LOCK-UP AGREEMENT
Exhibit
99.11
| THIS AGREEMENT is made as of the 10th______ day of December, 2008. | ||
| BETWEEN: | ||
|
Xxxxxxx
X. Taschereau_____________________________
|
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| (the “Shareholder”) | ||
| -and- | ||
| IAMGOLD CORPORATION, a corporation existing under the laws of Canada ( “IAMGOLD”) | ||
WHEREAS the Shareholder is the
registered and/or direct or indirect beneficial owner of the common shares of
Orezone Resources Inc. (“Orezone”) and the Orezone
Convertible Securities (as defined herein), if any, set forth on Schedule A
attached hereto;
AND WHEREAS the Shareholder
understands that IAMGOLD, Orezone and 7086130 Canada Inc. (“New Orezone”) are,
concurrently with the execution and delivery of this Agreement (as defined
herein), executing and delivering the Arrangement Agreement (as defined herein)
providing for the Arrangement (as defined herein);
AND WHEREAS this Agreement
sets out the terms and conditions of the agreement of the Shareholder to (i)
vote the Shareholder Shares (as defined herein) or cause the Shareholder Shares
to be voted in favour of the Arrangement Resolution (as defined herein) and (ii)
abide by the other restrictions and covenants set forth herein;
AND WHEREAS the Shareholder
acknowledges that IAMGOLD would not enter into the Arrangement Agreement but for
the execution and delivery of this Agreement by the Shareholder;
NOW THEREFORE this Agreement
witnesses that, in consideration of the premises and the covenants and
agreements herein contained, the parties hereto agree as follows:
ARTICLE 1
INTERPRETATION
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1.1
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Definitions
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In this
Agreement:
“Acquisition Proposal” means,
other than from or with IAMGOLD or an IAMGOLD Subsidiary, any merger,
amalgamation, statutory arrangement, recapitalization, take-over bid, sale of
material properties or assets (including, without limitation, the sale of all or
any part of the Orezone Assets or the Essakane Property), any lease, long-term
supply agreement or other arrangement having the same economic effect as a sale
of any such material properties or assets, any sale or grant of a royalty or
similar type transaction with respect to the Essakane Property (excluding the
Permitted Royalty Discussions), any liquidation, winding-up, sale or redemption
of a material number of shares or rights or interests therein or thereto or any
similar
transaction
involving Orezone or any of the Orezone Subsidiaries, or any other transaction
which would, or could, impede the completion of the Arrangement or any of the
other transactions contemplated in the Arrangement Agreement or a written
inquiry or proposal to do so, excluding the Arrangement, the Private Placement
and the other transactions contemplated by the Arrangement
Agreement;
“affiliate” has the meaning
ascribed thereto in the Securities Act
(Ontario);
“Agreement” means this lock-up
agreement dated the date hereof and made between IAMGOLD and the
Shareholder;
“Applicable Laws” means any
domestic or foreign statute, law, ordinance, rule, regulation, restriction,
published and legally binding regulatory policy or guideline, by-law (zoning or
otherwise), or order or any consent, exemption, approval or licence of any
domestic or foreign Governmental Entity that applies in whole or in part to the
parties hereto, as the context requires, or to their respective businesses,
undertakings, properties or securities including, without limitation, Applicable
Securities Laws;
“Applicable Securities Laws”
means Canadian Securities Laws and United States Securities Laws, as are
applicable in the circumstances;
“Arrangement” means the
arrangement under the provisions of section 192 of the CBCA, on the terms and
conditions set forth in the Plan of Arrangement, subject to any amendment or
supplement thereto made in accordance with this Agreement and the Plan of
Arrangement or made at the direction of the Court in the Final
Order;
“Arrangement Agreement” means
the arrangement agreement dated the date hereof among IAMGOLD, Orezone and New
Orezone entered into for the purpose of effecting the Arrangement, including the
schedules attached thereto, as the same may be supplemented or amended from time
to time;
“Arrangement Resolution” means
the Special Resolution of Orezone Shareholders approving the
Arrangement;
“Business Day” means a day
which is not a Saturday, Sunday or a civic or statutory holiday in Toronto,
Ontario;
“Canadian Securities Laws”
means the Securities
Act (Ontario) and the equivalent legislation in the other provinces and
in the territories of Canada, as amended from time to time, the rules,
regulations and forms made or promulgated under any such statute and the
published national instruments, multilateral instruments, policies, bulletins
and notices of the securities commissions and similar regulatory authorities of
each of the provinces and territories of Canada and the published rules and
policies of the Toronto Stock Exchange;
“CBCA” means the Canada Business Corporations
Act, as amended;
“Closing Date” means the
Business Day that is three Business Days after the granting of the Final Order
or such other date as the parties to the Arrangement Agreement may
agree;
“Convertible Debenture” means
the 6% convertible debenture dated July 1, 2008 and due July 1, 2011, in the
amount of CAD$10,000,000 issued by Orezone to the Debentureholder;
“Court” means the Ontario
Superior Court of Justice (Commercial List);
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“Debentureholder” means
MinQuest Fund I, L.P.;
“Effective Date” means the date
shown in the certificate of arrangement issued in accordance with section 262 of
the CBCA in respect of the Arrangement, being the Closing Date, or such other
date as may be agreed to by the parties to the Arrangement
Agreement;
“Essakane Property” means the
Essakane gold project in Burkina Faso held by Orezone, Essakane S.A. or Essakane
s.a.r.l., as more particularly described in Schedule D attached to the
Arrangement Agreement;
“Final Order” means the final
order of the Court approving the Arrangement, as such order may be amended by
the Court (with the consent of IAMGOLD and Orezone) at any time prior to the
Effective Date or, if appealed, then unless such appeal is withdrawn or denied,
as affirmed or as amended on appeal;
“Governmental Entity” means any
applicable (i) multinational, federal, provincial, state, regional, municipal,
local or other government, governmental or public department, central bank,
court, tribunal, arbitral body, commission, board, bureau, agency, domestic or
foreign, (ii) any subdivision, agent, commission, board or authority of any of
the foregoing, or (iii) any quasi-governmental or private body exercising any
regulatory, expropriation or taxing authority under or for the account of any of
the foregoing;
“Orezone Assets” means all of
the outstanding shares of Essakane (BVI) Limited, all of the outstanding shares
of Orezone Essakane (BVI) Limited, all of the outstanding shares of Gold Fields
Burkina Faso s.a.r.l., all of the outstanding shares of Essakane s.a.r.l. and
90% of the outstanding shares of Essakane S.A.;
“Orezone Convertible
Securities” means the outstanding warrants, convertible securities and
other rights to acquire Orezone Shares, including the Orezone Options and the
Convertible Debenture;
“Orezone Meeting” means the
special meeting of Orezone Shareholders, including any adjournment or
adjournments or postponement or postponements thereof, to be held for the
purposes of obtaining approval by Orezone Shareholders of the Arrangement
Resolution;
“Orezone Option” mean the
outstanding options to acquire Orezone Shares which have been issued pursuant to
the Orezone Stock Option Plans;
“Orezone Shareholders” means
holders of Orezone Shares;
“Orezone Shares” means the common
shares which Orezone is authorized to issue as presently
constituted;
“Orezone Stock Option Plans” means (i)
the stock option plan of Orezone as approved by the directors of Orezone and by
the Orezone Shareholders in 1997 and, (ii) the stock option plan of Orezone as
approved by the board of directors of Orezone on April 24, 2008 and by the
Orezone Shareholders on May 29, 2008;
“Permitted Royalty Discussions”
means the discussions relating to a potential granting of a royalty in respect
of the Essakane Property disclosed to IAMGOLD;
“Person” means any individual,
corporation, firm, partnership (including, without limitation, a limited
partnership), sole proprietorship, syndicate, joint venture, trustee, trust,
any unincorporated
organization or association, any government or instrumentality thereof and any
tribunal;
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“Plan” or “Plan of Arrangement” means the
plan of arrangement to be substantially in the form and content of Schedule A
attached to the Arrangement Agreement as amended or varied pursuant to the terms
thereof;
“Private Placement” means the
subscription and purchase by IAMGOLD of 71,428,571 Orezone Shares at a
subscription price of $0.28 per share, in accordance with the provisions of
Article 9 of the Arrangement Agreement;
“Shareholder Orezone Convertible
Securities” means the Orezone Convertible Securities owned, directly or
indirectly, by the Shareholder or an affiliate of the Shareholder;
“Shareholder Securities” means
the Shareholder Shares and the Shareholder Orezone Convertible Securities
collectively;
“Shareholder Shares” means all Orezone
Shares, directly or indirectly owned by the Shareholder or an affiliate of the
Shareholder or over which the Shareholder or an affiliate of the Shareholder
exercises voting control, as set out in Schedule A attached hereto, together
with all additional Orezone Shares directly or indirectly acquired or over which
control or direction is acquired subsequent to the date hereof by the
Shareholder or any affiliate of the Shareholder, including, but not limited to,
the Orezone Shares acquired by the Shareholder or by an affiliate of the
Shareholder pursuant to the exercise of the rights of the Shareholder under the
Shareholder Orezone Convertible Securities;
“Special Resolution” has the
meaning ascribed to such term in the CBCA;
“Termination Deadline” means
April 15, 2009 or such other date as the parties to the Arrangement Agreement
may otherwise agree upon in writing;
“United States Securities Laws”
means the Securities Act of 1933, as amended, of the United States of America,
and the rules and regulations promulgated from time to time thereunder, the
Securities Exchange Act of 1934, as amended, of the United States of America,
and the rules and regulations promulgated from time to time thereunder, together
with the applicable blue sky or securities legislation in the states of the
United States, and the published rules and policies of the New York Stock
Exchange, Inc. and the NYSE Alternext U.S., LLC.
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1.2
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Schedules
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The
following schedule attached hereto constitutes an integral part of this
Agreement:
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Schedule
A
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Shareholder
Securities
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ARTICLE 2
COVENANTS OF
IAMGOLD
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2.1
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Obligations
under Arrangement Agreement
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IAMGOLD
hereby covenants and irrevocably agrees in favour of the Shareholder that it
will comply with its obligations set forth in the Arrangement
Agreement.
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ARTICLE 3
COVENANTS OF THE
SHAREHOLDER
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3.1
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General
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The
Shareholder hereby covenants and irrevocably agrees in favour of IAMGOLD that,
from the date hereof until the earlier of (i) the Effective Date and (ii) the
termination of this Agreement in accordance with Article 5 hereof, except as
permitted by this Agreement, such Shareholder:
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(a)
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will
not, directly or indirectly, through any officer, director, employee,
representative (including any financial or other advisor) or agent of the
Shareholder or any of the associates or affiliates of the Shareholder
(collectively the “Representatives”), (i)
solicit, initiate, facilitate or knowingly encourage (including by way of
furnishing information or entering into any form of agreement, arrangement
or understanding) an Acquisition Proposal or the initiation of any
inquiries or proposals regarding an Acquisition Proposal, (ii) participate
in any substantive discussions or negotiations with any person (other than
IAMGOLD or any of the associates or affiliates of IAMGOLD) regarding an
Acquisition Proposal, (iii) approve, accept, endorse or recommend, or
propose publicly to approve, accept, endorse or recommend, any Acquisition
Proposal, or (iv) accept or enter into or publicly propose to accept or
enter into, any agreement, understanding or arrangement or other contract
in respect of an Acquisition
Proposal;
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(b)
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will
immediately cease and cause its Representatives to cease and cause to be
terminated any solicitation, encouragement, discussion or negotiation with
any Persons with respect to any Acquisition
Proposal;
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(c)
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will
promptly (and in any event within 24 hours after it has received any
proposal, inquiry, offer or request) notify IAMGOLD, at first orally and
then in writing, in the event it or its Representatives receives an
Acquisition Proposal, including the material terms and conditions thereof,
and the identity of the Person or Persons making the Acquisition Proposal,
provided that the Shareholder will also provide such other details of such
proposal, inquiry, offer or request, or any amendment to any of the
foregoing, as IAMGOLD may reasonably
request;
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(d)
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will
not option, sell, transfer, pledge, encumber, grant a security interest
in, hypothecate or otherwise convey any Shareholder Securities, or any
right or interest therein (legal or equitable), to any Person or group or
agree to do any of the foregoing;
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(e)
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will
not grant or agree to grant any proxy or other right to vote any
Shareholder Shares, or enter into any voting trust, vote pooling or other
agreement with respect to the right to vote, call meetings of shareholders
or give consents or approval of any kind as to the Shareholder Shares that
in each case might reasonably be regarded as likely to prevent or delay
the successful completion of the Arrangement or the other transactions
contemplated by the Arrangement Agreement or this
Agreement;
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(f)
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will
not take any other action of any kind which could reasonably be expected
to delay or interfere with the completion of the Arrangement and the other
transactions contemplated by the Arrangement Agreement or this
Agreement;
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(g)
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will
not vote or cause to be voted any Shareholder Shares in respect of any
proposed action by Orezone or its shareholders, associates or affiliates
or any other Person in a manner which might reasonably be regarded as
likely to prevent or delay the successful completion of the Arrangement or
the other transactions contemplated by the Arrangement Agreement or this
Agreement;
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(h)
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irrevocably
waives to the fullest extent permitted by law any and all rights of the
Shareholder to dissent with respect to the Arrangement Resolution or any
other resolution relating to the approval of the Arrangement and not
exercise any such right with respect to any such
resolution;
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(i)
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will,
in the event that any transaction other than the Arrangement is presented
for approval of or acceptance by the securityholders of Orezone by a
Person or group of Persons other than IAMGOLD, its associates or
affiliates, not, directly or indirectly, vote in favour of, accept, assist
or otherwise further the successful completion of such transaction or
purport to tender or deposit into any such transaction any of the
Shareholder Securities;
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(j)
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will,
in the event that any transaction other than the Arrangement is presented
by IAMGOLD for approval of or acceptance by the securityholders of
Orezone, vote in favour of, accept, assist or otherwise further the
successful completion of such transaction or purport to tender or deposit
into any such transaction the Shareholder Securities, provided that the
value of the consideration for the Shareholder Shares under such
transaction is equal to or higher than the value of the consideration for
the Shareholder Shares under the Arrangement (an “Alternate IAMGOLD
Transaction”); and
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(k)
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will
take all such steps as are necessary or advisable to ensure that at the
Effective Date, the Shareholder Shares and the Shareholder Orezone
Convertible Securities, if applicable, will be held by such Shareholder
with good and marketable title thereto, free and clear of any and all
mortgages, liens, charges, restrictions, security interests, adverse
claims, pledges, encumbrances and demands of any nature or kind whatsoever
and will not be subject to any shareholders’ agreement, voting trust or
similar agreement or any option, right or privilege (whether by law,
pre-emptive or contractual) capable of becoming a shareholders’ agreement,
voting trust or other agreement affecting the Shareholder Securities or
the ability of the Shareholder to exercise all ownership rights thereto,
including the voting of any Shareholder Shares in favour of the
Arrangement Resolution;
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provided
however that nothing in this section 3.1 will prevent the Shareholder, if the
Shareholder is a director or officer of Orezone, and solely in his or her
capacity as such director or officer; (i) from acting in accordance with the
exercise of his or her fiduciary duties or other legal obligation to act in the
best interests of Orezone, or (ii) from taking any action permitted by
section 4.2 and 4.3 of the Arrangement Agreement, if such action is
required in order for the Shareholder to fulfill his or her fiduciary duty as a
director and/or officer of Orezone.
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3.2
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Voting
of the Shareholder Shares in Favour of the Arrangement
Resolution
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The
Shareholder hereby agrees with IAMGOLD that it will vote or cause to be voted
the Shareholder Shares and it will, on or before the fifth Business Day prior to
Orezone Meeting, complete and cause forms of
proxy in respect of all of the Shareholder Shares, and any other documents
required in accordance with the Arrangement, to be validly delivered in support
of the Arrangement Resolution, and will not withdraw the forms of proxy except
as expressly otherwise provided in this Agreement including, but not limited to,
section 3.1 hereof.
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3.3
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Voting
or Deposit of the Shareholder Shares in Favour of an Alternate IAMGOLD
Transaction
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The
Shareholder hereby agrees with IAMGOLD that, if the Shareholder is presented
with an Alternate IAMGOLD Transaction, the Shareholder shall vote, or cause to
be voted, or will deposit, or cause to be deposited, as the case may be, the
Shareholder Shares and, if applicable, the Shareholder Orezone
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Convertible
Securities in favour of such Alternate IAMGOLD Transaction in the manner or in
one of the manners required by the terms and conditions of such Alternate
IAMGOLD Transaction.
ARTICLE 4
REPRESENTATIONS AND
WARRANTIES
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4.1
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Representations
and Warranties of the
Shareholder
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The
Shareholder hereby represents and warrants to and covenants with IAMGOLD as
follows, and acknowledges that IAMGOLD is relying upon such representations,
warranties and covenants in entering into this Agreement and the Arrangement
Agreement.
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(a)
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Incorporation.
If the Shareholder is a corporation or other legal entity, the Shareholder
is a subsisting corporation or other entity under the laws of the
jurisdiction of its existence. The Shareholder has all necessary power,
authority, capacity and right to enter into this Agreement and to carry
out each of its obligations under this
Agreement.
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(b)
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Authorization.
The execution and delivery of this Agreement by the Shareholder and the
consummation by the Shareholder of the transactions contemplated hereunder
have been authorized by the directors of the Shareholder, if applicable,
and no other proceeding on the part of the Shareholder is necessary to
authorize this Agreement or the transactions contemplated
hereby.
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(c)
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Enforceability.
This Agreement has been executed and delivered by the Shareholder and
constitutes a legal, valid and binding obligation enforceable by IAMGOLD
against the Shareholder in accordance with its terms, subject, however, to
limitations with respect to enforcement imposed by law in connection with
bankruptcy or similar proceedings, the equitable power of the courts to
stay proceedings before them and the execution of judgments and to the
extent that equitable remedies such as specific performance and injunction
are in the discretion of the court from which they are
sought.
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(d)
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Ownership of Orezone
Shares and Other Securities. The Shareholder is, and, will be
immediately prior to the Effective Date, the direct or indirect beneficial
owner of the Shareholder Shares and, if not converted, exchanged or
exercised, the Shareholder Orezone Convertible Securities, if any, with
good and marketable title thereto, free and clear of any and all
mortgages, liens, charges, restrictions, security interests, adverse
claims, pledges, encumbrances and demands or rights of others of any
nature or kind whatsoever. The Shareholder is not, directly or
indirectly, a party to, bound or affected by or subject to, any Orezone
by-law, contract or provision, any statute, regulation, judgment, order,
decree or law which would in any material respect be violated,
contravened, breached by, or under which any material
default would occur as a result of, the execution and delivery of this
Agreement or the consummation of any of the transactions provided for in
this Agreement.
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(e)
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No
Agreements. No Person has any agreement or option, or
any right or privilege (whether by law, pre-emptive or contractual)
capable of becoming an agreement or option, for the purchase, acquisition
or transfer of any of the Shareholder Securities, or any interest therein
or right thereto, except pursuant to this
Agreement.
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(f)
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Voting. Other
than pursuant to this Agreement, none of the Shareholder Shares is subject
to any proxy, voting trust, vote pooling or other agreement with respect
to the right to vote, call meetings of shareholders or give consents or
approvals of any kind.
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(g)
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Consents. No
consent, approval or authorization of, or declaration or filing with, or
notice to, any Governmental Entity which has not been received or made is
required by the Shareholder in connection with the execution and delivery
of this Agreement by the
Shareholder.
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(h)
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Legal
Proceedings. There are no legal proceedings in progress or pending
before any Governmental Entity or threatened against the Shareholder or
any of its associates or affiliates that would adversely affect in any
manner the ability of the Shareholder to enter into this Agreement and to
perform its obligations hereunder or the title of the Shareholder to any
of the Shareholder Securities and there is no judgment, decree or order
against the Shareholder that would adversely affect in any manner the
ability of the Shareholder to enter into this Agreement and to perform its
obligations hereunder or the title of any of the Shareholder
Securities.
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(i)
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No Other
Securities. The only securities of Orezone beneficially
owned or controlled, directly or indirectly, by the Shareholder as at the
date hereof are the Shareholder Securities set out in Schedule A attached
hereto and the Shareholder has no other agreement or option, or right or
privilege (whether by law, pre emptive or contractual) capable of becoming
an agreement or option, for the purchase or acquisition by the Shareholder
or transfer to the Shareholder of additional securities of
Orezone.
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4.2
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Representations
and Warranties of IAMGOLD
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IAMGOLD
hereby represents and warrants to the Shareholder as follows, and acknowledges
that the Shareholder is relying upon such representations, warranties and
covenants in entering into this Agreement:
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(a)
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Corporate
Power. IAMGOLD has the requisite corporate power and authority to
enter into this Agreement and to perform its obligations
hereunder.
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(b)
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Authorization.
The execution and delivery of this Agreement by IAMGOLD and the
consummation by IAMGOLD of the transactions contemplated hereunder have
been authorized by the directors of IAMGOLD and no other proceeding on the
part of IAMGOLD is necessary to authorize this Agreement or the
transactions contemplated hereby.
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(c)
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Enforceability. This
Agreement has been executed and delivered by IAMGOLD and constitutes a
legal, valid and binding agreement enforceable by the Shareholder against
IAMGOLD in accordance with its terms, subject, however, to limitations
with respect to enforcement imposed by law in connection with bankruptcy
or similar proceedings, the equitable power of the courts to stay
proceedings before them and the execution of judgments and
to the extent that equitable remedies such as specific performance and
injunction are in the discretion of the court from which they are
sought.
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(d)
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Consents. No
consent, approval or authorization of, or declaration or filing with, or
notice to, any Governmental Entity which has not been received or made is
required by IAMGOLD in connection with the execution and delivery of this
Agreement by IAMGOLD, except as provided in the Arrangement
Agreement.
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ARTICLE 5
TERMINATION
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5.1
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Termination
by IAMGOLD
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IAMGOLD,
when not in material default in the performance of its obligations under this
Agreement or the Arrangement Agreement, may, without prejudice to any of its
rights hereunder and in its sole discretion, terminate this Agreement by written
notice to the Shareholder if:
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(a)
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any
of the representations and warranties of the Shareholder under this
Agreement shall not be true and correct in all material respects;
or
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(b)
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the
Shareholder shall not have complied with its covenants to IAMGOLD
contained in this Agreement in all material
respects;
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provided,
however, that such termination shall be without prejudice to any rights which
IAMGOLD may have as a result of any default by the Shareholder prior to such
termination.
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5.2
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Termination
by the Shareholder
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The
Shareholder, when not in material default of its performance of its obligations
under this Agreement, may, without prejudice to any of its rights hereunder and
in its sole discretion, terminate this Agreement by written notice to IAMGOLD
if:
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(a)
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any
of the representations and warranties of IAMGOLD under this Agreement
shall not be true and correct in all material
respects;
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(b)
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IAMGOLD
shall have amended the Arrangement Agreement to provide for lesser
consideration per Orezone Share under the Arrangement without the prior
written consent of the Shareholder or in any respect which is adverse to
the Shareholder without the prior written consent of the Shareholder,
provided that IAMGOLD may, without the consent of the Shareholder amend
the terms of the Arrangement (A) to increase the consideration (or the
value of the consideration) for the Orezone Shares under the Arrangement,
or (B) extend the Effective Date to a date no later than the Termination
Deadline; or (C) to the extent that IAMGOLD has the power to do so, to
waive any condition of the Arrangement or the Arrangement Agreement;
or
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(c)
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IAMGOLD
shall not have complied with its covenants to the Shareholder contained
herein in all material respects.
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5.3
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Automatic
Termination
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Unless
extended by mutual agreement of the Shareholder, on the one hand, and IAMGOLD,
on the other hand, this Agreement shall automatically terminate on the
Termination Deadline. In addition, this Agreement shall automatically
terminate in the event that the Arrangement Agreement is terminated by any party
thereto in accordance with its terms.
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5.4
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Agreement
to Terminate
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This
Agreement may be terminated by a written instrument executed by each of IAMGOLD
and the Shareholder.
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5.5
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Effect
of Termination
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If this
Agreement is terminated in accordance with this Article 5, the provisions of
this Agreement will become void and neither IAMGOLD nor the Shareholder shall
have liability to the other of them, except in respect of a breach of the
representations, warranties, obligations, terms or conditions of this Agreement
which occurred prior to such termination in which case either IAMGOLD or the
Shareholder shall be entitled to pursue any and all remedies at law or equity
which may be available to it.
ARTICLE 6
GENERAL
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6.1
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Further
Assurances
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The
Shareholder and IAMGOLD will, from time to time, execute and deliver all such
other documents and instruments and do all such acts and things as the other of
them may reasonably require (at the cost of the requesting party) to effectively
carry out or better evidence or perfect the full intent and meaning of this
Agreement.
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6.2
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Survival
of Representations and
Warranties
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No
investigations made by or on behalf of IAMGOLD or any of its authorized agents
at any time shall have the effect of waiving, diminishing the scope of or
otherwise affecting any representation, warranty or covenant made by the
Shareholder herein or pursuant hereto.
No
investigations made by or on behalf of the Shareholder or any of its authorized
agents at any time shall have the effect of waiving, diminishing the scope of or
otherwise affecting any representation, warranty or covenant made by IAMGOLD
herein or pursuant hereto.
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6.3
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Disclosure
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Except as
required by Applicable Laws or regulations or by any Governmental Entity or in
accordance with the requirements of any stock exchange, no party hereto shall
make any public announcement or statement with respect to this Agreement without
the approval of IAMGOLD and the Shareholder which shall not be unreasonably
withheld or delayed. Moreover, the parties hereto agree to consult
with each other prior to issuing each public announcement or statement with
respect to this Agreement, subject to the overriding obligations of Applicable
Laws. The parties hereto acknowledge that the terms of this Agreement
will be publicly disclosed.
6.4 Assignment
Subject
to prior written notice to the Shareholder, IAMGOLD may assign all or part of
its rights under this Agreement to a direct or indirect wholly-owned subsidiary
of IAMGOLD, but, if such assignment takes place, IAMGOLD shall continue to be
liable jointly and severally with the assignee for any obligations
hereunder. This Agreement shall not be otherwise assignable by any
party hereto without the prior written consent of the other party hereto, which
consent may not be unreasonably withheld, conditioned or delayed.
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6.5
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Time
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Time
shall be of the essence of this Agreement.
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6.6
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Independent
Legal Advice
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The
Shareholder acknowledges that it has been advised to seek independent legal
advice with respect to this Agreement and the Shareholder has either obtained
such advice or consciously determined that it does not need such advice and
that, in either case, it is entering into this Agreement of its own free will,
under no compulsion or duress and that it understands and is aware of the terms
and conditions hereof.
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6.7
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Currency
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All sums
of money referred to in this Agreement shall mean Canadian funds.
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6.8
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Governing
Law
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This
Agreement shall be governed by and construed in accordance with the laws of the
Province of Ontario and the federal laws of Canada applicable therein (without
regard to conflict of laws principles).
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6.9
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Entire
Agreement
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This
Agreement, including the schedule hereto and the provisions of the Arrangement
Agreement incorporated herein by reference, constitutes the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes any prior agreement, representation or understanding with
respect thereto.
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6.10
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Amendments
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This
Agreement may not be modified, amended, altered or supplemented, except upon the
execution and delivery of a written agreement executed by all of the parties
hereto.
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6.11
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Notices
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Any
notice, request, consent, agreement or approval which may or is required to be
given pursuant to this Agreement shall be in writing and shall be sufficiently
given or made if delivered, or sent by telecopier, in the case of:
| (a) | to IAMGOLD, addressed as follows: | ||
| 000 Xxx Xxxxxx, Xxxxx 0000 | |||
| XX Xxx 000 | |||
| Xxxxxxx, XX X0X 0X0 | |||
| Attention: | President and Chief Executive Officer | ||
| Telephone: | (000) 000-0000 | ||
| Fax: | (000) 000-0000 | ||
| with a copy (which shall not constitute notice) to: | |||
| Fraser Xxxxxx Casgrain LLP | |||
| 1 First Canadian Place | |||
| 000 Xxxx Xxxxxx Xxxx | |||
| Xxxxxxx, XX X0X 0X0 | |||
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| Attention: | Xxxxx Xxxxx | ||
| Telephone: | (000) 000-0000 | ||
| Fax: | (000) 000-0000 |
(b) the
Shareholder at the addresses shown on Schedule A attached hereto
or to
such other address as the relevant party hereto may from time to time advise by
notice in writing given pursuant to this section. The date of receipt
of any such notice, request, consent, agreement or approval shall be deemed to
be the date of delivery or sending thereof if sent or delivered during normal
business hours on a Business Day at the place of receipt and, otherwise, on the
next following Business Day.
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6.12
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Specific
Performance and other Equitable
Rights
|
It is
recognized and acknowledged that a breach by any party hereto of any material
obligations contained in this Agreement will cause the other parties hereto to
sustain injury for which it would not have an adequate remedy at law for money
damages. Accordingly, in the event of any such breach, any aggrieved party
hereto shall be entitled to the remedy of specific performance of such
obligations and interlocutory, preliminary and permanent injunctive and other
equitable relief in addition to any other remedy to which it may be entitled, at
law or in equity.
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6.13
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Expenses
|
Each of
the parties hereto shall pay its respective legal, financial advisory and
accounting costs and expenses incurred in connection with the preparation,
execution and delivery of this Agreement and all documents and instruments
executed or prepared pursuant hereto and any other costs and expenses whatsoever
and howsoever incurred.
[Remainder
of page intentionally left blank]
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6.14
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Counterparts
|
This
Agreement may be executed in one or more counterparts which together shall be
deemed to constitute one valid and binding agreement, and delivery of the
counterparts may be effected by means of telecopier transmission.
IN WITNESS WHEREOF the parties
hereto have executed this Agreement as of the date first written
above.
|
SIGNED, SEALED AND
DELIVERED in the
presence of:
|
)
)
)
)
)
|
||||
|
(signed)
|
)
|
(signed)
Xxxxxxx
X. Xxxxxxxxxx
|
|||
|
Name:
|
)
)
|
Print
Name:
|
Xxxxxxx
X. Xxxxxxxxxx
|
||
|
|
|||||
|
IAMGOLD
CORPORATION
|
|||||
|
By:
|
(signed)
Xxxxxx Xxxxxx
|
||||
|
Name: Xxxxxx
Xxxxxx
|
|||||
|
Title:
President and Chief Executive
Officer
|
|||||
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SCHEDULE A
Shareholder
Securities
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Name
of Shareholder
|
Address
of Shareholder
|
Number
of Orezone
Shares
and Orezone
Convertible
Securities
|
|
Xxxxxxx
X. Xxxxxxxxxx
|
200,000
Options
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