EXHIBIT 3.1
FINAL EXECUTION COPY
UNDERWRITING AGREEMENT
November 9, 2004
Placer Dome Inc.
X.X. Xxx 00000 Xxxxxxx Xxxxxxx
Xxxxx 0000 - 0000 Xxxxxxxx Xx.
Xxxxxxxxx, XX X0X 0X0
ATTENTION: XXX XXXXXXXX,
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
CIBC World Markets Inc., Scotia Capital Inc., Deutsche Bank Securities
Limited, HSBC Securities (Canada) Inc., Xxxxxxx Xxxxx Canada Inc., UBS
Securities Canada Inc., BMO Xxxxxxx Xxxxx Inc., GMP Securities Ltd., National
Bank Financial Inc., and Salman Partners Inc. (collectively, the Underwriters
and each individually an "UNDERWRITER"), understand that Placer Dome Inc. (the
"CORPORATION") proposes to issue and sell to the Underwriters 18,500,000 common
shares ("COMMON SHARES") in the capital of the Corporation (the "UNDERWRITTEN
SHARES"). We further understand that the Corporation has prepared and filed a
preliminary short form prospectus, a registration statement and all necessary
documents relating thereto and will take all additional necessary steps to
qualify or register the Underwritten Shares for distribution in each of the
Qualifying Provinces (as defined below) and in the United States, as applicable.
Based on the foregoing, and subject to the terms and conditions
contained in this Agreement, the Underwriters severally, in respect of the
percentages set forth in paragraph 13 of this Agreement, and not jointly, offer
to purchase from the Corporation, and by its acceptance hereof, the Corporation
accepts such offer and agrees to sell to the Underwriters, the Underwritten
Shares on the Closing Date (as defined below) at a price of U.S.$22.00 per share
being an aggregate purchase price of U.S.$407,000,000 (the "PURCHASE PRICE").
The Underwriters shall have an option (the "OPTION"), which Option may
be exercised in the Underwriters' sole discretion and without obligation, to
purchase up to an additional 2,775,000 Common Shares which, if subscribed for
hereunder, shall be deemed to form part of the Underwritten Shares for the
purposes hereof. The Option shall be exercisable by the Underwriters, at any
time prior to 4:30 p.m. (Vancouver time) on the date two days prior to the
Closing Date by delivering written notice to the Corporation prior to the expiry
of the Option, after which time the Option shall be void and of no further force
and effect. The Underwriters may exercise the Option and purchase any such
additional Common Shares only to cover over-allotments, if any, made in
connection with the offering and sale of the 18,500,000 Underwritten Shares
referred to in the first paragraph of this Agreement.
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In consideration of the Underwriters' agreement to purchase the
Underwritten Shares and in consideration of the services to be rendered by the
Underwriters in connection with the distribution of the Underwritten Shares in
each of the Qualifying Provinces and the United States, the Corporation will pay
to the Underwriters a fee of U.S.$0.77 per Underwritten Share for an aggregate
fee of U.S.$14,245,000 if the Option is not exercised and U.S.$16,381,750 if the
Option is fully exercised (the "UNDERWRITING FEE"). Such fee shall be due and
payable at the Closing Time (as defined below) against payment by the
Underwriters for the Underwritten Shares.
All actions to be undertaken by the Underwriters in connection with
the offering or sale of the Underwritten Shares in the United States, shall be
undertaken through their respective U.S. Dealers.
DEFINITIONS
In this Agreement:
"AFFILIATE", "DISTRIBUTION", "MATERIAL CHANGE", "MATERIAL FACT",
"MISREPRESENTATION", and "SUBSIDIARY" when used in connection with the Canadian
Preliminary Prospectus, Canadian Final Prospectus or any Prospectus Amendment
thereto shall have the respective meanings given to them under the Canadian
Securities Laws, when used in connection with the Registration Statement, the
U.S. Preliminary Prospectus, the U.S. Final Prospectus or any Prospectus
Amendment thereto shall have the respective meanings (to the extent applicable)
under the U.S. Securities Laws including judicial and administrative
interpretations thereof, and in all other contexts shall have the respective
meanings given to them under Canadian Securities Laws;
"AGREEMENT" means the agreement resulting from the acceptance by the Corporation
of the offer made by the Underwriters by this letter;
"APPLICABLE SECURITIES LAWS" means the Canadian Securities Laws and the U.S.
Securities Laws;
"BCSC" means the British Columbia Securities Commission;
"BUSINESS DAY" means a day which is not a Saturday, a Sunday or a statutory or
civic holiday in Toronto or New York City and a day on which the office of the
SEC in Washington D.C. is open for business;
"CANADIAN PRELIMINARY PROSPECTUS" and "CANADIAN FINAL PROSPECTUS" mean the
Canadian preliminary short form prospectus and Canadian (final) short form
prospectus, respectively, including in each case any Documents Incorporated by
Reference, prepared by the Corporation in accordance with National Instrument
44-101 and relating to the distribution of the Underwritten Shares and prepared
and filed with the Canadian Securities Regulators in accordance with Canadian
Securities Laws;
"CANADIAN SECURITIES LAWS" means all applicable securities laws in each of the
Qualifying Provinces and the respective regulations and rules under such laws
together with applicable published policy statements of the Canadian Securities
Regulators in the Qualifying Provinces;
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"CANADIAN SECURITIES REGULATORS" means the applicable securities commission or
regulatory authority in each of the Qualifying Provinces;
"CANADIAN TRANSFER AGENT" means CIBC Mellon Trust Company, Corporate Trust
Services, with its principal offices in the cities of Toronto and Vancouver;
"CBCA" means the Canada Business Corporations Act, as amended;
"CLAIM" has the meaning given to it in sub-paragraph 10(a);
"CLOSING" means the completion of the sale by the Corporation and the purchase
by the Underwriters of the Underwritten Shares pursuant to the terms and
conditions of this Agreement;
"CLOSING DATE" means November 23, 2004, or such other date as the Corporation
and the Underwriters may agree upon in writing or as may be changed in
accordance with subparagraph 4(c) of the Agreement;
"CLOSING TIME" means 8:30 am (Toronto time) on the Closing Date;
"COMMON SHARES" means the common shares without par value in the capital of the
Corporation;
"CORPORATION" means Placer Dome Inc.;
"DOCUMENTS INCORPORATED BY REFERENCE" means collectively:
(a) those documents listed in the Preliminary Prospectuses under the
heading "Documents Incorporated By Reference"; and
(b) any other document prepared by the Corporation and filed with Canadian
Securities Regulators after the date of this Agreement and before the
completion of the distribution of the Underwritten Shares that is of a
type that is required to be incorporated by reference in the Canadian
Final Prospectus pursuant to National Instrument 44-101;
"EFFECTIVE DATE" means any date as of which the Registration Statement or any
amendment thereto is declared effective under the 1933 Act;
"FINAL PROSPECTUSES" means, collectively, the Canadian Final Prospectus and the
U.S. Final Prospectus;
"FINANCIAL INFORMATION" means the Corporation's financial statements included in
the Documents Incorporated by Reference together with any auditors' report
thereon and the notes thereto;
"INDEMNIFIED PARTY" has the meaning given to it in subparagraph 10(b);
"INDEMNIFIER" has the meaning given to it in subparagraph 11(a);
"1933 ACT" means the United States Securities Act of 1933, as amended;
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"1934 ACT" means the United States Securities Exchange Act of 1934, as amended;
"NASD" means the National Association of Securities Dealers, Inc.;
"NATIONAL INSTRUMENT 44-101" means National Instrument 44-101 adopted by the
Canadian Securities Regulators;
"NATIONAL POLICY 43-201" means National Policy 43-201 adopted by the Canadian
Securities Regulators;
"NOTICE" has the meaning given to it in paragraph 21;
"OPTION" has the meaning given to it above;
"OPTION SHARES" means the Common Shares purchased by the Underwriters upon the
exercise of the Option;
"PRELIMINARY PROSPECTUSES" means, collectively, the Canadian Preliminary
Prospectus and the U.S. Preliminary Prospectus;
"PROSPECTUS AMENDMENT" means any amendment or supplement to any of the
Preliminary Prospectuses, the Final Prospectuses or the Registration Statement;
"PURCHASE PRICE" has the meaning given to it above;
"QUALIFYING PROVINCES" means all of the provinces and territories of Canada;
"REGISTRATION STATEMENT" means the registration statement on Form F-10 referred
to in subparagraph 1(d) of this Agreement, including the U.S. Preliminary
Prospectus and the U.S. Final Prospectus, as the case may be, and the exhibits
thereto and the Documents Incorporated by Reference therein, as amended at the
Effective Date;
"RULES" has the meaning given to it in subparagraph 7(z);
"SEC" means the United States Securities and Exchange Commission;
"SIGNIFICANT SUBSIDIARIES" means the Corporation's subsidiaries listed in
Schedule "A" to this Agreement and "SIGNIFICANT SUBSIDIARY" means each one of
them;
"STOCK EXCHANGES" means the Toronto Stock Exchange and the New York Stock
Exchange;
"SUBSIDIARY" and "SUBSIDIARIES" have the meanings ascribed thereto in the Canada
Business Corporations Act;
"UNDERWRITER" and "UNDERWRITERS" have the meaning given above;
"UNDERWRITING FEE" has the meaning given above;
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"UNDERWRITTEN SHARES" has the meaning given above and includes any Option Shares
purchased by the Underwriters in the event the Option is exercised;
"U.S. DEALERS" means the U.S. broker-dealer affiliates of the Underwriters,
registered as such with the SEC under Section 15 of the 1934 Act, who are
members of the NASD;
"U.S. FINAL PROSPECTUS" means the prospectus included in the Registration
Statement at the Effective Date (including the Documents Incorporated by
Reference therein) prepared by the Corporation and relating to the offering of
Underwritten Shares in the United States, except that if the U.S. Final
Prospectus first furnished to the U.S. Dealer after the Effective Date for use
in connection with the offering of the Underwritten Shares in the United States
differs from the prospectus included in the Registration Statement at the
Effective Date, the term "U.S. FINAL PROSPECTUS" shall refer to the final
prospectus first furnished to the U.S. Dealer for such use (including the
Documents Incorporated by Reference therein);
"U.S. PRELIMINARY PROSPECTUS" means the prospectus, including any supplement
thereto, included in the Registration Statement before the Effective Date
(including the Documents Incorporated by Reference therein) prepared by the
Corporation and relating to the offering of Underwritten Shares in the United
States;
"U.S. SECURITIES LAWS" means all applicable securities legislation in the United
States, including without limitation the 1933 Act and 1934 Act, and the rules
and regulations promulgated thereunder, including judicial and administrative
interpretations thereof; and
"U.S. TRANSFER AGENT" means The Bank of New York, with its principal office in
The City of New York.
Unless otherwise expressly provided in this Agreement, words importing
only the singular number include the plural and vice versa and words importing
gender include all genders. References to "paragraphs", "subparagraphs" and
"clauses" are to the appropriate paragraph, subparagraph or clause of this
Agreement.
All references to dollars or "$" are United States dollars unless
otherwise expressed.
TERMS AND CONDITIONS
1. COMPLIANCE WITH SECURITIES LAWS - FILING OF PROSPECTUSES
The Corporation represents and warrants to, and covenants and agrees
with, the Underwriters that:
(a) the Corporation has filed the Canadian Preliminary Prospectus in
each of the Qualifying Provinces pursuant to National Policy
43-201 and has obtained an MRRS decision document evidencing
receipts by each of the Canadian Securities Regulators for the
Canadian Preliminary Prospectus;
(b) the Corporation shall fulfil or cause to be fulfilled to the
reasonable satisfaction of the Underwriters' counsel all relevant
provisions of Canadian Securities Laws that
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are required to be fulfilled by the Corporation to permit the
distribution of the Underwritten Shares in each of the Qualifying
Provinces, by or through the Underwriters who shall comply with
the relevant provisions of Canadian Securities Laws;
(c) the Corporation shall, as soon as possible, fulfil all legal
requirements to enable the distribution of the Underwritten
Shares and in any event shall file the Canadian Final Prospectus
in each of the Qualifying Provinces and obtain an MRRS decision
document evidencing receipt of the Canadian Final Prospectus by
each of the Canadian Securities Regulators on or prior to 4:30 pm
(Vancouver time) on November 17, 2004;
(d) the Corporation: (i) has prepared and filed with the SEC the
Registration Statement including the U.S. Preliminary Prospectus
(which will be substantially similar to the Canadian Preliminary
Prospectus with such deletions therefrom and additions thereto as
are permitted or required by Form F-10 under the 1933 Act and the
Rules) and a written appointment of agent for services of process
upon the Corporation on Form F-X (the "FORM F-X"); and (ii) as
soon as practicable after the filing of the Canadian Final
Prospectus with the BCSC and, in any event, on the date on which
the Canadian Final Prospectus is filed with the BCSC, will file
an amendment to such Registration Statement including the U.S.
Final Prospectus (which will be substantially similar to the
Canadian Final Prospectus with such deletions therefrom and
additions thereto as are permitted or required by Form F-10 under
the 1933 Act and the Rules) and shall have fulfilled and complied
with, to the reasonable satisfaction of the Underwriters, the
U.S. Securities Laws required to be fulfilled or complied with by
the Corporation to enable the Underwritten Shares to be lawfully
distributed to the public in the United States.
2. DUE DILIGENCE
Prior to the filing of the Final Prospectuses, the Corporation shall
permit the Underwriters and their counsel to review and provide comments on
drafts of each of the Final Prospectuses and shall allow the Underwriters to
conduct any due diligence investigations which each Underwriter reasonably
requires in order to fulfil its obligations as an underwriter under the
Applicable Securities Laws and in order to enable the Underwriters to
responsibly execute the certificate in the Canadian Final Prospectus required to
be executed by it. Following the filing of the Final Prospectuses until
completion of the distribution of the Underwritten Shares, the Corporation shall
allow each Underwriter to conduct any and all due diligence investigations which
it requires to confirm as at any date that it continues to have reasonable
grounds for the belief that the Final Prospectuses do not contain a
misrepresentation as at such date.
3. DELIVERIES
(a) Deliveries on Filing of Final Prospectuses
No later than the time of filing of the Final Prospectuses with the
Canadian Securities Regulators and with the SEC, unless otherwise indicated
below, the Corporation shall deliver to the Underwriters:
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(i) a copy of each of the Final Prospectuses, including all
Documents Incorporated by Reference, in the English
language, signed, filed and certified as required by the
Applicable Securities Laws;
(ii) a copy of the Canadian Final Prospectus, including all
Documents Incorporated by Reference, in the French
language, signed and certified as required by the
Applicable Securities Laws applicable in Quebec;
(iii) a copy of each other document filed by the Corporation at
or prior to the time of filing the Canadian Final
Prospectus in compliance with Applicable Securities Laws in
connection with the distribution of the Underwritten
Shares; and
(iv) opinions of Osler, Xxxxxx & Harcourt LLP addressed to the
Underwriters, to the Corporation, to Xxxxxxx, Xxxxx & Xxxx
and to Blake, Xxxxxxx & Xxxxxxx LLP, in form and substance
satisfactory to the Underwriters, dated as of the date of
the Canadian Final Prospectus, to the effect that the
French language version of the Canadian Final Prospectus,
including the Documents Incorporated by Reference, except
for the Financial Information and the Management's
Discussion and Analysis of Financial Results for the
periods ended December 31, 2003 and September 30, 2004, as
to which no opinion need be expressed, is in all material
respects a complete and proper translation of the English
language version thereof, and that such English and French
language versions are not susceptible of any materially
different interpretation with respect to any material
matter contained therein;
(v) opinions of Ernst & Young LLP addressed to the
Underwriters, to the Corporation, to Xxxxxxx, Xxxxx & Xxxx,
to Osler, Xxxxxx & Harcourt LLP and to Blake, Xxxxxxx &
Xxxxxxx LLP, in form and substance satisfactory to the
Underwriters, dated as of the date of the Canadian Final
Prospectus, to the effect that the French language versions
of the Financial Information and the Management's
Discussion and Analysis of Financial Results for the
periods ended December 31, 2003 and September 30, 2004 are,
in all material respects, complete and proper translations
of the English language versions thereof; and
(vi) a "long-form" comfort letter of Ernst & Young LLP, dated as
of the date of the Final Prospectus (with the requisite
procedures to be completed by Ernst & Young LLP within two
Business Days of the date of the Canadian Final
Prospectus), addressed to the Underwriters and the board of
directors of the Corporation, in form and substance
satisfactory to the Underwriters, acting reasonably, with
respect to certain financial and accounting information
relating to the Corporation in the Final Prospectuses
including all Documents Incorporated by Reference, which
letter shall be in addition to the auditors' report
incorporated by reference into the Final Prospectuses.
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(b) Prospectus Amendments
In the event that the Corporation is required by Applicable Securities
Laws to prepare and file a Prospectus Amendment, the Corporation shall prepare
and deliver promptly to the Underwriters signed and certified copies of such
Prospectus Amendment in the English and French languages along with all
Documents Incorporated by Reference that have not been previously delivered. Any
Prospectus Amendments shall be in form and substance satisfactory to the
Underwriters acting reasonably. Concurrently with the delivery of any Prospectus
Amendment, the Corporation shall deliver to the Underwriters with respect to
such Prospectus Amendment, documents similar to those referred to in clauses
3(a)(iii) to (iv).
(c) Commercial Copies
The Corporation has caused commercial copies of the Preliminary
Prospectuses (in English and also in French in the case of the Canadian
Preliminary Prospectus) and shall cause commercial copies of the Final
Prospectuses (in English and also in French in the case of the Canadian
Preliminary Prospectus) to be delivered, without charge, to the Underwriters in
Toronto and in such other cities in North America and in such quantities as the
Underwriters may reasonably request by oral instructions to the printer of such
documents. Such delivery of the Final Prospectuses shall be effected as soon as
possible after receipts are issued by the Canadian Securities Regulators for the
Canadian Final Prospectus but, in any event, on or before 10:00 a.m. (Toronto
time) on November 18, 2004. Such deliveries shall constitute the consent of the
Corporation to the Underwriters' use of the Preliminary Prospectuses and Final
Prospectuses in connection with the distribution of the Underwritten Shares in
the Qualifying Provinces and in the United States in compliance with the
provisions of this Agreement and Applicable Securities Laws.
(d) Qualification of Securities
The Corporation will promptly from time to time take such action as
the Underwriters may reasonably request to qualify the Underwritten Shares for
offering and sale under the Applicable Securities Laws or "Blue Sky laws" of
such United States or Canadian jurisdictions as the Underwriters may request and
to comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for so long as may be necessary to complete the
distribution of the Underwritten Shares until 30 days after the date hereof;
provided that in connection therewith, the Corporation shall not be required to
amend its charter documents or bylaws or to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction or subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject.
(e) Distribution of Shares
The Underwriters shall (and shall require any selling firm to agree
with such Underwriters, for the benefit of the Corporation, to):
(i) comply with Applicable Securities Laws in connection with
the distribution of the Underwritten Shares;
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(ii) not solicit offers to purchase Underwritten Shares from, or
sell Underwritten Shares to, any person resident in any
jurisdiction other than the Qualifying Provinces or the
United States, except in a manner which is exempt from
registration and prospectus requirements under applicable
securities laws and which does not require the Corporation
to register any of its securities or comply with ongoing
filing or disclosure requirements or other similar
requirements in such jurisdiction and further provided that
in connection therewith, the Corporation shall not be
required to amend its charter documents or by-laws or to
qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction or
subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject;
and
(iii) offer and sell the Underwritten Shares in the United States
only through the U.S. Dealers.
(f) Notice of Completion of Distribution
After the Closing Time, the Underwriters shall:
(i) use their reasonable commercial efforts to complete the
distribution of the Underwritten Shares as promptly as
possible; and
(ii) give prompt written notice to the Corporation when, in the
opinion of the Underwriters, the Underwriters have
completed distribution of the Underwritten Shares,
including a breakdown of the gross proceeds realized
therefrom in each of the Qualifying Provinces, in the
United States and in any other applicable jurisdiction.
(g) Distribution of Shares - United Kingdom
Each Underwriter represents, warrants and agrees that: it has not
offered for sale or sold, and, prior to the expiry of a period of six months
from the Closing Date, will not offer or sell any Underwritten Shares to persons
in the United Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations 1995
(as amended); it has only communicated or caused to be communicated, and will
only communicate or cause to be communicated, any invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the Financial
Services and Markets Xxx 0000 of the United Kingdom (the "FSMA'")) received by
it in connection with the issue or sale of any Underwritten Shares in
circumstances in which Section 21(1) of the FSMA does not apply to the
Corporation; and it has complied and will comply with all applicable provisions
of the FSMA with respect to anything done by it in relation to the Underwritten
Shares in, from or otherwise involving the United Kingdom.
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4. MATERIAL CHANGES DURING DISTRIBUTION
(a) Corporation Material Change
During the period from the date of this Agreement to the completion of
distribution of the Underwritten Shares, the Corporation shall promptly notify
the Underwriters in writing of:
(i) any material change (actual, anticipated, or threatened,
financial or otherwise) in the business, affairs,
operations, assets, liabilities (contingent or otherwise)
or capital of the Corporation;
(ii) any material fact which has arisen or been discovered that
would have been required to have been stated in the Final
Prospectuses or the Registration Statement had such fact
arisen or been discovered on, or prior to, the date of such
document; and
(iii) any change in any material fact (which for the purposes of
this Agreement shall be deemed to include the disclosure of
any previously undisclosed material fact) contained in the
Final Prospectuses or the Registration Statement, including
all Documents Incorporated by Reference, which fact or
change is, or may be, of such a nature as to render any
statement in the Final Prospectuses or the Registration
Statement misleading or untrue or which would result in a
misrepresentation in the Final Prospectuses or the
Registration Statement or which would result in the Final
Prospectuses or the Registration Statement not complying
(to the extent that such compliance is required) with
Applicable Securities Laws.
The Corporation shall in good faith discuss with the Underwriters any
fact or change (actual, anticipated, contemplated or threatened, financial or
otherwise) which is of such a nature that there may be reasonable doubt as to
whether notice need be given to the Underwriters pursuant to this subparagraph
4(a). If at any time during the period from the date of this Agreement to the
completion of distribution of the Underwritten Shares, any event described in
clauses (i), (ii) or (iii) above occurs or any condition exists as a result of
which it is necessary, in the reasonable opinion of counsel for the Corporation
or the Underwriters, to amend the Registration Statement or amend or supplement
the Final Prospectuses, as the case may be, in order that the Final Prospectuses
will not include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of any such counsel, at
any such time to amend the Registration Statement or amend or supplement the
Final Prospectuses, as the case may be, in order to comply with the requirements
under Applicable Securities Laws or other applicable laws, the Corporation will
promptly prepare and file such Prospectus Amendment as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Final Prospectuses, as the case may be, comply with such laws, and the
Corporation will furnish to the Underwriters such number of copies of such
Prospectus Amendment as the Underwriters may reasonably request.
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The Corporation shall not file any Prospectus Amendment or other
document, however, without first obtaining approval from the Underwriters, after
consultation with the Underwriters with respect to the form and content thereof,
which approval shall not be unreasonably withheld or delayed.
(b) Change in Applicable Securities Laws
If during the period of distribution of the Underwritten Shares, there
shall be any change in the Applicable Securities Laws which, in the opinion of
the Underwriters, acting reasonably, requires the filing of a Prospectus
Amendment, the Corporation shall, to the satisfaction of the Underwriters,
acting reasonably, promptly prepare and file such Prospectus Amendment with the
appropriate securities regulatory authority in each jurisdiction where such
filing is required.
(c) Change in Closing Date
If a material change occurs or an undisclosed material fact has arisen
or been discovered prior to the Closing Date, then, subject to paragraph 9, the
Closing Date shall be, unless the Corporation and the Underwriters otherwise
agree in writing or unless otherwise required under the Applicable Securities
Laws, the later of:
(i) the third Business Day following the date on which all
applicable filings or other requirements of the Applicable
Securities Laws with respect to such material change or
change in a material fact have been made or complied with
in all relevant jurisdictions and any appropriate receipts
obtained for such filings and notice of such filings from
the Corporation or its counsel have been received by the
Underwriters; and
(ii) the fifth Business Day following the date upon which the
commercial copies of any Prospectus Amendment have been
delivered in accordance with subparagraph 3(c).
In no event, however, shall the Closing Date be later than December 8, 2004.
(d) Notification
During the period commencing on the date hereof until the Underwriters
notify the Corporation of the completion of the distribution of the Underwritten
Shares, the Corporation will promptly inform the Underwriters of the full
particulars of:
(i) any request of any Canadian Securities Regulator or the SEC
for any amendment to the Preliminary Prospectus, the Final
Prospectus, the Registration Statement or any Supplementary
Material or for any additional information in respect of
the offering of the Underwritten Shares;
(ii) the receipt by the Corporation of any material
communication, whether written or oral, from any Canadian
Securities Regulator, the SEC, either Stock Exchange or any
other competent authority, relating to the Final
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Prospectus, the Registration Statement or the distribution
of the Underwritten Shares;
(iii) any notice or other correspondence received by the
Corporation from any governmental body requesting any
information, meeting or hearing relating to the
Corporation, the offering, the issue and sale of the
Underwritten Shares or any other event or state of affairs,
that the Corporation reasonably believes would have a
material adverse effect on the business, assets, financial
condition, liabilities or operations of the Corporation;
and
(iv) the issuance by any Canadian Securities Regulator, the SEC,
either Stock Exchange or any other competent authority,
including any other governmental or regulatory body, of any
order to cease or suspend trading or distribution of any
securities of the Corporation or of the institution, threat
of institution of any proceedings for that purpose or any
notice of investigation that could potentially result in an
order to cease or suspend trading or distribution of any
securities of the Corporation.
5. SERVICES PROVIDED BY UNDERWRITERS AND UNDERWRITING FEE
In consideration for the Underwriters' services in assisting in the
preparation of the Preliminary Prospectuses, the Final Prospectuses, the
Registration Statement and any Prospectus Amendments, in distributing the
Underwritten Shares, both directly and to other registered dealers as brokers,
and in performing administrative work in connection with the distribution of the
Underwritten Shares, the Corporation agrees to pay to the Underwriters the
Underwriting Fee. The Underwriting Fee shall be payable as provided for in
subparagraph 6(a). The Underwriting Fee shall be payable by way of set-off of
the amount of the Underwriting Fee against, and deduction of the Underwriting
Fee from, the Purchase Price.
6. DELIVERY OF PURCHASE PRICE, UNDERWRITING FEE AND CERTIFICATE
(a) Deliveries
The purchase and sale of the Underwritten Shares shall be completed at
the Closing Time at the offices of Xxxxxxx, Xxxxx & Xxxx, 19th Floor, The
Grosvenor Building, 1040 W. Georgia Street, Vancouver, British Columbia or at
such other place as the Underwriters and the Corporation may agree upon.
At the Closing Time, the Corporation shall deliver to the Underwriters
one or more definitive share certificate(s) representing the Underwritten Shares
in favour of the Underwriters or its nominee(s), against payment by the
Underwriters to the Corporation of the Purchase Price, less the Underwriting
Fee, by wire transfer, or if permitted under applicable laws, certified cheque
or bank draft (in any case, as may be directed by the Corporation) in U.S.
dollars together with a receipt signed by the Underwriters for such definitive
certificate(s) and a receipt for the Underwriting Fee.
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(b) Delivery of Certificate(s) to Transfer Agent
The Corporation shall, prior to the Closing Date, make all necessary
arrangements for the exchange of the definitive certificate(s) representing the
Underwritten Shares, on the Closing Date, at the principal offices of the
Canadian Transfer Agent in the City of Toronto and the U.S. Transfer Agent in
the City of New York for certificates representing such number of Underwritten
Shares registered in such names and amounts as shall be designated by the
Underwriters not less than 48 hours (or 72 hours if the Closing Date is a
Monday) prior to the Closing Time.
The Corporation shall pay all fees and expenses payable to the
Canadian Transfer Agent and the U.S. Transfer Agent in connection with the
preparation, delivery, certification and exchange of the Underwritten Shares,
contemplated by this subparagraph 6(b) and the fees and expenses payable to the
Canadian Transfer Agent and the U.S. Transfer Agent in connection with the
initial or additional transfers as may be required in the course of the
distribution of the Underwritten Shares.
7. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
The Corporation represents and warrants to the Underwriters that, and
acknowledges that the Underwriters are relying upon, such representations and
warranties in purchasing the Underwritten Shares:
(a) The Corporation has been duly amalgamated, is validly existing as
a corporation under the laws of Canada, has the corporate power
and authority to own or lease its property and to conduct its
business as described in the Preliminary Prospectuses and is duly
qualified to transact business and is in good standing (if
applicable) in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Corporation and its subsidiaries, taken as
a whole.
(b) The name and jurisdiction of incorporation of each Significant
Subsidiary is set forth on Schedule "A" hereto. As of September
30, 2004, the Corporation and the Significant Subsidiaries had
total assets, calculated on a consolidated basis in accordance
with U.S. generally accepted accounting principles, equal to not
less than 75% of the total assets of the Corporation and its
subsidiaries, calculated on a consolidated basis in accordance
with U.S. generally accepted accounting principles, at that date
and, for the nine months ended September 30, 2004, the
Corporation and the Significant Subsidiaries had total revenues
and operating earnings, calculated on a consolidated basis in
accordance with U.S. generally accepted accounting principles,
equal to not less than 75% of the total earnings from operations
and investments of the Corporation and its subsidiaries,
calculated on a consolidated basis in accordance with U.S.
generally accepted accounting principles, for such year. Each
Significant Subsidiary has been duly organized, is validly
existing as a corporation, in good standing (if applicable) under
the laws of the jurisdiction of its organization, has the
corporate power and
- 14 -
authority to own or lease its property and to conduct its
business as described in the Preliminary Prospectuses 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 to the extent that the failure to be so qualified or to be
in good standing would not have a material adverse effect on the
Corporation and its subsidiaries, taken as a whole. Except as is
not material and is disclosed in writing to the Underwriters
prior to the date of this Agreement, all of the issued shares of
capital stock of each Significant Subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable
and (except for shares of capital stock held by third parties as
disclosed in the Preliminary Prospectuses) are owned directly or
indirectly by the Corporation, free and clear of all liens,
encumbrances, equities or claims. None of the outstanding shares
in the capital of the Significant Subsidiaries was issued in
violation of pre-emptive or other similar rights.
(c) The Corporation has the corporate power and authority to execute
and deliver this Agreement and to perform its obligations
hereunder. This Agreement has been duly authorized, executed and
delivered by the Corporation and constitutes a valid and binding
obligation of the Corporation, enforceable in accordance with its
terms, except as enforcement hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the rights of creditors generally and except as limited by the
application of equitable principles when equitable remedies are
sought and subject to the fact that rights of indemnity and
contribution may be limited by applicable law and enforceability
of paragraph 11 would be determined only in the discretion of a
court.
(d) The Underwritten Shares will when issued in accordance with the
terms of this Agreement be duly and validly issued as fully-paid
and non-assessable shares in the capital of the Corporation.
(e) The description of the authorized and issued share capital of the
Company in the Preliminary Prospectuses is accurate in all
material respects. All outstanding shares are validly issued and
outstanding as fully paid and non-assessable and have been issued
in compliance with the CBCA and all Applicable Securities Laws.
None of the outstanding shares of the Corporation were issued in
violation of preemptive rights or other similar rights of any
shareholder of the Corporation or any other person. No person,
firm or corporation has any agreement or option, or right or
privilege (whether pre-emptive or contractual) capable of
becoming an agreement or option, for the purchase from the
Corporation of any unissued shares of the Corporation, except as
otherwise referred to and accurately and fairly described in the
Preliminary Prospectuses or as is not material and is disclosed
in writing to the Underwriters prior to the date of this
Agreement.
(f) The execution and delivery by the Corporation of, and the
performance by the Corporation of its obligations under, this
Agreement do not and will not contravene (i) any provision of
applicable law or the certificate of amalgamation, articles of
amalgamation or other constating documents of the Corporation
(the
- 15 -
"CONSTATING DOCUMENTS") or the by-laws of the Corporation, (ii)
any hedging, forward or similar agreement that is material to the
Corporation and its subsidiaries, taken as a whole, (iii) any
other agreement or instrument binding upon the Corporation, any
of its subsidiaries or any of the partnerships or joint ventures
to which the Corporation or any of its subsidiaries is a party
(collectively, "JOINT VENTURES") or (iv) any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Corporation or any subsidiary or Joint
Venture, except for contraventions of any agreement or instrument
referred to in clause (iii) of this paragraph that would not,
individually or in the aggregate, have a material adverse effect
on the Corporation and its subsidiaries, taken as a whole.
(g) There has not occurred any adverse material change, or any
development involving a prospective adverse material change, in
the condition, financial or otherwise, or in the earnings,
business, operations or business prospects of the Corporation and
its subsidiaries, taken as a whole, from that set forth in the
Preliminary Prospectuses (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(h) There are no legal or governmental proceedings pending or, to the
best of the knowledge of the Corporation, threatened to which the
Corporation, any of its subsidiaries or any of the Joint Ventures
is a party or to which any of the properties of the Corporation,
any of its subsidiaries or any of the Joint Ventures is subject,
other than proceedings accurately described in all material
respects in the Preliminary Prospectuses and proceedings that
would not, singularly or in the aggregate, have a material
adverse effect on the Corporation and its subsidiaries, taken as
a whole, or on the power or ability of the Corporation to perform
its obligations under this Agreement or to consummate the
transactions contemplated by the Preliminary Prospectuses.
(i) Except as described in the Preliminary Prospectuses, the
Corporation, its subsidiaries and the Joint Ventures (i) are in
compliance with any and all applicable foreign, federal, state,
provincial, territorial and local laws and regulations relating
to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Corporation and its subsidiaries, taken as
a whole.
(j) Except as described in the Preliminary Prospectuses, there are no
costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
- 16 -
compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, singularly
or in the aggregate, have a material adverse effect on the
Corporation and its subsidiaries, taken as a whole.
(k) The Corporation, its subsidiaries and the Joint Ventures possess
all certificates, authorizations, approvals, licenses,
registrations and permits issued by appropriate federal, state,
provincial, territorial or foreign regulatory authorities
necessary to conduct their respective businesses and neither the
Corporation nor any such subsidiary or Joint Venture has received
notice of any proceedings relating to the revocation or
modification of any such certificate, authorization, approval,
license, registration or permit, except as described in the
Preliminary Prospectuses or except where the failure to possess,
or the revocation or modification of, any such certificate,
authorization, approval, license, registration or permit would
not, singly or in the aggregate, have a material adverse effect
on the Corporation and its subsidiaries, taken as a whole.
(l) The Corporation is not, and after giving effect to the offering
and sale of the Underwritten Shares and the application of the
proceeds thereof as described in the Preliminary Prospectuses,
will not be an "investment company" as such term is defined in
the U.S. Investment Company Act of 1940, as amended.
(m) The Corporation is a "reporting issuer" or equivalent not in
default under applicable Canadian Securities Laws and is eligible
to file a short form prospectus with the Canadian Securities
Regulators as described in National Instrument 44-101.
(n) As of the date of this Agreement, each document incorporated or
deemed to be incorporated in the Preliminary Prospectuses or the
Final Prospectuses which is required to be approved under the
CBCA or Applicable Canadian Securities Laws has been approved by
the Board of Directors of the Corporation.
(o) The financial statements of the Corporation, together with
related schedules, if any, and notes thereto, incorporated in the
Preliminary Prospectuses present fairly the financial position of
the Corporation and its consolidated subsidiaries at the dates
indicated and have been prepared in conformity with Canadian
generally accepted accounting principles or U.S. generally
accepted accounting principles, as applicable, in accordance with
the Applicable Securities Laws, including the requirements of
Form F-10, in each case applied on a consistent basis throughout
the periods involved.
(p) The Corporation's auditors, Ernst & Young, are independent public
accountants as required under Applicable Securities Laws and
there has not been any disagreement (within the meaning of
National Policy Statement No. 31 adopted by the Canadian
Securities Regulators) since December 30, 2002 with the present
or any former auditors of the Corporation.
- 17 -
(q) The Corporation and its subsidiaries have good and marketable
title to the properties and assets owned by them and hold a valid
leasehold interest in all property leased by them (including
without limitation those described in the Preliminary
Prospectuses) (the "Properties"), other than as disclosed in the
Preliminary Prospectuses or with defects in title or leasehold
interest which would not individually or in the aggregate
reasonably be expected to have a material adverse effect on the
Corporation and its subsidiaries, taken as a whole.
(r) Each of the Properties is free and clear of all mortgages,
charges and other encumbrances, other than those disclosed in the
Preliminary Prospectus or those which would not individually or
in the aggregate reasonably be expected to have a material
adverse effect on the Corporation and its subsidiaries, taken as
a whole.
(s) To the knowledge of the Corporation, no securities commission,
stock exchange or comparable authority has issued any order
preventing or suspending the use or effectiveness of the
Preliminary Prospectuses, the Final Prospectuses, the
Registration Statement or any Prospectus Amendment or preventing
the distribution of the Underwritten Shares in any Qualifying
Province or the United States nor instituted proceedings for that
purpose and, to the knowledge of the Corporation, no such
proceedings are pending or contemplated.
(t) To the knowledge of the Corporation, the Corporation is not a
"related issuer" or "connected issuer" (as such terms are defined
under the Canadian Securities Laws) of the Underwriters, except
as disclosed in the Preliminary Prospectuses.
(u) The Canadian Transfer Agent, at its principal office in the
Cities of Toronto and Vancouver has been duly appointed as
registrar and transfer agent for the Common Shares in Canada, and
the U.S. Transfer Agent, at its principal office in New York, has
been duly appointed as registrar and transfer agent for the
Common Shares in the United States.
(v) The definitive form of certificates representing the Common
Shares has been approved and adopted by the Corporation and
conforms to the requirements of the CBCA, the Stock Exchanges and
the articles of amalgamation and by-laws of the Corporation.
(w) The Corporation has prepared and filed with the SEC an
appointment of agent for service of process upon the Corporation
on Form F-X.
(x) The Corporation meets the general eligibility requirements for
use of Form F-10 under the 0000 Xxx.
(y) As at their respective dates, the Canadian Preliminary Prospectus
does, and the Canadian Final Prospectus will, comply in all
material respects with the Canadian Securities Laws and, at the
time of delivery of the Underwritten Shares to the Underwriters,
the Canadian Final Prospectus will comply in all material
respects with the Canadian Securities Laws.
- 18 -
(z) (i) the U.S. Preliminary Prospectus conforms and the U.S. Final
Prospectus will conform to the Canadian Preliminary Prospectus
and Canadian Final Prospectus, respectively, except for such
deletions therefrom and additions thereto as are permitted or
required by Form F-10 and the applicable rules and regulations of
the SEC under the 1933 Act (the "RULES"); (ii) the Registration
Statement as amended or supplemented, does not and, on the
Effective Date, will not contain any 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; (iii) the U.S. Preliminary Prospectus and the
Corporation's Form F-X comply, and the U.S. Final Prospectus and
the Registration Statement, as amended or supplemented, will
comply, in all material respects with the 1933 Act and the Rules;
(iv) the U.S. Preliminary Prospectus does not, and the U.S. Final
Prospectus will not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and (v) the Canadian Preliminary
Prospectus contains, and the Canadian Final Prospectus will
contain, full, true and plain disclosure of all material facts
required to be stated therein relating to the Corporation, the
operations of the Corporation, and the Underwritten Shares, and
as of the date of its filing will contain no untrue statement of
a material fact and will not omit to state a material fact
regarding the Corporation and its business and affairs that is
necessary to make any statement therein not misleading in light
of the circumstances in which it was made; provided, however,
that this representation and warranty shall not apply to
statements or omissions made in reliance upon and in conformity
with information relating to the Underwriters furnished in
writing to the Corporation by the Underwriters expressly for use
in the Preliminary Prospectuses, the Final Prospectuses or the
Registration Statement.
(aa) There are no persons with registration rights or similar rights
to have any securities registered or qualified for distribution
pursuant to the Registration Statement, the Preliminary
Prospectuses, the Final Prospectuses or otherwise registered by
the Corporation under Applicable Securities Laws.
(bb) The delivery by the Corporation of any signed Prospectus
Amendment or material change report required to be filed under
the Applicable Securities Laws will constitute a representation
and warranty by the Corporation to the Underwriters that all the
information and statements contained therein (except information
and statements relating to the Underwriters) are true and correct
and that no material information has been omitted therefrom which
is necessary to make the statements contained therein not
misleading.
(cc) Except as disclosed in the Preliminary Prospectuses, to the
knowledge of the Corporation, neither the Corporation nor any
subsidiary is a party to any contract, agreement or understanding
with any officer, director, employee or any other person not
dealing at arm's length with the Corporation or any subsidiary
which is required to be disclosed under Applicable Securities
Laws.
- 19 -
(dd) Other than the Underwriters, there is no person acting or, to the
knowledge of the Corporation, purporting to act at the request of the
Corporation, who is entitled to any brokerage or agency fee in
connection with the sale of the Underwritten Shares.
(ee) The Corporation shall use its reasonable commercial efforts to arrange
for the listing and posting for trading of the Underwritten Shares on
the Stock Exchanges at or before the Closing Time.
(ff) The Corporation intends to use the net proceeds of the offering of the
Underwritten Shares for the purposes described in the Preliminary
Prospectuses.
(gg) Each of the Corporation's subsidiaries that is incorporated under the
laws of any state in the United States, whose principal place of
business is within the United States and that employs employees
resident in the United States is in compliance in all material
respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA")
8. CONDITIONS
The Underwriters' obligation to purchase the Underwritten Shares at the
Closing Time is subject to the accuracy of the representations and warranties of
the Corporation contained in this Agreement, both as of the date of this
Agreement and as of the Closing Time, the performance by the Corporation of its
obligations under this Agreement (including without limitation the strict
performance of the covenant under subparagraphs 1(c) and (d)) and the following
additional conditions:
(a) the Underwriters shall have received at the Closing Time a legal
opinion addressed to the Underwriters and Blake, Xxxxxxx & Xxxxxxx LLP
and Sidley, Austin, Xxxxx & Wood LLP, in form and substance
satisfactory to the Underwriters and their counsel, acting reasonably,
dated the Closing Date from counsel to the Corporation, Xxxxxxx, Xxxxx
& Xxxx, with respect to such matters related to the transactions
contemplated hereby reasonably requested by the Underwriters,
including, without limitation, a "10b-5" opinion (modified for
disclosure standards under Canadian Securities Laws). In providing
such opinion, counsel to the Corporation may rely upon the opinions of
local counsel where they deem such reliance proper as to the laws
other than those of British Columbia and Canada and as to matters of
fact, on certificates of the Corporation's registrar and transfer
agents, auditors, public and stock exchange officials and officers of
the Corporation;
(b) the Underwriters shall have received at the Closing Time a legal
opinion dated the Closing Date from the Corporation's U.S. counsel,
Shearman & Sterling LLP, addressed to the Underwriters, in form and
substance satisfactory to the Underwriters and their counsel, acting
reasonably, with respect to such matters related to the transactions
contemplated hereby reasonably requested by the Underwriters,
including, without limitation, a "10b-5" opinion;
- 20 -
(c) the Underwriters shall have received at the Closing Time a legal
opinion dated the Closing Date from local counsel to the Significant
Subsidiaries addressed to the Underwriters and Blake, Xxxxxxx &
Xxxxxxx LLP and Sidley, Austin, Xxxxx & Xxxx LLP, in form and
substance satisfactory to the Underwriters and their counsel, acting
reasonably, with respect to such matters relating to the Significant
Subsidiaries requested by the Underwriters;
(d) the Underwriters shall have received at the Closing Time a legal
opinion dated the Closing Date from the Underwriters' Canadian
counsel, Blake, Xxxxxxx & Xxxxxxx LLP, with respect to matters related
to the transactions contemplated hereby reasonably requested by the
Underwriters. In providing such opinion Blake, Xxxxxxx & Xxxxxxx LLP
shall be entitled to rely on the opinions of local counsel as to
matters governed by the laws of jurisdictions other than the laws of
Canada and British Columbia respectively, and as to matters of fact,
on certificates of the Corporation's registrar and transfer agents,
auditors, public and stock exchange officials and officers of the
Corporation. Blake, Xxxxxxx & Xxxxxxx LLP shall also be entitled to
rely upon the opinion of counsel to the Corporation described in
subparagraph 8(a);
(e) the Underwriters shall have received at the Closing Time a legal
opinion dated the Closing Date from the Underwriters' U.S. counsel,
Sidley, Austin, Xxxxx & Wood LLP in form and substance satisfactory to
the Underwriters, acting reasonably, with respect to such matters
related to the transactions contemplated hereby reasonably requested
by the Underwriters, including, without limitation, a "10b-5" opinion;
(f) the Underwriters shall have received at the Closing Time a letter
dated the Closing Date from Ernst & Young LLP addressed to the
Underwriters and to the board of directors of the Corporation in form
and substance satisfactory to the Underwriters, acting reasonably,
confirming the continued accuracy of the comfort letter to be
delivered to the Underwriters pursuant to subparagraph 3(a)(vi) with
such changes as may be necessary to bring the information in such
letter forward to within two Business Days of the Closing Date, which
changes shall be acceptable to the Underwriters;
(g) the Underwriters shall have received at the Closing Time a certificate
dated the Closing Date signed by an appropriate officer of the
Corporation addressed to the Underwriters and their counsel, with
respect to the articles and by-laws of the Corporation, all
resolutions of the board of directors of the Corporation relating to
this Agreement, the Final Prospectuses and the Registration Statement,
the incumbency and specimen signatures of signing officers and with
respect to such other matters as the Underwriters may reasonably
request;
(h) the Underwriters shall have received at the Closing Time a certificate
dated the Closing Date signed on behalf of the Corporation by the
President and Chief Executive Officer of the Corporation or such other
officers of the Corporation acceptable to the Underwriters, acting
reasonably, addressed to the Underwriters
- 21 -
certifying for and on behalf of the Corporation after having made due
enquiry and after having carefully examined the Final Prospectuses and
the Registration Statement, including all Documents Incorporated by
Reference, that:
(i) since the respective dates as of which information is given in
the Final Prospectuses and the Registration Statement as
amended by any Prospectus Amendments (A) there has been no
material change (actual, anticipated, contemplated or
threatened, whether financial or otherwise) in the business,
affairs, operations, assets or liabilities (contingent or
otherwise) or capital of the Corporation, and (B) no
transaction has been entered into by the Corporation which is
material to the Corporation, other than as disclosed in the
Final Prospectuses and the Registration Statement, or any
Prospectus Amendments, as the case may be;
(ii) no order, ruling or determination having the effect of
suspending the sale or ceasing the trading of the Common Shares
or any other securities of the Corporation has been issued by
any regulatory authority and is continuing in effect and no
proceedings for that purpose have been instituted or are
pending or, to the knowledge of such officers, contemplated or
threatened under any of the Applicable Securities Laws or by
any other regulatory authority;
(iii) the Corporation has duly complied with all the terms and
conditions of this Agreement on its part to be complied with up
to the Closing Time; and
(iv) the representations and warranties of the Corporation contained
in this Agreement are true and correct as of the Closing Time
with the same force and effect as if made at and as of the
Closing Time;
(i) there are no reports or information that in accordance with the
requirements of the Canadian Securities Regulators must be made
publicly available in connection with the sale of the Underwritten
Shares that have not been made publicly available as required; there
are no documents required to be filed with the SEC as an exhibit to
the Registration Statement or with the Canadian Securities Regulators
in connection with the Canadian Final Prospectus that have not been
filed as required and delivered to the Underwriters; there are no
contracts, documents or other materials required to be described or
referred to in the Final Prospectuses or the Registration Statement
that are not described, or referred to as required and delivered to
the Underwriters;
(j) the Underwriters shall have received at the Closing Time a certificate
from the Canadian Transfer Agent dated the Closing Date and signed by
an authorized officer of such transfer agent, confirming the issued
share capital of the Corporation;
(k) the Underwriters shall have received copies of all required approvals
from the Stock Exchanges to permit the completion of the transactions
contemplated herein
- 22 -
and the conditional listing and posting for trading of the
Underwritten Shares on the Stock Exchanges; and
(l) the Underwriters and counsel for the Underwriters shall have received
from the Corporation such further certificates, documents and other
information as they may have reasonably requested; provided, however,
that the Underwriters or their counsel shall request any such
certificate, document or other information within a reasonable period
prior to the Closing Time.
9. TERMINATION RIGHTS
(a) Litigation
If (i) any inquiry, action, suit, investigation or other proceeding,
whether formal or informal is instituted, threatened or announced or (ii) any
order is made by any federal, provincial or other governmental authority in
relation to the Corporation, including without limitation, any Stock Exchange,
Canadian Securities Regulator or the SEC; which, in the reasonable opinion of an
Underwriter, operates or could operate to prevent or restrict the distribution
or trading of the Underwritten Shares or any other securities of the
Corporation, that Underwriter shall be entitled, at its sole option, in
accordance with subparagraph 9(e), to terminate its obligations under this
Agreement by notice to that effect given to the Corporation at any time prior to
the Closing Time.
(b) Disaster Out
Each Underwriter shall be entitled, at its sole option, in accordance with
subparagraph 9(e), to terminate this Agreement, by notice to the Corporation, at
any time at or prior to the Closing Time (i) if there should develop, occur or
come into effect or existence any event, action, state, condition, act of
hostilities or escalation thereof or major financial occurrence of national or
international consequence, or any law or regulation, which in the opinion of
that Underwriter seriously adversely affects, or involves, or will seriously
adversely affect, or involve, the financial markets or the business, operations
or affairs of the Corporation, in each case the effect of which is such as to
make it, in the judgement of that Underwriter, impracticable to market the
Underwritten Shares or to enforce contracts for the sale of the Underwritten
Shares, or (ii) trading in any securities of the Corporation has been suspended
or materially limited by the SEC, any Canadian Securities Regulator or either of
the Stock Exchanges or if trading generally on either of the Stock Exchanges has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of any Canadian Securities Regulator,
the SEC, the NASD or any other governmental authority, or (iii) if a banking
moratorium has been declared by Canadian, U.S. Federal or New York authorities.
(c) Material Change
If, prior to the Closing Time, there occurs any material change or a change
in any material fact or there arises or is discovered any undisclosed material
fact, such as is contemplated in subparagraph 4(a), which results in or in an
Underwriter's reasonable opinion, is reasonably expected to have a significant
adverse effect on the market price or value of the
- 23 -
Underwritten Shares, that Underwriter shall be entitled, at its sole option, in
accordance with subparagraph 9(e), to terminate its obligations under this
Agreement by written notice to that effect given to the Corporation at any time
prior to the Closing Time.
(d) Conditions
The Corporation agrees that that all terms and conditions of paragraph 8
shall be construed as conditions and complied with so far as they relate to acts
to be performed or caused to be performed by it, that it will use all reasonable
commercial efforts to cause such conditions to be complied with, and that any
breach or failure by the Corporation to comply with any such conditions shall
entitle the Underwriters (or any of them), in accordance with subparagraph 9(e)
to terminate their obligations to purchase the Underwritten Shares by notice to
that effect given to the Corporation at or prior to the Closing Time, unless
otherwise expressly provided in this Agreement. The Underwriters may waive, in
whole or in part, or extend the time for compliance with, any terms and
conditions without prejudice to its rights in respect of any other of such terms
and conditions or any other or subsequent breach or non-compliance, provided
that any such waiver or extension shall be binding upon the Underwriters only if
such waiver or extension is in writing and signed by the Underwriters.
(e) Exercise of Termination Rights
The rights of termination contained in subparagraphs 9(a), (b), (c) and (d)
are in addition to any other rights or remedies the Underwriters may have in
respect of any default, act or failure to act or non-compliance by the
Corporation in respect of any of the matters contemplated by this Agreement or
otherwise. In the event that any Underwriter exercises such rights of
termination, there shall be no further liability on the part of such
Underwriters to the Corporation or on the part of the Corporation to that
Underwriter except in respect of any liability that may have arisen or may later
arise under paragraphs 10, 11 and 14.
10. INDEMNITY
(a) Indemnity
The Corporation will indemnify and save harmless the Underwriters and their
affiliates (which shall include, without limitation, the U.S. Dealers) and each
of their respective directors, officers, employees and agents from and against
all liabilities, claims, losses (other than loss of profits), reasonable costs,
damages and reasonable expenses (including, without limitation any legal fees or
other expenses reasonably incurred by the Underwriters in connection with
defending or investigating any such action or claim) (a "CLAIM") in any way
caused by, or arising directly or indirectly from, or in consequence of:
(i) any information or statement (except any statement relating
solely to the Underwriters and provided by the Underwriters for
use therein) contained in this Agreement, the Preliminary
Prospectuses, the Final Prospectuses or the Registration
Statement, including the Documents Incorporated by Reference,
or any Prospectus Amendments which, at the time and in the
light of the circumstances under which it was made, contains or
is alleged to contain a misrepresentation;
- 24 -
(ii) any omission or alleged omission to state in the Preliminary
Prospectuses, the Final Prospectuses or the Registration
Statement, including the Documents Incorporated by Reference,
or any Prospectus Amendments or supplements thereto, any fact
(except facts relating solely to the Underwriters and provided
by the Underwriters expressly for use therein), whether
material or not, regarding the Corporation and its business and
affairs that is necessary to make any statement therein not
misleading (in the case of the Preliminary Prospectuses and
Final Prospectuses) in light of the circumstances in which it
was made;
(iii) any order made or inquiry, investigation or proceedings
commenced or threatened by any securities commission or other
competent authority based upon any untrue statement or omission
or alleged untrue statement or alleged omission or any
misrepresentation or alleged misrepresentation (except a
statement, omission, misrepresentation or alleged statement,
omission or misrepresentation regarding facts relating solely
to the Underwriters and provided by the Underwriters expressly
for use therein) in the Preliminary Prospectuses, the Final
Prospectuses or the Registration Statement, including the
Documents Incorporated by Reference, or any Prospectus
Amendments or based upon any failure to comply with the
Applicable Securities Laws (other than any failure or alleged
failure to comply by the Underwriters), preventing or
restricting the trading in or the sale or distribution of the
Underwritten Shares in any of the Qualifying Provinces or the
United States;
(iv) the non-compliance or alleged noncompliance by the Corporation
with any of the Applicable Securities Laws, including, in the
case of the Corporation, the Corporation's non-compliance with
any statutory requirement to make any document available for
inspection; or
(v) any breach by the Corporation of its representations,
warranties, covenants or obligations to be complied with under
this Agreement.
In no event shall this indemnity enure to the benefit of the Underwriters,
if (i) a court of competent jurisdiction in a final judgment determines that the
Claim in respect of which indemnification is sought is a result of or arises out
of the recklessness or willful misconduct of the Underwriters; or (ii) a copy of
the Final Prospectuses (as then amended or supplemented, if the Corporation
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of the Underwriters to a person asserting any such losses,
claims, damages or liabilities, if required by law so to have been delivered by
the Underwriters to such person, at or prior to the written confirmation of the
sale of the Underwritten Shares to such person, and if the Final Prospectuses
(as so amended or supplemented) delivered to the Underwriters a reasonable
amount of time in advance of such confirmation would have cured the defect
giving rise to such losses, claims, damages or liabilities.
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(b) Notification of Claims
If any Claim is asserted against any person or company in respect of which
indemnification is or might reasonably be considered to be provided, such person
or company (the "INDEMNIFIED PARTY") will notify the Corporation as soon as
possible of the nature of such Claim (but the omission so to notify the
Corporation of any potential Claim shall not relieve the Corporation from any
liability which it may have to any Indemnified Party and any omission so to
notify the Corporation of any actual Claim shall affect the Corporation's
liability only to the extent that it is materially prejudiced by that failure).
Subject to subparagraph 10(d), the Corporation shall be entitled to participate
in and, to the extent that it shall wish, to assume the defense of any suit
brought to enforce such Claim; provided, however, that the defense shall be
conducted through legal counsel acceptable to the Indemnified Party, acting
reasonably, that no settlement of any such Claim or admission of liability may
be made by the Corporation or the Indemnified Party without the prior written
consent of the other parties, acting reasonably, and the Corporation shall not
be liable for any settlement of any such Claim unless it has consented in
writing to such settlement. The Corporation shall not settle any Claim, or
compromise or consent to any judgment unless such settlement, compromise or
judgment (i) includes an unconditional release of the Indemnified Party from all
liability arising out of such action or claim 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 any Indemnified Party.
(c) Right of Indemnity in Favour of Others
With respect to any Indemnified Party who is not a party to this Agreement,
the Indemnified Parties who are party to this Agreement shall obtain and hold
the rights and benefits of this paragraph in trust for and on behalf of such
Indemnified Party.
(d) Retaining Counsel
In any Claim, the Indemnified Party shall have the right to retain
other counsel to act on its behalf, provided that the reasonable fees and
disbursements of such counsel shall be paid by the Indemnified Party unless (i)
the Corporation fails to assume the defense of such suit on behalf of the
Indemnified Party within 10 days of receiving written notice of such suit; (ii)
the Corporation and the Indemnified Party shall have mutually agreed to the
retention of the other counsel; or (iii) the named parties to any such Claim
(including any added third or impleaded party) include the Indemnified Party and
the Corporation and the Indemnified Party shall have been advised by counsel
that the representation of all parties by the same counsel would be
inappropriate due to the actual or potential differing interests between them.
In no event shall the Corporation be liable to pay the fees and disbursements of
more than one firm of separate counsel for all Indemnified Parties and, in
addition, one firm of local counsel in each applicable jurisdiction.
11. CONTRIBUTION
(a) Contribution by the Corporation
In order to provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph 10 is unavailable, in whole
or in part, for any reason to
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an Indemnified Party in respect of any Claim, the Corporation (the
"INDEMNIFIER") and the Underwriters shall contribute to the amount paid or
payable (or, if such indemnity is unavailable only in respect of a portion of
the amount so paid or payable, such portion of the amount so paid or payable) by
the Corporation as a result of such Claim in such proportion as is appropriate
to reflect the relative benefits received by the Corporation on the one hand and
the Underwriters on the other hand from the offering of the Underwritten Shares;
or if this allocation is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to above but
also the relative fault of the Corporation on the one hand and the Underwriters
on the other hand in connection with the information, statement, omission,
misrepresentation, order, inquiry, investigation or other matter or thing
referred to in paragraph 10 which resulted in such Claim, as well as any other
relevant equitable considerations.
The relative benefits received by the Corporation on the one hand and the
Underwriters on the other hand shall be deemed to be in the same proportion as
the total proceeds (net of the fee payable to the Underwriters but before
deducting expenses (to the extent that such expenses are payable by the
Corporation pursuant to paragraph 14)) received by the Corporation from the
issue and sale of the Underwritten Shares bears to the fee received by the
Underwriters, in each case, as set out in the table on the face page of the
Final Prospectuses. The relative fault of the Corporation on the one hand and of
the Underwriters on the other shall be determined by reference to, among other
things, whether the information, statement, omission, misrepresentation, order,
inquiry, investigation or other matter or thing referred to in paragraph 10
which resulted in such Claim relates to information supplied by or steps or
actions taken or done by or on behalf of the Corporation or to information
supplied by or steps or actions taken or done by or on behalf of the
Underwriters and the relative intent, knowledge, access to information and
opportunity to correct or prevent such statement, omission, misrepresentation,
order, inquiry, investigation or other matter or thing referred to in paragraph
10. The amount paid or payable by an Indemnified Party as a result of the Claim
referred to above shall include any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any such
Claim, whether or not resulting in any such action, suit, proceeding or claim.
The Corporation and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this paragraph 11 were determined by any
method of allocation which does not take into account the equitable
considerations referred to immediately above.
A person who is engaged in any fraud, fraudulent misrepresentation,
recklessness or gross negligence shall not, to the extent that a court of
competent jurisdiction in a final judgment determines that the Claim was caused
by that activity, be entitled to claim contributions therefor from any person
who is not engaged in that fraud, fraudulent misrepresentation, recklessness or
gross negligence.
(b) Right of Contribution in Addition to Other Rights
The rights to contribution provided in this paragraph 11 shall be in
addition to and not in derogation of any other right to contribution which the
Underwriters may have by statute or otherwise at law.
- 27 -
(c) Calculation of Contribution
In the event that a court of competent jurisdiction in a final judgment
determines that an Indemnifier is entitled to contribution from the Underwriters
under the provisions of any statute or at law, the Indemnifier shall be limited
to contribution in an amount not exceeding the lesser of:
(i) the portion of the full amount of the loss or liability giving
rise to such contribution for which the Underwriters are
responsible, as determined in subparagraph 11(a), and
(ii) the amount of the fee actually received by the Underwriters from
the Corporation under this Agreement.
(d) Notice of Claim for Contribution
Notification to the Corporation of a Claim pursuant to subparagraph 10(b)
shall be deemed to also constitute notice to the Corporation that a claim for
contribution by the Underwriters may arise and omission to so notify shall have
similar effect.
(e) Right of Contribution in Favour of Others
The Corporation hereby acknowledges and agrees that, with respect to
paragraphs 10 and 11 hereof, the Underwriters are contracting on their behalf
and as agent for its affiliates and for its and its affiliates' directors,
officers, employees and agents (collectively, the "BENEFICIARIES"). In this
regard the Underwriters shall act as trustee for the Beneficiaries of the
Corporation's covenants under paragraphs 10 and 11 hereof with respect to the
Beneficiaries and accept these trusts and shall hold and enforce the covenants
on behalf of the Beneficiaries.
12. SEVERABILITY
If any provision of paragraph 10 or 11 is determined to be void or
unenforceable in whole or in part, it shall be deemed not to affect or impair
the validity of any other provision of this Agreement and such void or
unenforceable provision shall be severable from this Agreement.
13. UNDERWRITERS' OBLIGATIONS
The Underwriters' obligations to purchase the Underwritten Shares in
accordance with this Agreement shall be several and not joint in that:
(a) each of us shall severally be obligated to purchase only the
percentage of such aggregate number of Underwritten Shares set
opposite its name as follows:
CIBC World Markets Inc................................... 29.97%
Scotia Capital Inc....................................... 29.97%
Deutsche Bank Securities Limited......................... 7.24%
HSBC Securities (Canada) Inc............................. 7.24%
Xxxxxxx Xxxxx Canada Inc................................. 7.24%
- 28 -
UBS Securities Canada Inc................................ 7.24%
BMO Xxxxxxx Xxxxx Inc.................................... 3.36%
GMP Securities Ltd....................................... 3.36%
National Bank Financial Inc.............................. 3.36%
Salman Partners Inc...................................... 1.02%
(b) if any of the Underwriters for whatever reason defaults in its
obligation to take up and pay for its respective percentage of the
Underwritten Shares, the other Underwriter(s) shall have the right,
but not the obligation, to purchase on a pro rata basis (or such other
basis as they may agree) all such Underwritten Shares not taken up and
paid for by the defaulting Underwriter(s).
An Underwriter which stands ready to purchase its percentage as stipulated
in (a) above of the aggregate number of Underwritten Shares to be purchased by
the Underwriters under this Agreement will have no liability to the Corporation
if another Underwriter defaults in its obligation to take up and pay for its
percentage of such Underwritten Shares. Nothing in this paragraph obliges the
Corporation to sell under this Agreement less than all the Underwritten Shares
(excluding, for greater certainty, any Underwritten Shares issuable upon
exercise of the Option) and if less than all of the Underwritten Shares
(excluding, for greater certainty, any Underwritten Shares issuable upon
exercise of the Option) are purchased the Corporation may terminate this
Agreement, or will relieve from responsibility to the Corporation under this
Agreement any Underwriter which has defaulted in its obligation to purchase its
applicable percentage of the aggregate number of Underwritten Shares to be sold
hereunder.
14. EXPENSES
Whether or not the transactions contemplated by this Agreement shall be
completed, all expenses incurred by the Corporation in connection with, or
incidental to, the issue, sale and delivery of the Underwritten Shares and all
expenses of or incidental to all other matters in connection with the
transaction set out in this Agreement shall be borne by the Corporation
including, without limitation, fees and expenses payable in connection with the
qualification of the Underwritten Shares, the filing fees incident to, all fees
and disbursements of counsel to the Corporation, local counsel and U.S. counsel,
all fees and expenses of the Corporation's auditors, fees and expenses relating
to the marketing of the Underwritten Shares (including, without limitation,
"road shows", marketing meetings, marketing documentation and institutional
investor meetings) and all costs incurred in connection with the preparation and
printing of the Preliminary Prospectuses, Final Prospectuses, Registration
Statement, Prospectus Amendments and certificates representing the Underwritten
Shares. In the event the transaction contemplated in this Agreement is
completed, the Underwriters shall be responsible for all fees and disbursements
of Canadian and U.S. counsel to the Underwriters (including all applicable
taxes, including GST) and all reasonable out-of-pocket expenses of the
Underwriters (including the Underwriters' travel expenses in connection with due
diligence, marketing meetings and "road shows") (collectively, the
"UNDERWRITERS' EXPENSES"). If the transaction contemplated by this Agreement is
not completed due to a breach of a term of this Agreement by the Corporation or
a condition described in paragraph 8 (other than subparagraphs 8(c) and (d)) not
being satisfied, the Corporation shall be responsible for the reasonable
Underwriters' Expenses. All amounts to be paid under this paragraph 14 shall be
paid forthwith upon receiving an invoice therefor.
- 29 -
15. RESTRICTIONS ON SALES
Unless this Agreement is terminated in accordance with its terms or the
Closing does not occur on the Closing Date, the Corporation shall not for a
period of 90 days after the Closing Date, (i) offer, pledge, sell, contract to
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, Common Shares of the Corporation or any
securities convertible into or exercisable or exchangeable for Common Shares, or
(ii) enter into any swap or other arrangement that transfers, in whole or in
part, any of the economic consequences of ownership of the Common Shares or such
other securities, whether any such transaction described in clause (i) or (ii)
above of this paragraph is to be settled by delivery of Common Shares or such
other securities, in cash or otherwise, other than the Underwritten Shares
offered pursuant to the transactions contemplated by this Agreement, without the
prior consent of the Underwriters, acting reasonably. The foregoing restrictions
shall not apply with respect to issuances of Common Shares by the Corporation in
connection with outstanding share compensation arrangements or existing
contractual commitments (in either case which are described in the Preliminary
Prospectuses or have been disclosed in writing to the Underwriters and are not
material), including the Corporation's obligations to issue Common Shares under
the Rights Plan, the 1987 Plan, the 1996 Xxxxxxxx LTIP, the 1993 Directors Plan
and the Debentures (all as defined in the Preliminary Prospectuses) and the
Corporation's two employee share purchase plans. For greater certainty, nothing
contained in this paragraph 15 shall be construed to in any way limit the
ability of the Corporation from issuing, transferring or otherwise dealing with
any securities of the Corporation if this Agreement is terminated in accordance
with its terms or the Closing does not occur on the Closing Date.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The respective representations, warranties, obligations and agreements of
the Corporation and the Underwriters contained in this Agreement and in any
certificate delivered pursuant to this Agreement or in connection with the
purchase and sale of the Underwritten Shares shall survive the purchase of the
Underwritten Shares and shall continue in full force and effect unaffected by
any subsequent disposition of the Underwritten Shares by the Underwriters or the
termination of the Underwriters' obligations and shall not be limited or
prejudiced by any investigation made by or on behalf of the Underwriters or the
Corporation, or any officer, director or controlling person of the Corporation
in connection with the preparation of the Preliminary Prospectuses, Final
Prospectuses or Registration Statement or the distribution of the Underwritten
Shares for a period of two years from the date hereof.
17. TIME OF THE ESSENCE
Time shall be of the essence of this Agreement.
18. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the Province of British Columbia and the laws of Canada applicable in
British Columbia.
- 30 -
19. SUCCESSORS
This Agreement shall enure to the benefit of, and be binding on, the
parties to this Agreement and any of their respective successors.
20. AUTHORIZATION
CIBC World Markets Inc. and Scotia Capital Inc., together, are hereby
authorized by each of the other Underwriters to act on its behalf and the
Corporation shall be entitled to and shall act on any notice given in accordance
with this paragraph or agreement entered into by or on behalf of the
Underwriters by CIBC World Markets Inc. and Scotia Capital Inc. which represents
and warrants that it has irrevocable authority to bind the Underwriters, except
as expressly contemplated in this Agreement or in respect of any consent to a
settlement pursuant to paragraph 10 or a notice of termination pursuant to
paragraph 9, which notice may be given by any of the Underwriters. CIBC World
Markets Inc. and Scotia Capital Inc. shall consult with the other Underwriters
concerning any material matter in respect of which it acts as representative of
the Underwriters.
21. NOTICE
Unless otherwise expressly provided in this Agreement, any notice,
statement, request or other communication to be given under this Agreement (a
"NOTICE") shall be in writing addressed to:
(i) the Corporation at:
Placer Dome Inc.
X.X. Xxx 00000 Xxxxxxx Xxxxxxx
Xxxxx 0000 - 0000 Xxxxxxxx Xx.
Xxxxxxxxx, XX X0X 0X0
Attention: Xxx XxXxxxxx,
Executive Vice President and Chief
Financial Officer
Fax: 000.000.0000
with a copy to:
Xxxxxxx, Xxxxx & Xxxx
19th Floor, The Grosvenor Building
0000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: Xxxx Xxxxxxx
Fax: 000.000.0000
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(ii) the Underwriters at:
CIBC World Markets Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: Xxx Xxxxx
Fax: 000.000.0000
and
Attention: Xx. Xxxxxx X. Xxxxxxxxxx, Vice President,
Associate General Counsel
Fax: 000.000.0000
and
Scotia Capital Inc.
000 Xxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: Xxxxx Xxxxxx
Fax: 000.000.0000
with a copy to:
Blake, Xxxxxxx & Xxxxxxx
000 Xxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxx
Fax: 000.000.0000
or to such other address as any of the parties may designate by notice given to
the others.
Each notice shall be personally delivered to the addressee or sent by
facsimile transmission to the addressee and (i) a notice which is personally
delivered shall, if delivered on a Business Day, be deemed to be given and
received on that day and, in any other case, be deemed to be given and received
on the first Business Day following the day on which it is delivered; and (ii) a
notice which is sent by facsimile transmission shall be deemed to be given and
received on the first Business Day following the day on which it is sent.
22. COUNTERPARTS AND BY FACSIMILE
This Agreement may be executed by any one or more of the parties to
this Agreement in any number of counterparts, and may be delivered by facsimile,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
- 32 -
23. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter of this Agreement and supersedes any and all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the parties and, except as incorporated by reference above, there
are no warranties, representations or other agreements between the parties in
connection with the subject matter of this Agreement unless signed by each party
and purporting to be an amendment to this Agreement.
[PAGE INTENTIONALLY LEFT BLANK]
- 33 -
If the foregoing is in accordance with your understanding and is
agreed to by you, please signify your acceptance by executing the enclosed
copies of this letter where indicated below and returning them to CIBC World
Markets Inc., facsimile number: 604.891.6330, upon which this letter as so
accepted shall constitute an Agreement among us.
Yours very truly,
CIBC WORLD MARKETS INC.
By: (Signed) Xxxxxx X. Xxxxx
---------------------------------------
Authorized Signatory
SCOTIA CAPITAL INC.
By: (Signed) Xxxxx Xxxxxx
---------------------------------------
Authorized Signatory
DEUTSCHE BANK SECURITIES LIMITED
By: (Signed) Xxxx Xxxxxx
---------------------------------------
Authorized Signatory
HSBC SECURITIES (CANADA) INC.
By: (Signed) Xxxxxxx X. Xxxxxx
---------------------------------------
Authorized Signatory
XXXXXXX XXXXX CANADA INC.
By: (Signed) Xxxxxxx Xxxxxxxx
---------------------------------------
Authorized Signatory
UBS SECURITIES CANADA INC.
By: (Signed) Xxxxxxx X. Xxxxxxx
---------------------------------------
Authorized Signatory
- 34 -
BMO XXXXXXX XXXXX INC.
By: (Signed) Xxxxx Xxxxxx
---------------------------------------
Authorized Signatory
GMP SECURITIES LTD.
By: (Signed) Xxxx Xxxxxxxx
---------------------------------------
Authorized Signatory
NATIONAL BANK FINANCIAL INC.
By: (Signed) Xxxxxx X. Xxxxxx
---------------------------------------
Authorized Signatory
SALMAN PARTNERS INC.
By: (Signed) Xxxxxxxx X. Xxxxxx
---------------------------------------
Authorized Signatory
The foregoing is accepted and agreed to as of the date first above written.
PLACER DOME INC.
By: (Signed) Xxxx X. Xxxxxxxx
---------------------------------------
Authorized Signatory
By: (Signed) Xxxxx X. Xxxxx
---------------------------------------
Authorized Signatory
SCHEDULE "A"
NAME JURISDICTION OF INCORPORATION
Placer Dome (CLA) Limited Canada
Xxxxxxxx Chile Inc. Barbados
Compania Xxxxxx Xxxxxxxx Chile
Placer Dome America Holding Corporation Nevada
Placer Xxxxxx, Inc. Delaware
Placer Dome US Inc. California
Placer Dome Asia Pacific Limited New South Wales
PDG Aureate Limited Cayman Islands
Placer Dome South Africa (Pty) Limited Republic of South Africa
Placer B-C Limited Barbados
Placer Dome Niugini Limited Papua New Guinea
Placer Dome (PNG) Limited Papua New Guinea
Placer Dome Africa Holdings (Cayman) Limited Cayman Islands
PDG Bank Limited Barbados
PDG Sona (Cayman) Limited Cayman Islands
PDG Finance SRL Barbados
PDG Finance (Cayman) LLC Cayman Islands
PDG Aurora LLC Cayman Islands
