provision of applicable laws of the Province of Nova
Scotia or any federal laws of Canada applicable therein,
B. the memorandum of association or articles of association
of the Company,
21
C. the agreements or instruments set forth in Schedule A to
such counsel's opinion (such opinion shall confirm that
the Company has advised such counsel that such schedule
lists all agreements and instruments of the Company
governed by the laws of the Province of Nova Scotia which
are material to the Company), or
D. any judgment, order or decree listed in Schedule B to
such counsel's opinion (such opinion shall confirm that
the Company has advised such counsel that such schedule
lists all judgments, orders and decrees against the
Company of any governmental body, agency or court in
Canada having jurisdiction over the Company which are
material to the Company);
(viii) Except as have been obtained or made under the Nova
Scotia Securities Laws, no consent, approval, authorization or order
of, or filing with, any court or public, governmental or regulatory
agency or body is required to be obtained or made by the Company under
applicable laws in Nova Scotia in connection with
A. the issuance, offering and sale of the Tranche B Notes or
the Tranche C Notes by the Company to the Underwriters
pursuant to the Underwriting Agreement or the performance
by the Company of its obligations thereunder, or
B. the execution and delivery by the Company of the
Underwriting Agreement or the Indenture or the
performance by the Company of its obligations thereunder;
(ix) No withholding tax imposed under the laws of the Province
of Nova Scotia will be payable in respect of the payment or crediting
of the commissions contemplated by this Agreement by the Company to an
Underwriter that is not a resident of Canada for the purposes of the
Income Tax Act (Canada), or on any interest or deemed interest on the
resale of Tranche B Notes or Tranche C Notes by an Underwriter to U.S.
residents, provided that the Underwriter deals at arm's length with the
Company (as such term is understood for purposes of the Income Tax Act
(Canada)) and that such commissions are payable in respect of services
rendered by the Underwriter wholly outside of Canada that are performed
in the ordinary course of business carried on by the Underwriter that
includes the performance of such services for a fee;
(x) No harmonized sales tax imposed under the laws of the
Province of Nova Scotia will be payable by the Company or collectable
by an Underwriter in respect of the payment of commissions as
contemplated by this Agreement to an Underwriter that is not a resident
of Canada, provided that such commissions are in respect of services
performed by the Underwriter wholly outside of Canada or the resale of
Tranche B Notes or Tranche C Notes by an Underwriter to U.S. residents;
(xi) No stamp duty, documentary taxes or similar taxes are
payable by the Company under the laws of the Province of Nova Scotia in
connection with the sale and
22
delivery of the Tranche B Notes or the Tranche C Notes pursuant to this
Agreement by the Underwriters or the resale of Tranche B Notes or the
Tranche C Notes by an Underwriter to U.S. residents;
(xii) Insofar as matters of Nova Scotia law are concerned, the
Registration Statement and each amendment thereto filed on or before
the date of such opinion and the filing of the Registration Statement
and each amendment thereto filed on or before the date of such opinion
with the Commission have been duly authorized by and on behalf of the
Company; and the Registration Statement and each amendment thereto
filed on or before the date of such opinion has been duly executed
pursuant to such authorization by and on behalf of the Company;
(xiii) No registration, filing or recording of the Indenture
under the laws of the Province of Nova Scotia, is necessary in order to
preserve or protect the validity or enforceability of the Indenture or
the Tranche B Notes or the Tranche C Notes issued thereunder;
(xiv) In any proceeding brought before a court of competent
jurisdiction in the Province of Nova Scotia (a "Nova Scotia Court") for
the enforcement of the Underwriting Agreement, the Indenture or the
Tranche B Notes or the Tranche C Notes, the laws of the State of New
York ("New York Law") would be applied by the Nova Scotia Court, in
accordance with the choice of New York Law as the governing law of the
Underwriting Agreement, the Indenture and the Tranche B Notes or the
Tranche C Notes, to all issues which under the conflict of laws rules
of the Province of Nova Scotia are to be determined in accordance with
the proper law of a contract, provided that:
A. such choice of New York Law is bona fide and legal and
there is no reason for avoiding the choice of law on the
grounds of public policy, as such criteria are
interpreted under Nova Scotia conflict of laws rules; and
B. in any such proceeding the Nova Scotia Court:
I. will not take judicial notice of the provisions of
New York Law and will only apply such provisions to
the extent that they are proven to its satisfaction
by expert testimony;
II. will apply the laws of the Province of Nova Scotia
and the federal laws of Canada applicable therein
(collectively, "Nova Scotia Law") that under Nova
Scotia Law would be characterized as procedural and
will not apply any New York Law that under Nova
Scotia Law would be characterized as procedural;
III. will apply provisions of Nova Scotia Law that have
overriding effect (that is, laws that an Nova Scotia
Court is required to apply notwithstanding the
governing law of the Underwriting Agreement, the
Indenture, the Tranche B Notes,
23
or the Tranche C Notes), as interpreted under Nova
Scotia Law, provided, however, that assuming that
the meaning that would be given to the terms used in
the Underwriting Agreement, the Indenture, the
Tranche B Notes and the Tranche C Notes under New
York Law would be the same as the meaning given to
such terms under Nova Scotia Law, none of the
provisions of the Underwriting Agreement, the
Indenture, the Tranche B Notes or the Tranche C
Notes would violate any such provisions of Nova
Scotia Law;
IV. will not apply any New York Law that under Nova
Scotia Law would be characterized as a revenue,
expropriatory, penal or other public law;
V. will not enforce the performance of any obligation
provided for in the Underwriting Agreement, the
Indenture, the Tranche B Notes or the Tranche C
Notes if such performance is illegal under the laws
of any jurisdiction in which such obligation is to
be performed; and
VI. will not apply New York Law to the extent that its
application would be contrary to public policy, as
such term is interpreted under Nova Scotia Law
("Public Policy") provided, however, that assuming
that the meaning that would be given to the terms
used in the Underwriting Agreement, the Indenture,
the Tranche B Notes and the Tranche C Notes under
New York Law would be the same as the meaning given
to such terms under Nova Scotia Law, none of the
provisions of the Underwriting Agreement, the
Indenture, the Tranche B Notes or the Tranche C
Notes would violate Public Policy.
(xv) A Nova Scotia Court would give a judgment in Canadian
dollars, at a rate of exchange which may be a rate in existence at a
date other than the date of payment, based upon a final and conclusive
in personam judgment of a U.S. federal or New York State court located
in the State of New York (a "New York Court") for a sum certain,
obtained against the Company with respect to a claim pursuant to the
Underwriting Agreement, Tranche B Notes, Tranche C Notes or the
Indenture (a "New York Judgment"), without reconsideration of the
merits, if:
A. the New York Court had jurisdiction over the Company as
recognized under Nova Scotia Law for purposes of
enforcement of foreign judgments (submission to the
non-exclusive jurisdiction of the New York Court by the
Company and appointment by the Company of an agent for
service of process pursuant to Section 14 of the
Underwriting Agreement and Section 113 of the Indenture
24
would be recognized by such Nova Scotia Court as
conferring jurisdiction on the New York Court, and the
Nova Scotia Court would give effect to such appointment);
B. such New York Judgment was:
I. not obtained by fraud, or in any manner contrary to
the principles of natural justice (such New York
Judgment would not be contrary to natural justice by
reason only that service of process in the
proceedings before the New York Court was effected
on the agent for service of process appointed by the
Parent or the Company, as the case may be);
II. not for a claim in respect of any law of any
jurisdiction which under Nova Scotia Law would be
characterized as a revenue, expropriatory, penal or
other public law;
III. not contrary to Public Policy, or contrary to any
order made by the Attorney General of Canada under
the Foreign Extraterritorial Measures Act (Canada)
or by the Competition Tribunal under the Competition
Act (Canada) in respect of certain judgments
referred to therein;
IV. subsisting and unsatisfied and not void or voidable
under New York Law;
V. no new admissable evidence that could not have been
discovered and brought to the attention of the New
York Court through the exercise of reasonable
diligence by the defendant, or any right or defence
to the action accrues or is discovered prior to the
rendering of judgement by the Nova Scotia Court; and
C. there has been compliance with the Limitations Act (Nova
Scotia), which has the effect that any action to enforce
such New York Judgment must be commenced within six years
of the date of such New York Judgment; and
provided that:
(1) such Nova Scotia Court has discretion to stay
or decline to hear an action on the New York
Judgment if the New York Judgment is under
appeal, or there is another subsisting judgment
in Nova Scotia, New York or any other
jurisdiction relating to the same cause of
action as the New York Judgment; and
25
(2) an action in Nova Scotia on the New York
Judgment may be affected by bankruptcy,
insolvency or other similar laws affecting the
enforcement of creditors' rights generally.
(e) Shearman & Sterling LLP, United States counsel for the Parent and
the Company, shall have furnished to the Representatives their written opinion,
dated the Time of Delivery to the effect that:
(i) Each of ABX Financeco Inc. and Xxxxxxx Gold Exploration
Inc. is a corporation duly incorporated, validly existing and in good
standing under the law of the State of Delaware with corporate power
and authority under such law to conduct its business as described in
the Prospectus as amended or supplemented; the Parent is the registered
owner of all of the issued shares of capital stock of ABX Financeco
Inc.; ABX Financeco Inc. is the registered owner of all the issued
shares of capital stock of Xxxxxxx Gold Exploration Inc.;
(ii) The Underwriting Agreement has been duly executed and
delivered by the Parent and the Company;
(iii) The Tranche A Notes have been duly executed by the
Parent and, when authenticated by the Trustee in accordance with the
Indenture and delivered and paid for as provided in the Underwriting
Agreement, the Tranche A Notes will have been duly delivered by the
Parent and will be the legal, valid and binding obligations of the
Parent, enforceable against it in accordance with their terms and
entitled to the benefits of the Indenture;
(iv) The Tranche B Notes have been duly executed by the
Company, and, when authenticated by the Trustee in accordance with the
Indenture and delivered and paid for as provided in the Underwriting
Agreement, the Tranche B Notes will have been duly delivered by the
Parent and will be the legal, valid and binding obligations of the
Company, enforceable against it in accordance with their terms and
entitled to the benefits of the Indenture;
(v) The Tranche C Notes have been duly executed by the
Company, and, when authenticated by the Trustee in accordance with the
Indenture and delivered and paid for as provided in the Underwriting
Agreement, the Tranche C Notes will have been duly delivered by the
Parent and will be the legal, valid and binding obligations of the
Company, enforceable against it in accordance with their terms and
entitled to the benefits of the Indenture;
(vi) The Guarantees have been duly executed by the Parent and
when the Tranche B and Tranche C Notes have been authenticated by the
Trustee in accordance with the Indenture and delivered and paid for as
provided in the Underwriting Agreement, the Guarantees will have been
duly delivered by the Parent and will be the legal, valid and binding
obligations of the Parent, enforceable against it in accordance with
its terms and entitled to the benefits of the Indenture;
26
(vii) The Indenture has been duly executed and delivered by
the Parent, the Company and BGI and is the legal, valid and binding
obligation of the Parent, the Company and BGI, enforceable against the
Parent, the Company and BGI in accordance with its terms;
(viii) The Indenture has been duly qualified under the Trust
Indenture Act;
(ix) The execution and delivery by the Parent and the Company
of the Underwriting Agreement and the performance by the Parent and the
Company of their respective obligations thereunder and the consummation
by the Parent and the Company of the transactions contemplated thereby,
and the execution and delivery of the Indenture by the Parent, the
Company and BGI and the performance by the Parent, the Company and BGI
of their respective obligations thereunder, and the consummation by the
Parent, the Company and BGI of the transactions contemplated thereby,
or the authorization, issuance and delivery of the Securities will not
result in a violation of Generally Applicable Law or any order, writ,
judgment, injunction, decree, determination or award listed in Schedule
A attached to such counsel's opinion (which schedule shall list all
judgments, orders and decrees against the Parent and any subsidiary of
the Parent by any court or governmental agency in the United States
which have been identified by the Parent as being material to the
Parent and its subsidiaries, considered as one enterprise); "Generally
Applicable Law" means the federal law of the United States of America
and the law of the State of New York (including the rules or
regulations promulgated thereunder or pursuant thereto), that a New
York lawyer exercising customary professional diligence would
reasonably be expected to recognize as being applicable to the Parent,
the Company, or BGI, the Underwriting Agreement, the Securities or the
Indenture or the transactions governed by the Underwriting Agreement,
the Securities or the Indenture;
(x) No authorization, approval or other action by, and no
notice to or filing with, any United States federal or New York
governmental authority or regulatory body is required for the issue and
sale of the Securities or the performance by the Parent, BGI and the
Company of the transactions contemplated by the Underwriting Agreement,
the Securities or the Indenture, except as have been obtained and are
in full force and effect under the Securities Act and the Trust
Indenture Act or as may be required under the securities or blue sky
laws of any jurisdiction in the United States in connection with the
offer and sale of the Securities;
(xi) The statements in the Prospectus as amended or
supplemented under the captions "Description of Debt Securities and the
Guarantees", "Description of the Notes", "Underwriting" and "Plan of
Distribution", in each case, insofar as such statements constitute
summaries of documents referred to therein, fairly summarize in all
material respects the documents referred to therein. The statements in
the Prospectus as amended or supplemented under the caption "U.S.
Federal Income Tax Considerations", insofar as such statements
constitute summaries of legal matters referred to therein, fairly
summarize in all material respects the legal matters referred to
therein;
27
(xii) Each of the Parent, the Company and BGI is not, and
after the issuance of the Securities and the use of the proceeds
therefrom as contemplated in the Prospectus as amended or supplemented
will not be, required to register as an "investment company" as such
term is defined in the Investment Company Act;
(xiii) The submission by the Parent and the Company to the
non-exclusive jurisdiction of the U.S. federal and New York State
courts located in the State of New York pursuant to the Underwriting
Agreement and the Indenture is effective, and the appointment of the
agent for service of process pursuant to Section 14 of the Underwriting
Agreement and Section 113 of the Indenture is binding on the Parent and
the Company. Such counsel may note that a court of the State of New
York or the United States of America sitting in New York County has the
power to decline to hear an action based on the Underwriting Agreement
or the Indenture on the ground that the State of New York is an
inconvenient forum;
(xiv) Such counsel shall set forth in the body of such
counsel's opinion letter statements to the effect that (A) the First
Registration Statement was filed with the Commission on June 27, 2003
and the Second Registration Statement was filed with the Commission on
November 1, 2004 and pursuant to Rule 467(a) under the Securities Act,
the First Registration Statement and the Second Registration Statement
each became effective upon the filing thereof with the Commission; (B)
post-effective amendment No. 1 to the First Registration Statement was
filed with the Commission on April 7, 2004 under the Securities Act and
such registration statement became effective upon filing with the
Commission; (C) post-effective amendment No. 2 to the First
Registration Statement was filed with the Commission on November 1,
2004 under the Securities Act and such registration statement became
effective concurrently with the effectiveness of the Second
Registration Statement; (D) a Form F-X of each of the Parent and BGI
and a Form T-1 of the Trustee were filed with the Commission
concurrently with the filing of the First Registration Statement and a
Form F-X of each of the Parent, the Company and BGI and a Form T-1 of
the Trustee were filed with the Commission concurrently with the filing
of the Second Registration Statement; (E) the Prospectus as amended or
supplemented was filed with the Commission in accordance with General
Instruction II.K. of Form F-9 under the Securities Act; and (F) such
counsel was informed telephonically by a member of the staff of the
Commission at approximately 4:00 p.m. (New York time) on the day prior
to the Time of Delivery that there are no stop orders suspending the
effectiveness of the Registration Statement; and
(xv) Such counsel shall state in a separate letter that,
although they do not assume any responsibility for the accuracy,
completeness or fairness of any of the statements made in the
Registration Statement or Prospectus as amended or supplemented, except
as set forth in subparagraph (xi) of such counsel's opinion letter, (i)
assuming the compliance of the Prospectus as amended or supplemented,
including the documents incorporated by reference therein, with the
requirements of the securities laws, rules and regulations of the
Province of Ontario as interpreted and applied by the Ontario
Securities Commission, in such counsel's opinion, the Second
Registration Statement (other than the financial statements and other
financial or statistical data contained therein or omitted therefrom
and the Trustee's Statement of Eligibility on Form
28
T-1, as to which such counsel need express no opinion) as of its
effective date appeared on its face, and the Prospectus as amended or
supplemented (other than the financial statements and other financial
or statistical data contained therein or omitted therefrom, as to which
such counsel need express no opinion) as of its date appeared on its
face to be appropriately responsive in all material respects to the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder; and (ii) no facts came to
their attention which gave such counsel reason to believe that (a) the
Second Registration Statement (other than the financial statements and
other financial or statistical data contained therein or omitted
therefrom and the Trustee's Statement of Eligibility on Form T-1, as to
which such counsel need express no opinion), as of its effective date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or (b) the Prospectus as amended or
supplemented (other than the financial statements and other financial
or statistical data contained therein or omitted therefrom, as to which
such counsel need express no opinion), as of its date or as of the Time
of Delivery, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(f) Xxxxxxx Xxxxx & Xxxxxxx, special Colorado counsel for the Parent
and the Company, shall have furnished to the Representatives their written
opinion, dated the Time of Delivery to the effect that:
(i) Barrick Goldstrike Mines Inc. is a corporation duly
incorporated and validly existing under the laws of the State of
Colorado with corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Prospectus
as amended or supplemented;
(ii) All of the issued shares of capital stock of Barrick
Goldstrike Mines Inc. have been duly and validly authorized and issued
and are fully paid and non-assessable and Xxxxxxx Gold Exploration Inc.
is the registered owner of all such shares;
(g) Xxxxx Xxxx & Co., special Barbados counsel for the Parent and the
Company, shall have furnished to the Representatives their written opinion,
dated the Time of Delivery to the effect that:
(i) Barrick International Bank Corp. is a company duly
organized, validly existing and in good standing under the laws of
Barbados with corporate power and authority to own, lease and operate
its properties and conduct its business as currently conducted;
(ii) All of the issued shares of capital stock of Barrick
International Bank Corp. have been duly and validly authorized and
issued and are fully paid and non-assessable and Barrick Holdings
International Ltd. is the registered owner of all such shares;
29
(h) The Underwriters shall have received on the date of this Agreement
and at the Time of Delivery a letter, dated the date of this Agreement and the
Time of Delivery from the Parent's independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into the
Registration Statement or the Prospectus as amended or supplemented;
(i) Subsequent to the execution and delivery of this Agreement and
prior to the Time of Delivery, there shall not have been any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Parent and its
subsidiaries, considered as one enterprise, from that set forth in or
contemplated by the Prospectus as amended or supplemented (exclusive of any
amendment or supplement thereto subsequent to the date of this Agreement) that
in the reasonable judgment of the Representatives is material and adverse and
that makes it, in the reasonable judgment of the Representatives, impracticable
to market the Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(j) Subsequent to the execution and delivery of this Agreement and
prior to the Time of Delivery, there shall not have occurred any downgrading,
nor shall any notice have been given of any intended downgrading or of any
review with possible negative implications, in the rating accorded any of the
Parent's debt securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(k) The Parent and the Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the Securities a
certificate or certificates of officers of the Parent and the Company
satisfactory to the Representatives as to the accuracy of the representations
and warranties of the Parent and the Company herein at and as of such Time of
Delivery, as to the performance by each of the Parent and the Company of all of
its respective obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsection (a) of this Section and as
to such other matters as the Representatives may reasonably request.
8. (a) The Parent and the Company, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, and each affiliate of any
Underwriter within the meaning of Rule 405 under the Securities Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus or
preliminary prospectus supplement, the Canadian Prospectus (as amended or
supplemented if the Parent or the Company shall have furnished any amendments or
supplements thereto or any further amendments or supplements thereto, as the
case may be) or the Prospectus or the Prospectus as amended or supplemented (in
each case as amended or supplemented or as further amended or supplemented, as
the case may be, if the Parent or the Company shall have furnished any
amendments or supplements thereto or any further
30
amendments or supplements thereto, as the case may be), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Parent in writing
by such Underwriter through the Representatives expressly for use therein,
provided, however, that the foregoing indemnity agreement with respect to any
preliminary prospectus or preliminary prospectus supplement shall not inure to
the benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased the Securities, or any person
controlling such Underwriter or any affiliate of such Underwriter, if a copy of
the Prospectus as amended or supplemented (as then further amended or
supplemented if the Parent or the Company shall have furnished any further
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law to have been delivered, at or
prior to the written confirmation of the sale of the Securities to such person,
and if the Prospectus as amended or supplemented (or as so further amended or
supplemented, if applicable) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result of
non-compliance by the Parent or the Company with Section 5(c) hereof.
(b) Each of the Underwriters agrees, severally and not jointly, to
indemnify and hold harmless the Parent, the Company, each of the directors of
the Parent and the Company, each of the officers of the Parent and the Company
who sign the Registration Statement and each person, if any, who controls the
Parent or the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or preliminary prospectus
supplement, the Canadian Prospectus (as amended or supplemented if the Parent or
the Company shall have furnished any amendments or supplements thereto or any
further amendments or supplements thereto, as the case may be) or the Prospectus
or the Prospectus as amended or supplemented (in each case as amended or
supplemented or as further amended or supplemented, as the case may be, if the
Parent or the Company shall have furnished any amendments or supplements thereto
or any further amendments or supplements thereto, as the case may be), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but only with reference to information relating to such Underwriter furnished to
the Parent or the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, any preliminary
prospectus or preliminary prospectus supplement, the Canadian Prospectus, the
Prospectus or the Prospectus as amended or supplemented or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either Section 8(a) or 8(b), such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
31
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by the Representatives, in the case of parties indemnified pursuant
to Section 8(a) above, and by the Parent or the Company, in the case of parties
indemnified pursuant to Section 8(b) above. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement (i) includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of an indemnified party.
(d) To the extent the indemnification provided for in Section 8(a) or
8(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Parent and the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities or (ii) if
the allocation provided by clause 8(d)(i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause 8(d)(i) above but also the relative fault of the
Parent and the Company on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Parent and the Company on
the one hand and the Underwriters on the other hand in connection with the
offering of the Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Notes (before
deducting expenses) received by the Parent and the Company and the total
underwriting commissions received by the Underwriters, in each case as set forth
in the table on the cover of the Prospectus as amended or supplemented, bear to
the aggregate public offering price of the Securities as set forth on such cover
page. The relative fault of the Parent and the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things,
32
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Parent or the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective principal amounts of Notes they have purchased hereunder, and not
joint. The obligations of the Parent and the Company to contribute pursuant to
this Section 8 and joint and several.
(e) The Parent, the Company and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
8 and the representations, warranties and other statements of the Parent and the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter, any person controlling
any Underwriter or any affiliate of any Underwriter or by or on behalf of the
Parent, the Company, the officers or directors of the Parent and the Company or
any person controlling the Parent or the Company and (iii) acceptance of and
payment for any of the Securities.
9. The Representatives may terminate this Agreement by notice given by
the Representatives to the Parent and the Company, if (a) after the execution
and delivery of this Agreement and prior to the Time of Delivery (i) trading
generally shall have been suspended or materially limited on, or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
Nasdaq National Market, the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange, the Chicago Board of Trade or the Toronto Stock Exchange,
(ii) trading of any securities of the Parent shall have been suspended on any
exchange or in any over-the-counter market, (iii) a material disruption in
securities settlement, payment or clearance services in the United States,
Canada or the Province of Ontario shall have occurred, (iv) any moratorium on
commercial banking activities shall have been declared by U.S. Federal or New
York State, Canadian or the Province of Ontario authorities or (v) there shall
have occurred any outbreak or escalation of hostilities, or any change in
financial markets or any calamity or crisis that, in the judgment of the
Representatives, is material and adverse and (b) in
33
the case of any of the events specified in (a)(i) through (v), such event,
singly or together with any other such event makes it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offer, sale or
delivery of the Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented.
10. If, on the Time of Delivery, any one or more of the Underwriters
shall fail or refuse to purchase Notes that it has or they have agreed to
purchase hereunder on such date, and the aggregate amount of Notes which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate amount of the Notes to be purchased
on such date, the other Underwriters shall be obligated severally in the
proportions that the aggregate amount of Notes set forth opposite their
respective names in Schedule I to this Agreement bears to the aggregate amount
of Notes set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Representatives may specify, to purchase the
Notes which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the aggregate
amount of Notes that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 10 by an amount in excess of
one-ninth of such amount of Notes without the written consent of such
Underwriter. If, at the Time of Delivery, any Underwriter or Underwriters shall
fail or refuse to purchase Notes and the aggregate amount of Notes with respect
to which such default occurs is more than one-tenth of the aggregate amount of
Notes to be purchased on such date, and arrangements satisfactory to the
Representatives, the Parent and the Company for the purchase of such Notes are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, the Parent or
the Company. In any such case either the Representatives, the Parent or the
Company shall have the right to postpone the Time of Delivery, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement, the Canadian Prospectus or the Prospectus as amended or
supplemented or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
11. If this Agreement shall be terminated pursuant to Sections 9 or 10
hereof, neither the Parent nor the Company shall be under any liability to any
Underwriter under this Agreement except as provided in Sections 6 and 8 hereof,
but if this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Parent or the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Parent or the Company shall be unable to perform their
obligations under this Agreement, the Parent or the Company, jointly and
severally, will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder, but neither the Parent nor the Company
shall then be under further liability to any Underwriter under this Agreement
except as provided in Section 6 and 8 hereof.
12. This Agreement may be signed in two or more counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
34
13. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
14. Each of the Parent and the Company irrevocably (i) agrees that any
legal suit, action or proceeding against the Parent or the Company brought by
any Underwriter or by any person who controls any Underwriter or by any
affiliate of any Underwriter arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any federal or state court
in the State of New York, (ii) waives, to the fullest extent it may effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any such action, suit or proceeding and the defence of an inconvenient forum
and (iii) irrevocably submits to the non-exclusive jurisdiction of such courts
in any such suit, action or proceeding. Each of the Parent and the Company
represents and warrants that it has appointed CT Corporation System, New York,
New York, as its authorized agent (the "Authorized Agent", which term, as used
herein, includes any successor in such capacity) upon whom process may be served
in any such action, suit or proceeding arising out of or based on this Agreement
or the transactions contemplated hereby which may be instituted in any federal
or state court in the State of New York by any Underwriter or by any person who
controls any Underwriter or by any affiliate of any Underwriter, expressly
consents to the jurisdiction of any such court in respect of any such action,
suit or proceeding, and waives any other requirements of or objections to
personal jurisdiction with respect thereto. Such appointment shall be
irrevocable. If for any reason CT Corporation System (or successor agent for
this purpose) shall cease to act as agent for service of process as provided
above, each of the Parent and the Company agrees to promptly appoint a successor
agent for this purpose reasonably acceptable to you. The Parent and the Company,
jointly and severally, represent and warrant that the Authorized Agent has
agreed to act as such agent for service of process and agree to take any and all
action, including the filing of any and all documents and instruments, that may
be necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such service
to the Parent or the Company (mailed or delivered to it c/o the Parent's
Secretary at the Parent's principal office in Xxxxxxx, Xxxxxxx, Xxxxxx) shall be
deemed, in every respect, effective service of process upon the Parent or the
Company, respectively.
15. In all dealings hereunder, the Representatives of the Underwriters
shall act on behalf of each of such Underwriters, and the parties hereto shall
be entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by such Representatives.
16. In respect of any judgment or order given or made for any amount
due hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Parent and the Company, jointly and
severally, will indemnify each Underwriter, each person who controls any
Underwriter and each affiliate of any Underwriter against any loss incurred by
such Underwriter, such controlling person or such affiliate, as the case may be,
as a result of any variation as between (i) the rate of exchange at which the
United States dollar amount is converted into the judgment currency for the
purpose of such judgment or order and (ii) the rate of exchange at which such
Underwriter, controlling person or affiliate, as the case may be, is able to
purchase United States dollars with the amount of judgment currency actually
received by such Underwriter. If the United States dollars so purchased are
greater than the sum originally due to the Underwriters hereunder, the
Underwriters agree to pay to the Parent and the Company
35
an amount equal to the excess of the dollars purchased over the sum originally
due to the Underwriters. The foregoing indemnity shall constitute a separate and
independent joint and several obligation of the Parent and the Company and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of or conversion into United
States dollars.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a signed counterpart hereof and upon
acceptance hereof by you, on behalf of each of the Underwriters, this Agreement
and such acceptance hereof shall constitute a binding agreement among each of
the Underwriters, the Parent and the Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement Among Underwriters,
the form of which shall be submitted to the Parent and the Company for
examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
36
XXXXXXX GOLD CORPORATION
By: (signed) Xxxxx Xx-Xxxxxx
------------------------
Name: Xxxxx Xx-Xxxxxx
Title: Vice-President, Finance
and Treasurer
By: (signed) Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice-President, Assistant
General Counsel and Secretary
XXXXXXX GOLD FINANCE COMPANY
By: (signed) Xxxxx Xx-Xxxxxx
------------------------
Name: Xxxxx Xx-Xxxxxx
Title: Vice-President and Treasurer
By: (signed) Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Secretary
37
Accepted as of the date hereof.
Xxxxxx Xxxxxxx & Co. Incorporated
Deutsche Bank Securities Inc.
Acting severally on behalf of themselves
and the several Underwriters named herein
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: (signed) Xxxxxxx Xxxxx
-----------------------
Name: Xxxxxxx Xxxxx
Title: Executive Director
By: Deutsche Bank Securities Inc.
By: (signed) Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director/Debt Syndicate
By: (signed) Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Director/Debt Syndicate
38
Schedule I
Underwriter Principal Amount of Principal Amount of Principal Amount of
----------- Tranche A Notes To Be Tranche B Notes To Be Tranche C Notes To Be
Purchased Purchased Purchased
--------------------- --------------------- ---------------------
Xxxxxx Xxxxxxx & Co. Incorporated................. US$ 80,000,000 US$ 80,000,000 US$ 140,000,000
Deutsche Bank Securities Inc...................... 40,000,000 40,000,000 70,000,000
Citigroup Global Markets Inc...................... 10,000,000 10,000,000 17,500,000
X.X. Xxxxxx Securities Inc........................ 10,000,000 10,000,000 17,500,000
RBC Capital Markets Corporation................... 10,000,000 10,000,000 17,500,000
Scotia Capital (USA) Inc.......................... 10,000,000 10,000,000 17,500,000
UBS Securities LLC................................ 10,000,000 10,000,000 17,500,000
Barclays Capital Inc.............................. 6,000,000 6,000,000 10,500,000
Xxxxxxx, Xxxxx & Co............................... 6,000,000 6,000,000 10,500,000
Xxxxxx Xxxxxxx Corp............................... 6,000,000 6,000,000 10,500,000
HSBC Securities (USA) Inc......................... 6,000,000 6,000,000 10,500,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated...................... 6,000,000 6,000,000 10,500,000
----------- ----------- -----------
US$ 200,000,000 US$ 200,000,000 US$ 350,000,000
=========== =========== ===========
