BID SUPPORT AND
PURCHASE AGREEMENT
Between
XXXXXXX GOLD CORPORATION
- and -
GOLDCORP INC.
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October 30, 2005
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TABLE OF CONTENTS
ARTICLE 1
INTERPRETATION
1.1 Defined Terms........................................................1
1.2 Currency.............................................................6
1.3 Sections and Headings................................................7
1.4 Number, Gender and Persons...........................................7
1.5 Meaning of Including.................................................7
1.6 Contra Proferentum...................................................7
1.7 Governing Law........................................................7
1.8 Schedules............................................................7
1.9 Commercially Reasonable Best Efforts.................................7
ARTICLE 2
THE BID
2.1 Bid by Barrick.......................................................8
2.2 Regulatory Approvals.................................................8
2.3 Marketing of Bid.....................................................8
2.4 Increase in Bid Consideration........................................9
2.5 Put Option Conversion................................................9
2.6 Second Step Transaction..............................................9
2.7 Post-Completion Reorganization.......................................9
ARTICLE 3
COOPERATION AND EXCLUSIVITY
3.1 Mutual Cooperation Covenants........................................10
3.2 Exclusivity Covenant from Barrick...................................10
3.3 Exclusivity Covenant from Goldcorp..................................11
3.4 Acquisition and Ownership of Placer Shares..........................12
3.5 Special Definitions for this Article 3..............................12
ARTICLE 4
JOINT EXPENSES
4.1 Joint Expenses......................................................13
4.2 Sharing of Joint Expenses...........................................13
4.3 Exceptions to Sharing of Joint Expenses.............................13
4.4 Expenses that are not Joint Expenses................................14
4.5 Interest............................................................14
ARTICLE 5
CONVERSION INTO NEGOTIATED TRANSACTION
5.1 Due Diligence Access to Placer......................................15
5.2 Negotiations with Placer............................................15
ARTICLE 6
PURCHASE AND SALE OF TRANSFERRED ASSETS
6.1 Transferred Assets and Assumed Liabilities..........................16
6.2 Treatment of Cash...................................................17
6.3 Purchase and Sale of Transferred Assets.............................17
6.4 Purchase Price......................................................17
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6.5 Assumption of Assumed Liabilities...................................19
6.6 Purchase Price Adjustments..........................................19
6.7 Purchase Price Deposit..............................................19
6.8 Impact of CLA Tax Dispute...........................................20
6.9 Post-Closing Adjustments............................................20
6.10 Pueblo Viejo Interest...............................................21
6.11 Xxxxxxxx Interest...................................................21
ARTICLE 7
REPRESENTATIONS AND WARRANTIES REGARDING
TRANSFERRED ASSETS AND ASSUMED LIABILITIES
ARTICLE 8
REPRESENTATIONS AND WARRANTIES OF BARRICK
8.1 Organization........................................................22
8.2 No Violation........................................................22
8.3 Enforceability......................................................22
ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF GOLDCORP
9.1 Organization........................................................22
9.2 No Violation........................................................22
9.3 Enforceability......................................................23
9.4 Availability of Financing...........................................23
ARTICLE 10
COVENANTS OF BARRICK
10.1 Management of Goldcorp Assets and Goldcorp Liabilities..............23
10.2 Post-Closing Reorganization Records.................................23
ARTICLE 11
COVENANTS OF GOLDCORP
11.1 Bid Documents.......................................................24
11.2 Regulatory Filings..................................................24
11.3 Maintain Cash Resources.............................................25
11.4 Provide Confirmation of No Material Adverse Change..................25
ARTICLE 12
MUTUAL COVENANTS
12.1 Preservation of Books and Records...................................26
12.2 Tax Matters.........................................................26
12.3 Satisfaction of Conditions of Closing...............................26
ARTICLE 13
CONDITIONS OF CLOSING IN FAVOUR OF GOLDCORP
13.1 Conditions of Closing in Favour of Goldcorp.........................27
ARTICLE 14
CONDITIONS OF CLOSING IN FAVOUR OF BARRICK
14.1 Conditions of Closing in Favour of Barrick..........................28
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ARTICLE 15
CLOSING ARRANGEMENTS AND TERMINATION
15.1 Date and Place of Closing...........................................30
15.2 Purchase Termination Date...........................................30
15.3 Early Termination for Material Breach...............................30
15.4 Termination upon Change in Control..................................31
15.5 Further Assurances..................................................31
ARTICLE 16
INDEMNIFICATION
16.1 Indemnification by Barrick..........................................32
16.2 Indemnification by Goldcorp.........................................32
16.3 Notice of Claim.....................................................33
16.4 Tax Claims..........................................................33
16.5 Direct Claims.......................................................34
16.6 Interest on Loss....................................................34
16.7 Third Party Claims..................................................34
16.8 Settlement of Third Party Claims....................................35
16.9 Cooperation.........................................................35
16.10 Exclusivity.........................................................35
16.11 Mitigation..........................................................36
ARTICLE 17
SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND INDEMNITIES
17.1 Survival of Representations Warranties, Covenants and
Indemnities of Barrick..........................................36
17.2 Survival of the Representations, Warranties, Covenants
and Indemnities of Goldcorp......................................36
17.3 Notice of Claim.....................................................37
ARTICLE 19
MISCELLANEOUS
19.1 Notices.............................................................38
19.2 Commissions, etc....................................................39
19.3 Consultation........................................................39
19.4 Assignment and Enforceability.......................................39
19.5 Entire Agreement....................................................40
19.6 Amendments and Waiver...............................................40
19.7 Severability........................................................40
19.8 Time of Essence.....................................................40
19.9 Counterparts; Facsimile.............................................40
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BID SUPPORT AND PURCHASE AGREEMENT
THIS AGREEMENT dated the 30th day of October, 2005.
B E T W E E N:
XXXXXXX GOLD CORPORATION,
a corporation existing under the
laws of the Province of Ontario,
(referred to in this Agreement as "BARRICK"),
- and -
GOLDCORP INC.,
a corporation existing under the laws of the
Province of Ontario,
(referred to in this Agreement as "GOLDCORP").
WHEREAS Barrick intends to announce, on the Announcement Date, an offer to
acquire all of the outstanding Placer Shares;
AND WHEREAS Goldcorp has agreed to support Xxxxxxx'x offer and to acquire
certain assets and assume certain liabilities of Placer following Xxxxxxx'x
acquisition of all of the outstanding Placer Shares, subject to the terms and
conditions set forth herein;
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the
respective covenants, agreements, representations, warranties and indemnities
contained in this Agreement and for other good and valuable consideration (the
receipt and sufficiency of which are acknowledged by each party), the parties
covenant and agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINED TERMS
For the purpose of this Agreement, unless the context otherwise requires,
the following terms shall have the respective meanings set out below and
grammatical variations of such terms shall have corresponding meanings:
(a) "AFFILIATE" has the meaning attributed to that term in the
Securities Act;
(b) "ANNOUNCEMENT DATE" means October 31, 2005;
(c) "ASSUMED LIABILITIES" has the meaning set out in Section 6.1(b);
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(d) "BARRICK CONTROL DATE" means the later of (i) the date on which
Barrick first acquires at least 66 2/3% of the issued and
outstanding Placer Shares (on a fully-diluted basis), and (ii) the
first date on which persons appointed by Barrick comprise a majority
of the board of directors of Placer;
(e) "BARRICK SHARES" means common shares in the capital of Barrick;
(f) "BID" means the offer by Barrick to acquire all of the issued and
outstanding Placer Shares to be announced on the Announcement Date,
as the same may be varied or extended from time to time;
(g) "BID CONSIDERATION", at any time, means the amount offered by
Barrick for each issued and outstanding Placer Share pursuant to the
Bid (for purposes of this definition, any Barrick Shares offered
pursuant to the Bid shall be valued at the closing price of the
Barrick Shares on the New York Stock Exchange on the trading day
prior to the Announcement Date);
(h) "BID DOCUMENT" has the meaning set out in Section 11.1;
(i) "BID EXPIRATION DATE" means the day on which the Bid terminates or
is withdrawn;
(j) "BUMP" means the increase in the cost to Barrick of the CLA Shares
to be acquired by Barrick pursuant to the Post-Completion
Reorganization, up to an amount that is at least equal to the
portion of the Purchase Price allocated to the CLA Shares, pursuant
to a designation under subsection 88(l) of the Tax Act;
(k) "BUSINESS DAY" means a day of the year other than a Saturday, a
Sunday or a day generally observed as a holiday in Toronto, Ontario
or Vancouver, British Columbia;
(l) "CASH" means all cash, restricted cash and short-term investments;
(m) "CLA" means Placer Dome (CLA) Limited, a corporation existing under
the laws of Canada;
(n) "CLA SHARES" means all of the issued and outstanding shares of CLA;
(o) "CLA TAX DISPUTE" means CLA's dispute of a reassessment of Ontario
mining taxes for the taxation years from 1995 to 2001, inclusive, in
respect of which leave to appeal was granted by the Supreme Court of
Canada on April 21, 2005;
(p) "CLAIM" has the meaning set out in Section 16.3;
(q) "CLOSING" has the meaning set out in Section 15.1;
(r) "CLOSING DATE" has the meaning set out in Section 15.1;
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(s) "COMMITMENT LETTER" has the meaning set out in Section 9.4;
(t) "CONFIDENTIALITY AGREEMENT" has the meaning set out in Section 19.5;
(u) "CONVERTED CONSENSUAL TRANSACTION" has the meaning set out in
Section 5.2;
(v) "DEFAULTING PARTY" has the meaning set out in Section 15.3;
(w) "DEPOSIT" has the meaning set out in Section 6.7(a);
(x) "DEPOSIT INTEREST" has the meaning set out in Section 6.7(a);
(y) "DIRECT CLAIM" has the meaning set out in Section 16.3;
(z) "FINANCIAL ADVISORS" means RBC Dominion Securities Inc. and Xxxxxxx
Xxxxx & Co. Inc., financial advisors to Barrick and Goldcorp in
respect of the Bid and the purchase and sale of the Goldcorp Assets;
(aa) "FULLY-DILUTED BASIS" means the number of Placer Shares which would
be outstanding if all rights to acquire Placer Shares of any nature
were exercised other than those which are not, and cannot in
accordance with their terms become, exercisable within 120 days
following the Bid Expiration Date, but excluding Placer Shares
issuable upon the exercise of rights issued pursuant to Placer's
shareholder rights plan;
(bb) "GOLDCORP ASSETS" means the assets described on Schedule 1.1(bb);
(cc) "GOLDCORP LIABILITIES" means all of the Liabilities relating solely
to the Goldcorp Assets and all past, present and future business,
operations and activities carried on, conducted on or relating to
such properties or using such assets, including employment
commitments and other Liabilities to current and former employees of
and service providers to such operations and activities,
environmental, closure and reclamation Liabilities (including
Liabilities under letters of credit, bonds or other financial
security arrangements in respect of same), capital and operating
lease Liabilities and regulatory Liabilities, and specifically
excluding the Liabilities described on Schedule 1.1(cc);
(dd) "GOVERNMENTAL AUTHORITY" means any governmental authority, including
the governments of Canada and the United States of America and any
political subdivision of any of the foregoing, any multi-national
organization or body comprised of one of the foregoing, any agency,
department, commission, board, bureau, court, tribunal or other
authority thereof, or any quasi-governmental or private body
exercising, or purporting to exercise, any executive, legislative,
judicial, administrative, police, regulatory or taxing authority or
power of any nature;
(ee) "HEDGE BOOK" means all of the outstanding contracts and transactions
of Placer or any of its Affiliates under Placer's precious metals
and copper sales programs
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and all of the outstanding currency, interest rate and other xxxxxx
executed in the financial markets by Placer or any of its
Affiliates;
(ff) "INDEMNIFIED PARTY" has the meaning set out in Section 16.3;
(gg) "INDEMNIFIED TAXES" means one-half of (i) the amount of any taxable
capital gain which is considered by any Governmental Authority to be
realized (1) by Barrick upon the sale of the Transferred Assets to
Goldcorp, if in respect of the CLA Shares, as a result of such
Governmental Authority asserting that the fair market value of the
CLA Shares at the time Barrick acquires control of Placer is less
than the Purchase Price allocated to the CLA Shares, and (2) if in
respect of any other asset (including shares) included in the
Transferred Assets, by the selling entity as a result of such
Governmental Authority asserting that the adjusted cost base of such
asset is less than the Purchase Price allocated to such asset,
multiplied by (ii) the combined corporate federal/Ontario tax rate
at the Closing Date applicable to taxable capital gains in respect
of the CLA Shares (if in respect of CLA Shares), or the applicable
tax rate at the Closing Date applicable to capital gains on any
other asset (including shares) (if in respect of any such other
asset); provided that Barrick will use its commercially reasonable
best efforts to reduce the amount of any such capital gain,
including the making of any available elections in Placer's tax
returns to increase the cost amount of its assets for tax purposes
and the application of any loss carryforwards in the selling entity
(if the selling entity is not Barrick);
(hh) "INDEMNIFYING PARTY" has the meaning set out in Section 16.3;
(ii) "INTENDED TRANSACTIONS" means the Bid, the Second Step Transaction,
the Post-Completion Reorganization and the purchase and sale of the
Transferred Assets on the terms and conditions set forth in this
Agreement;
(jj) "JOINT EXPENSES" has the meaning set out in Schedule 4.1;
(kk) "LEGAL REQUIREMENTS" means any law, statute, ordinance, decree,
requirement, order, treaty, proclamation, convention, rule or
regulation (or interpretation of any of the foregoing) of, and the
terms of any authorization issued by, any Governmental Authority;
(ll) "LIABILITIES" means all debts, liabilities and obligations of any
nature or kind whatsoever, whether due or to become due, accrued or
unaccrued, absolute, contingent, unliquidated or liquidated, or
otherwise;
(mm) "LOSSES", in respect of any matter, means all claims, demands,
proceedings, losses, damages, liabilities, deficiencies, costs and
expenses (including all out-of-pocket legal and other professional
fees and disbursements, interest, penalties and amounts paid in
settlement) arising directly or indirectly as a consequence of such
matter less in all cases any insurance and/or tax benefits received
or receivable in respect thereof;
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(nn) "XXXX-TO-MARKET VALUE" of the Hedge Book, on any date, means the
xxxx-to-market value of the contracts and transactions that comprise
the Hedge Book at the close of business (Toronto time) on that date,
determined in accordance with the methodology employed by Barrick in
order to publicly report the xxxx-to-market value of Xxxxxxx'x hedge
book at the time; for greater certainty, Placer's deferred commodity
provision shall be ignored in calculating the Xxxx-to-Market Value;
(oo) "MATERIAL ADVERSE CHANGE" any change, effect, event, circumstance,
occurrence or state of facts that has had or would reasonably be
expected to have a Material Adverse Effect;
(pp) "MATERIAL ADVERSE EFFECT" means an effect that is material and
adverse to the Goldcorp Assets and Goldcorp Liabilities, taken as a
whole, or the operations or prospects of the Goldcorp Assets and
Goldcorp Liabilities, taken as a whole, other than any change,
effect, event, circumstance, occurrence or state of facts relating
to (i) the gold or silver mining industry in general and which does
not have a materially disproportionate effect on the Goldcorp Assets
and Goldcorp Liabilities, taken as a whole, (ii) changes in the
price of gold or silver, (iii) ordinary course price changes with
respect to raw materials, power, oil, natural gas, propane, diesel
fuel, gasoline, transportation or other products or services or
commodities used or consumed in connection with the Goldcorp Assets
or the operations of the Goldcorp Assets, (iv) any generally
applicable change in Legal Requirements or in Canadian or United
States generally accepted accounting principles which does not have
a materially disproportionate effect on the Goldcorp Assets and
Goldcorp Liabilities, taken as a whole, (v) the economies or
political or civil conditions in Chile or the Dominican Republic,
(vi) securities market conditions in Canada or the United States,
(vii) the relative values of the United States dollar and the
Canadian dollar, and (viii) the announcement of this Agreement and
the Intended Transactions;
(qq) "NET DEBT", on any date, means all Cash of Placer at the close of
business (Toronto time) on such date less the aggregate fair value
of all indebtedness for borrowed money of Placer at the close of
business (Toronto time) on such date, including accrued interest
thereon (excluding, for greater certainty, current liabilities but
including the current portion of long-term debt, and including, for
greater certainty, Placer's series B 8.5% preferred securities,
debentures and convertible debentures);
(rr) "NON-DEFAULTING PARTY" has the meaning set out in Section 15.3;
(ss) "PLACER" means Placer Dome Inc.,
(tt) "PLACER SHARES" means common shares in the capital of Placer;
(uu) "POST-COMPLETION REORGANIZATION" has the meaning set out in Section
2.7;
(vv) "PURCHASE PRICE" has the meaning set out in Section 6.4;
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(ww) "PURCHASE TERMINATION DATE" has the meaning set out in Section 15.2;
(xx) "PUT EXERCISE NOTICE" has the meaning set out in Section 2.5;
(yy) "PUT EXPIRATION DATE" has the meaning set out in Section 2.5;
(zz) "PUT OPTION CONVERSION" has the meaning set out in Section 2.5;
(aaa) "REGULATORY PROCEEDINGS, FILINGS AND COMMUNICATIONS" has the meaning
set out in Section 11.2;
(bbb) "SECOND STEP TRANSACTION" means a transaction, undertaken after
Barrick has acquired Placer Shares under the Bid and after the Bid
Expiration Date, to acquire all of the remaining issued and
outstanding Placer Shares not then owned by Barrick;
(ccc) "SECURITIES ACT" means the SECURITIES ACT (Ontario), R.S.O. 1990, c.
S.5, as amended;
(ddd) "SECURITIES COMMISSIONS" means the securities commission or
equivalent body of each of the provinces and territories of Canada
and the United States Securities and Exchange Commission;
(eee) "TAX ACT" means the INCOME TAX ACT (Canada), R.S.C. 1985, c.1 (5th
Supp.), as amended;
(fff) "TAX CLAIM" has the meaning set out in Section 16.4;
(ggg) "THIRD PARTY" has the meaning set out in Section 16.3;
(hhh) "THIRD PARTY CLAIM" has the meaning set out in Section 16.3;
(iii) "TIME OF CLOSING" means 10:00 a.m. (Toronto time) on the Closing
Date;
(jjj) "TRANSFERRED ASSETS" has the meaning set out in Section 6.1(a);
(kkk) "TRANSFERRED ENTITIES" means the entities included in the
Transferred Assets; and
(lll) "UNCONDITIONAL BID DATE" means the date on which Barrick issues a
press release to the effect that all of the conditions of the Bid
have either been satisfied or waived.
1.2 CURRENCY
Unless otherwise indicated, all dollar amounts referred to in the body of
this Agreement and in the Schedules hereto are expressed in United States
dollars.
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1.3 SECTIONS AND HEADINGS
The division of this Agreement into sections and the insertion of headings
are for convenience of reference only and shall not affect the interpretation of
this Agreement. Unless otherwise indicated, any reference in this Agreement to a
Section or a Schedule refers to the specified section of or schedule to this
Agreement.
1.4 NUMBER, GENDER AND PERSONS
In this Agreement, singular words shall include the plural form and vice
versa, masculine words shall include the feminine form and vice versa and words
referring to persons shall include individuals, corporations, partnerships,
associations, trusts, unincorporated organizations, governmental bodies and
other legal or business entities.
1.5 MEANING OF INCLUDING
Wherever the term "including" is used, it shall be deemed to mean
"including without limitation", and whenever the phrase "include" is used, it
shall mean "include without limitation".
1.6 CONTRA PROFERENTUM
The parties waive the application of any rule of law which otherwise would
be applicable in connection with the construction of this Agreement that
ambiguous or conflicting terms or provisions should be construed against the
party who (or whose counsel) prepared the executed agreement or any earlier
draft of the same.
1.7 GOVERNING LAW
This Agreement shall be construed, interpreted and enforced in accordance
with, and the respective rights and obligations of the parties shall be governed
by, the laws of the Province of Ontario and the federal laws of Canada
applicable in that province, and, subject to Article 18, each party irrevocably
and unconditionally submits to the non-exclusive jurisdiction of the courts of
such province and all courts competent to hear appeals therefrom.
1.8 SCHEDULES
The following Schedules are attached to and form part of this Agreement:
Schedule 1.1(bb) - Goldcorp Assets
Schedule 1.1(cc) - Specifically Excluded Liabilities
Schedule 4.1 - Joint Expenses
1.9 COMMERCIALLY REASONABLE BEST EFFORTS
The parties acknowledge and agree that, for all purposes of this
Agreement, an obligation on the part of either party to use its commercially
reasonable best efforts to act or cause any action to be taken or to make any
application or give any notice or to obtain any
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authorization, consent, relief, order approval or other document (i) shall not
require such party to make any payment to any person for the purpose of taking
or causing to be taken such action or procuring the same, other than payments
for amounts due and payable to such person, payments for incidental expenses
incurred by such person and payments required by any applicable Legal
Requirement, and (ii) shall not require such party to divest any assets or agree
to any material limitation of or restriction on its business activities.
ARTICLE 2
THE BID
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2.1 BID BY BARRICK
(a) Barrick intends to announce the Bid on the Announcement Date. The
consideration to be offered on the Announcement Date for each Placer Share
pursuant to the Bid will be $20.50 in cash or $0.05 in cash plus 0.7518 of a
Barrick Share, subject to proration based on a maximum amount of cash and
Barrick Shares offered.
(b) Barrick shall have exclusive control, in its sole discretion, over all
matters relating to the Bid, the Second Step Transaction and the Post-Completion
Reorganization, including in respect of variations to the Bid, extensions of the
Bid, termination or withdrawal of the Bid, determination of conditions of the
Bid and satisfaction or waiver of such conditions and take-up of Placer Shares
under the Bid.
2.2 REGULATORY APPROVALS
Barrick shall have, in the case of the Bid, the Second Step Transaction
and the Post-Completion Reorganization, exclusive control, in its sole
discretion, over and, in the case of the purchase and sale of the Transferred
Assets, carriage of all applications for regulatory and stock exchange and
Securities Commission approvals, court applications and applications for
regulatory relief (including discretionary orders for relief from securities law
requirements and cease trade proceedings), Xxxx-Xxxxx-Xxxxxx, competition,
foreign investment and other required or desirable notices and applications for
consent, authorization or approval and all other regulatory matters relating to
the Intended Transactions. Barrick shall use its commercially reasonable best
efforts to make such applications and notices and obtain such approvals and
relief in a timely manner. Barrick and Goldcorp will cooperate in connection
with all such matters as described in Section 11.2.
2.3 MARKETING OF BID
Barrick and Goldcorp will cooperate to develop a mutually acceptable
framework for descriptions of the Intended Transactions and the relationship of
the parties. Barrick will organize and coordinate all public relations matters
relating to the Bid and the Second Step Transaction, including press releases,
press conferences, conference calls, meetings with investors and analysts and
any road show. At the request of Barrick, Goldcorp will use its commercially
reasonable best efforts to make its senior executives available to participate
in any or all of such events and express their support for the Intended
Transactions. Goldcorp will organize and coordinate all public relations matters
relating solely to the purchase of the Transferred Assets, including press
releases, press conferences, conference calls, meetings with
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investors and analysts and any road show. Goldcorp and Barrick will cooperate to
coordinate Goldcorp's public relations efforts relating to the purchase of the
Transferred Assets and Xxxxxxx'x public relations efforts relating to the Bid
and the Second Step Transaction.
2.4 INCREASE IN BID CONSIDERATION
(a) If at any time and from time to time Barrick determines that it is
appropriate to increase the Bid Consideration, it shall first notify Goldcorp in
writing of such intention and of the new proposed Bid Consideration. Within 48
hours of receiving such notification, Goldcorp shall notify Barrick in writing
whether it approves or disapproves such increase in the Bid Consideration. If
Goldcorp fails to provide such written notice within the time prescribed
therefor, Goldcorp will be deemed to have irrevocably disapproved the increase
in the Bid Consideration.
(b) If Goldcorp disapproves or is deemed to have disapproved an increase
in the Bid Consideration and Barrick increases the Bid Consideration to the
amount proposed in the aforementioned notice from Barrick, then:
(i) Goldcorp shall lose the right to acquire the Transferred
Assets but Barrick will have the right to put the Transferred
Assets to Goldcorp as more specifically provided in Section
2.5; and
(ii) Barrick shall not be required to seek approval of Goldcorp to
any subsequent increase in the Bid Consideration.
2.5 PUT OPTION CONVERSION
If Goldcorp loses the right to acquire the Transferred Assets and Barrick
obtains the right to put the Transferred Assets to Goldcorp pursuant to Section
2.4(b)(i) (the "PUT OPTION CONVERSION"), the terms and conditions of this
Agreement shall apply, MUTATIS MUTANDIS, to the purchase and sale of the
Transferred Assets pursuant to such put option and the exercise thereof, except
as otherwise specifically provided. In order to exercise such put option,
Barrick must deliver written notice of its exercise of such put option (if any)
(the "PUT EXERCISE NOTICE") on or before the earlier of the Bid Expiration Date
and the Purchase Termination Date (the "PUT EXPIRATION DATE").
2.6 SECOND STEP TRANSACTION
If Barrick acquires 66.67% or more of the issued and outstanding Placer
Shares (on a fully-diluted basis) pursuant to the Bid, following completion of
the Bid, Barrick will use its commercially reasonable best efforts to complete
the Second Step Transaction as expeditiously as possible. The terms and
conditions and the form of such Second Step Transaction will be solely at the
discretion of Barrick.
2.7 POST-COMPLETION REORGANIZATION
If Barrick acquires all of the issued and outstanding Placer Shares
pursuant to the Bid and the Second Step Transaction, following completion of the
Second Step Transaction,
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Barrick will use its commercially reasonable best efforts to undertake as
expeditiously as possible a corporate reorganization (the "POST-COMPLETION
REORGANIZATION") of Placer and its subsidiaries as a part of or as a result of
which the Bump will occur. The terms and conditions and the form of the
Post-Completion Reorganization will be solely at the discretion of Barrick.
ARTICLE 3
COOPERATION AND EXCLUSIVITY
3.1 MUTUAL COOPERATION COVENANTS
The parties covenant to cooperate in all reasonable respects and to use
their commercially reasonable best efforts to ensure the success of the Intended
Transactions. Each of the parties shall use its commercially reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other party in doing, all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the Intended Transactions. Without limiting the
foregoing, neither party will take, or cause to be taken, or do, or cause to be
done, anything which would be reasonably likely to impair the likelihood of
consummation of the Intended Transactions. For greater certainty, such covenants
shall not obligate Barrick to increase the Bid Consideration or extend or vary
the Bid, waive any condition of the Bid, determine that any condition of the Bid
has been satisfied or take any other action with respect to the Bid, nor shall
such covenants obligate Goldcorp to approve any increase in the Bid
Consideration.
3.2 EXCLUSIVITY COVENANT FROM BARRICK
(a) Except with the prior written consent of Goldcorp, from the date
hereof to the earlier of (i) the date that is 12 months after the Bid Expiration
Date and (ii) the Barrick Control Date, Barrick shall not, and it shall cause
its Affiliates not to, directly or indirectly, either alone or with any other
person:
(i) make a take-over bid in respect of any equity securities or
voting securities of Placer, other than the Bid or any Second
Step Transaction; or
(ii) solicit, initiate, discuss, negotiate or participate in, or
make or enter into any agreement, commitment or understanding
to do or make or participate in:
(A) any acquisition or offer to acquire beneficial ownership
of any equity securities or voting securities of Placer
or securities convertible into or exchangeable for
equity securities or voting securities of Placer (or any
Affiliate of Placer), or any transaction involving or
relating to same (excluding in each case the Bid, the
Second Step Transaction, the Post-Closing Reorganization
and any Converted Consensual Transaction);
(B) any acquisition or lease of, or any offer to acquire or
lease, or any joint venture arrangement or similar
transaction in respect of, any of the assets of Placer,
or any transaction involving or relating to
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same (excluding in each case the Bid, the Second Step
Transaction, the Post-Closing Reorganization and any
Converted Consensual Transaction); or
(C) any transaction seeking to control the management, board
of directors or policies of Placer or any of its
Affiliates (excluding in each case the Bid, the Second
Step Transaction, the Post-Closing Reorganization and
any Converted Consensual Transaction).
(b) Except with the prior written consent of Goldcorp, from the date
hereof to the Bid Expiration Date, Barrick shall not, and it shall cause
its Affiliates not to, directly or indirectly, either alone or with any
other person, solicit, initiate, discuss, negotiate or participate in, or
make or enter into any agreement, commitment or understanding to do or
make or participate in, any acquisition or lease of, or any offer to
acquire or lease, or any joint venture arrangement or similar transaction
in respect of the interest of any person other than Placer and its
Affiliates in any asset an interest in which is included in the Goldcorp
Assets.
3.3 EXCLUSIVITY COVENANT FROM GOLDCORP
(a) Except with the prior written consent of Barrick, from the date hereof
to the date that is 12 months after the Bid Expiration Date, Goldcorp shall not,
and it shall cause its Affiliates not to, directly or indirectly, either alone
or with any other person (other than Barrick), solicit, initiate, discuss,
negotiate or participate in, or make or enter into any agreement, commitment or
understanding to do or make or participate in:
(i) any acquisition or offer to acquire beneficial ownership of
any equity securities or voting securities of Placer or
securities convertible into or exchangeable for equity
securities or voting securities of Placer (or any Affiliate of
Placer), or any transaction involving or relating to same;
(ii) any acquisition or lease of, or any offer to acquire or lease,
or any joint venture arrangement or similar transaction in
respect of, any of the Goldcorp Assets, or any transaction
involving or relating to same;
(iii) any merger, amalgamation, arrangement, share exchange,
take-over bid, business combination or similar transaction
with or involving Placer or any of its Affiliates, or any
transaction involving or relating to same; or
(iv) any transaction seeking to control the management, board of
directors or policies of Placer or any of its Affiliates.
(b) Notwithstanding the foregoing, nothing in Section 3.3(a) shall prevent
Goldcorp from soliciting, initiating, discussing or negotiating the acquisition
or lease of or any joint venture arrangement or similar transaction in respect
of the interest of any person other than Placer and its Affiliates in any asset
an interest in which is included in the Goldcorp Assets, provided that Goldcorp
shall not, on or before the Bid Expiration Date, make or enter into any
agreement, commitment or understanding in respect of such an acquisition, lease,
arrangement or transaction which would require, or which Goldcorp has reason to
believe would otherwise result
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in, public disclosure thereof by Goldcorp or by any person or persons with whom
Goldcorp is in such discussions or negotiations.
3.4 ACQUISITION AND OWNERSHIP OF PLACER SHARES
(a) Barrick represents and warrants that, (i) as of the date hereof,
neither Barrick nor any person with whom Barrick does not deal at arm's length
(for purposes of the Tax Act) beneficially owns any Placer Shares (or shares of
any person related to Placer for purposes of the Tax Act), or any securities
convertible into or exchangeable for, Placer Shares (or shares of any person
related to Placer for purposes of the Tax Act), and (ii) neither Barrick nor any
person with whom Barrick does not deal at arm's length (for purposes of the Tax
Act) has acquired beneficial ownership of any Placer Shares (or shares of any
person related to Placer for purposes of the Tax Act) or any securities
convertible into or exchangeable for, Placer Shares (or shares of any person
related to Placer for purposes of the Tax Act) during the 90 days preceding the
date hereof.
(b) Goldcorp represents and warrants that (i) as of the date hereof,
neither Goldcorp nor any person with whom Goldcorp does not deal at arm's length
(for purposes of the Tax Act) beneficially owns any Placer Shares (or shares of
any person related to Placer for purposes of the Tax Act), or any securities
convertible into or exchangeable for, Placer Shares (or shares of any person
related to Placer for purposes of the Tax Act), (ii) neither Goldcorp nor any
person with whom Goldcorp does not deal at arm's length (for purposes of the Tax
Act) has acquired beneficial ownership of any Placer Shares (or shares of any
person related to Placer for purposes of the Tax Act) or any securities
convertible into or exchangeable for, Placer Shares (or shares of any person
related to Placer for purposes of the Tax Act) during the 90 days preceding the
date hereof, and (iii) Goldcorp is not a "specified shareholder" of Placer for
purposes of subsection 88(1) of the Tax Act.
(c) Without limiting the generality of Section 3.3(a)(i), from the date
hereof to the later of the Closing Date and the Purchase Termination Date,
Goldcorp shall cause all persons with whom it does not deal at arm's length (for
purposes of the Tax Act) not to acquire beneficial ownership of any Placer
Shares (or shares of any person related to Placer for purposes of the Tax Act)
or any securities convertible into or exchangeable for, Placer Shares (or shares
of any person related to Placer for purposes of the Tax Act).
3.5 SPECIAL DEFINITIONS FOR THIS ARTICLE 3
In this Article 3, the terms "beneficial ownership", "business day",
"equity security", "offer to acquire" and "take-over bid", shall have the
meanings given to them in Part XX of the Securities Act and the term "voting
security" shall have the meaning given to it in Section 1(1) of the Securities
Act, and grammatical variations of such terms shall have corresponding meanings.
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ARTICLE 4
JOINT EXPENSES
4.1 JOINT EXPENSES
Schedule 4.1 describes those expenses which are Joint Expenses and those
which are not Joint Expenses. Each party will act reasonably in incurring any
Joint Expenses.
4.2 SHARING OF JOINT EXPENSES
Except as provided in Section 4.3, the Joint Expenses will be shared as to
87% by Barrick and as to 13% by Goldcorp.
(a) If (i) Barrick does not acquire any Placer Shares pursuant to the
Bid (regardless of whether the Put Option Conversion has occurred)
and (ii) either no break fee has been paid or is payable pursuant to
Section 5.2 or any such break fee paid or payable has been or is to
be shared between Barrick and Goldcorp pursuant to Section 5.2, then
within 30 days after the Bid Expiration Date the parties will
reconcile the Joint Expenses incurred or paid by each of them to
such date, and if one party has paid more than its share of Joint
Expenses, at or before the expiry of such 30-day period, the other
party will pay such excess to it in cash as a reimbursement of such
expenses.
(b) If Barrick acquires any Placer Shares pursuant to the Bid and either
no Put Option Conversion has occurred or, if a Put Option Conversion
has occurred, Barrick has delivered a Put Exercise Notice on or
before the Put Expiration Date, then at or before the Closing Date
the parties will reconcile the Joint Expenses incurred or paid by
each of them to such date, and if one party has paid more than its
share of Joint Expenses, at or before the Time of Closing the other
party will pay such excess to it in cash as a reimbursement of such
expenses.
(c) If (i) Barrick acquires any Placer Shares pursuant to the Bid, and
(ii) either no Put Option Conversion has occurred or, if a Put
Option Conversion has occurred, Barrick has delivered a Put Exercise
Notice on or before the Put Expiration Date, and (iii) Closing does
not occur before the Purchase Termination Date as a result of a
breach of this Agreement by Goldcorp, then within 30 days after the
Purchase Termination Date the parties will reconcile the Joint
Expenses incurred or paid by each of them to such date, and if one
party has paid more than its share of Joint Expenses, at or before
the expiry of such 30-day period the other party will pay such
excess to it in cash as a reimbursement of such expenses.
4.3 EXCEPTIONS TO SHARING OF JOINT EXPENSES
(a) If (i) Barrick acquires any Placer Shares pursuant to the Bid, and
(ii) either no Put Option Conversion has occurred or, if a Put Option Conversion
has occurred, Barrick has delivered a Put Exercise Notice on or before the Put
Expiration Date, and (iii) Closing does not occur before the Purchase
Termination Date as a result of a breach of this Agreement by Barrick, then
Barrick shall be responsible for all of the Joint Expenses. Within 30 days after
the Purchase
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Termination Date the parties will reconcile the Joint Expenses incurred or paid
by each of them to such date, and if Goldcorp has paid any Joint Expenses, at or
before the expiry of such 30-day period Barrick will pay the amount of such
expenses paid by Goldcorp to Goldcorp in cash as a reimbursement of such
expenses.
(b) If (i) Barrick acquires any Placer Shares pursuant to the Bid, and
(ii) either no Put Option Conversion has occurred or, if a Put Option Conversion
has occurred, Barrick has delivered a Put Exercise Notice on or before the Put
Expiration Date, and (iii) Closing does not occur before the Purchase
Termination Date for any reason other than a breach of this Agreement by
Goldcorp or Barrick, then Barrick shall be responsible for all of the Joint
Expenses, other than the fees and disbursements of Goldcorp's legal and
accounting advisors. Within 30 days after the Purchase Termination Date the
parties will reconcile the Joint Expenses incurred or paid by each of them to
such date, and if Goldcorp has paid any Joint Expenses (other than the fees and
disbursements of Goldcorp's legal and accounting advisors), at or before the
expiry of such 30-day period Barrick will pay the amount of such expenses paid
by Goldcorp to Goldcorp in cash as a reimbursement of such expenses.
(c) If (i) Barrick acquires any Placer Shares pursuant to the Bid, (ii) a
Put Option Conversion has occurred, and (iii) Barrick has not delivered a Put
Exercise Notice on or before the Put Expiration Date, then Barrick shall be
responsible for all of the Joint Expenses, other than the fees and disbursements
of Goldcorp's legal and accounting advisors. Within 30 days after the Put
Expiration Date the parties will reconcile the Joint Expenses incurred or paid
by each of them to such date, and if Goldcorp has paid any Joint Expenses (other
than the fees and disbursements of Goldcorp's legal and accounting advisors), at
or before the expiry of such 30-day period, Barrick will pay the amount of such
expenses paid by Goldcorp to Goldcorp in cash as a reimbursement of such
expenses.
(d) If (i) Barrick does not acquire any Placer Shares pursuant to the Bid,
and (ii) a break fee has been paid or is payable pursuant to Section 5.2, and
(iii) such break fee was not or is not required to be shared pursuant to Section
5.2, then Barrick shall be responsible for all of the Joint Expenses, other than
the fees and disbursements of Goldcorp's legal and accounting advisors. Within
30 days after the Purchase Termination Date the parties will reconcile the Joint
Expenses incurred or paid by each of them to such date, and if Goldcorp has paid
any Joint Expenses (other than the fees and disbursements of Goldcorp's legal
and accounting advisors), at or before the expiry of such 30-day period Barrick
will pay the amount of such expenses paid by Goldcorp to Goldcorp in cash as a
reimbursement of such expenses.
4.4 EXPENSES THAT ARE NOT JOINT EXPENSES
Each party will be responsible for any fees and expenses incurred by it
which are not Joint Expenses, including those expenses described in Schedule 4.1
as not being Joint Expenses.
4.5 INTEREST
If a party fails to make a payment required by this Article 4 within the
time prescribed therefor, the amount of such payment will bear interest at the
prime lending rate of the
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Royal Bank of Canada from time to time plus 5% (500 basis points), compounded
monthly in arrears, from the date that each of the relevant expenses was
incurred to the date that payment in full (including payment of compound
interest) is made by the delinquent party to the other party in reimbursement of
expenses.
ARTICLE 5
CONVERSION INTO NEGOTIATED TRANSACTION
5.1 DUE DILIGENCE ACCESS TO PLACER
If Barrick obtains access to a Placer data room or otherwise obtains due
diligence materials from Placer, Barrick will use its commercially reasonable
best efforts to secure equivalent access for Goldcorp in respect of the Goldcorp
Assets and the Goldcorp Liabilities.
5.2 NEGOTIATIONS WITH PLACER
Without limiting the generality of Section 3.2, from the date hereof to
the Bid Expiration Date, Barrick shall have carriage of any and all discussions
or negotiations with Placer relating to any or all of the Intended Transactions,
as well as any other merger, amalgamation, arrangement, business combination or
similar transaction between Barrick and Placer.
In the event that during the period from the date hereof to the Bid
Expiration Date Barrick enters into an agreement with Placer providing for the
acquisition of Placer by Barrick in which Placer provides any representations or
warranties with respect to any of its assets or liabilities, Barrick will use
its commercially reasonable best efforts to obtain substantially similar
representations and warranties from Placer in favour of Goldcorp with respect to
the Goldcorp Assets and the Goldcorp Liabilities.
In the event that during the period from the date hereof to the Bid
Expiration Date Barrick enters into any agreement with Placer pursuant to which
Barrick becomes entitled to receive a fee payable if the transaction negotiated
with Placer is not successfully completed, any such break fee received by
Barrick will be shared by the parties as to 87% by Barrick and as to 13% by
Goldcorp provided that no Put Option Conversion shall have occurred before the
date on which such fee becomes payable by Placer.
In the event that during the period from the date hereof to the date that
is 12 months after the Bid Expiration Date Barrick enters into any agreement
with Placer providing for an alternative form of transaction to the Bid that
involves a change in control of, or acquisition of, or merger, amalgamation,
arrangement, or business combination with Placer (a "CONVERTED CONSENSUAL
TRANSACTION"), the provisions of this Agreement shall apply MUTATIS MUTANDIS to
such Converted Consensual Transaction.
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ARTICLE 6
PURCHASE AND SALE OF TRANSFERRED ASSETS
6.1 TRANSFERRED ASSETS AND ASSUMED LIABILITIES
It is intended by the parties that on the Closing Date, Goldcorp will
acquire from Barrick all of the Goldcorp Assets and that from and after the
Closing Date, Goldcorp will be responsible for all of the Goldcorp Liabilities.
It is the further intention of the parties that in connection with the transfer
contemplated in this Agreement, Goldcorp will not acquire any interest in any
other assets (except for interests in persons with a direct or indirect interest
in the Goldcorp Assets or Goldcorp Liabilities (and not in other assets or
Liabilities)) or become responsible for any other Liabilities of Placer or its
Affiliates. In order to give effect to such intentions:
(a) Barrick will sell or cause to be sold, and Goldcorp will purchase,
such assets (the "TRANSFERRED ASSETS") as may be required to
transfer the Goldcorp Assets and Goldcorp Liabilities to Goldcorp to
the greatest extent possible; and
(b) Goldcorp will assume the Goldcorp Liabilities (the "ASSUMED
LIABILITIES") which are not indirectly acquired through the
acquisition of the Transferred Assets.
It is the understanding of the parties that CLA is the direct or indirect
owner of Placer's interest in the Xxxxxxxx mine, the Porcupine joint venture,
the Xxxxxxxxxxx joint venture and the La Coipa mine, and therefore that the CLA
Shares and any other outstanding securities of CLA will form part of the
Transferred Assets.
Prior to the Closing Date, the parties will work together to (i) identify
assets and Liabilities of CLA and its Subsidiaries that are not Goldcorp Assets
or Goldcorp Liabilities and determine a mutually acceptable tax-efficient manner
to transfer such assets and Liabilities from CLA and its Subsidiaries to Barrick
or another Affiliate of Barrick, (ii) identify assets (other than the CLA
Shares) to be included in the Transferred Assets and determine a mutually
acceptable tax-efficient manner to transfer such assets to Goldcorp (including,
if applicable, transferring such assets to CLA or its Subsidiaries), and (iii)
identify any Assumed Liabilities. In addition, prior to the Closing Date, the
parties will work together to determine a mutually acceptable tax-efficient
manner to eliminate, prior to the Closing Date, all payables and receivables
between Transferred Entities, on the one hand, and Placer and its Affiliates
that are not included in the Transferred Entities, on the other hand. To the
extent that there are shared assets or Liabilities that relate both to the
assets and Liabilities transferred or assumed by Goldcorp and to the other
assets and Liabilities of Placer, such as pension plan assets or deficiencies,
prior to the Closing Date the parties will work together to determine a mutually
acceptable equitable manner in which to allocate such shared assets and
Liabilities. To the extent that the parties cannot effect any of the foregoing
transfers or eliminations in a mutually acceptable tax-efficient manner or agree
on the allocation of shared assets and Liabilities, the parties agree to
cooperate in good faith to negotiate an appropriate adjustment to the Purchase
Price. The parties also agree to cooperate in good faith to agree to an
appropriate allocation of the Purchase Price among the Transferred Assets.
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6.2 TREATMENT OF CASH
(a) It is the intention of the parties that the Transferred Assets will
not include any Cash held by any Transferred Entity (or Placer or any other
Affiliate of Placer) on October 31, 2005. Barrick shall be entitled to transfer
the amount of Cash held by the Transferred Entities on October 31, 2005 to
entities that are not Transferred Entities before the Closing Date.
(b) It is the further intention of the parties that after October 31, 2005
any cash generated by the Goldcorp Assets and any cash required in connection
with the operations of the Goldcorp Assets and the discharge of Goldcorp
Liabilities will be for the account of Goldcorp. Similarly, it is the intention
of the parties that after October 31, 2005 any cash generated by Placer's assets
other than the Goldcorp Assets and any cash required in connection with the
operations of Placer's assets other than the Goldcorp Assets and discharge of
Placer's liabilities other than the Goldcorp Liabilities will be for the account
of Barrick. Prior to the Closing Date, the parties will cooperate to identify
and agree to the cash generated by and used by the Goldcorp Assets and the
Goldcorp Liabilities, on the one hand, and the other assets and liabilities of
Placer, on the other hand, from November 1, 2005 to the Closing Date. If the
cash generated by the Goldcorp Assets less the cash used in connection with the
operations of the Goldcorp Assets and the discharge of Goldcorp Liabilities,
from November 1, 2005 to the Closing Date, is positive, then the Transferred
Assets will include cash in the amount of such excess. If the cash generated by
the Goldcorp Assets less the cash used in connection with the operations of the
Goldcorp Assets and the discharge of Goldcorp Liabilities, from November 1, 2005
to the Closing Date, is negative, then the Purchase Price will be increased by
the amount of such deficiency and no cash will be included in the Transferred
Assets.
6.3 PURCHASE AND SALE OF TRANSFERRED ASSETS
Subject to the provisions of this Agreement, Barrick covenants and agrees
to sell or cause to be sold, and Goldcorp covenants and agrees to purchase, all
of the Transferred Assets.
6.4 PURCHASE PRICE
(a) The purchase price (the "PURCHASE PRICE") for the Transferred Assets
will be:
(i) either:
(A) if the Put Option Conversion has not occurred:
(I) 13% of the product of a) the Bid Consideration
immediately prior to the Bid Expiration Date and
b) the aggregate number of Placer Shares acquired
by Barrick pursuant to the Bid and the Second Step
Transaction, plus
(II) 13% of the product of a) the Bid Consideration
immediately prior to the Bid Expiration Date and
b) the aggregate number of Placer Shares in
respect of which rights of dissent, if any, are
exercised in connection with
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the Second Step Transaction (which Placer Shares
are not otherwise acquired pursuant to the Second
Step Transaction); less
(III) 13% of the aggregate exercise price paid on all
stock options to acquire Placer Shares exercised
between the Announcement Date and the date upon
which Barrick acquires 100% of the issued and
outstanding Placer Shares, less
(IV) 13% of the aggregate principal amount of all
convertible debentures converted into Placer
Shares between the Announcement Date and the date
upon which Barrick acquires 100% of the issued and
outstanding Placer Shares (plus any accrued
interest thereon outstanding at the time of
conversion which is not subsequently paid in cash
to the holder of the convertible debenture), or
(B) if the Put Option Conversion has occurred (and, for
greater certainty, Barrick delivered a Put Exercise
Notice on or before the Put Expiration Date):
(I) 13% of the product of a) the Bid Consideration
immediately prior to the increase in the Bid
Consideration disapproved by Goldcorp and b) the
aggregate number of Placer Shares acquired by
Barrick pursuant to the Bid and the Second Step
Transaction, plus
(II) 13% of the product of a) the Bid Consideration
immediately prior to the increase in the Bid
Consideration disapproved by Goldcorp and b) the
aggregate number of Placer Shares in respect of
which rights of dissent, if any, are exercised in
connection with the Second Step Transaction (which
Placer Shares are not otherwise acquired pursuant
to the Second Step Transaction); less
(III) 13% of the aggregate exercise price paid on all
stock options to acquire Placer Shares exercised
between the Announcement Date and the date upon
which Barrick acquires 100% of the issued and
outstanding Placer Shares, less
(IV) 13% of the aggregate principal amount of all
convertible debentures converted into Placer
Shares between the Announcement Date and the date
upon which Barrick acquires 100% of the issued and
outstanding Placer Shares (plus any accrued
interest thereon outstanding at the time of
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conversion which is not subsequently paid in cash
to the holder of the convertible debenture), and
in each case subject to adjustment in accordance with
Sections 6.1, 6.2(b), 6.6 and 6.8; plus
(ii) an additional amount computed as the equivalent of
interest calculated on the cash paid to, or to the order
of, holders of Placer Shares (from time to time), from
the applicable date(s) on which Barrick made such
payments to the Closing Date at Xxxxxxx'x cost of
borrowing (including directly related fees and costs),
compounded monthly, plus
(iii) $189 million; plus
(iv) the assumption by Goldcorp of the Assumed Liabilities
pursuant to Section 6.5.
(b) For the purposes of Section 6.4(a), the amounts referred to in
Sections 6.4(a)(i) and 6.4(a)(ii) shall be paid in cash or by wire transfer to,
or to the order of, Barrick.
6.5 ASSUMPTION OF ASSUMED LIABILITIES
Subject to the provisions of this Agreement, Goldcorp agrees to assume,
pay, satisfy, discharge, perform and fulfil, from and after the Closing Date,
all of the Assumed Liabilities.
6.6 PURCHASE PRICE ADJUSTMENTS
(a) If the Xxxx-to-Market Value of the Hedge Book on the Barrick Control
Date is more negative than -$971 million, then the Purchase Price will be
increased by 13% of the amount of such difference. If the Xxxx-to-Market Value
of the Hedge Book on the Barrick Control Date is less negative than -$971
million, then the Purchase Price will be decreased by 13% of the amount of such
difference.
(b) If the Net Debt on October 31, 2005 is greater than $297 million, then
the Purchase Price will be increased by 13% of the amount of such difference. If
the Net Debt on October 31, 2005 is less than $297 million, then the Purchase
Price will be decreased by 13% of the amount of such difference.
6.7 PURCHASE PRICE DEPOSIT
(a) On the later of (i) the Barrick Control Date, and (ii) if a Put Option
Conversion has occurred and Barrick has delivered a Put Exercise Notice on or
before the Put Expiration Date, three Business Days after the date of delivery
of such Put Exercise Notice, Goldcorp will pay the amount of $250 million as a
deposit (the "DEPOSIT") in respect of the Purchase Price. The parties agree to
cooperate in good faith as expeditiously as possible following the date hereof
to select an escrow agent and settle, execute and deliver an escrow agreement in
respect
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of the Deposit. The Deposit will be held in an interest-bearing account (all
interest earned on the Deposit in such account is referred to as "DEPOSIT
INTEREST").
(b) The amount to be paid by Goldcorp on the Closing Date will be reduced
by the amount of the Deposit paid by Goldcorp and the amount of the Deposit
Interest. On the Closing Date, the Deposit and Deposit Interest will be paid to
Barrick, and the Deposit and Deposit Interest shall be applied by Barrick in
satisfaction of such portion of the Purchase Price.
(c) If Closing does not occur on or before the Purchase Termination Date
as a result of a breach of this Agreement by Goldcorp, then the Deposit and
Deposit Interest will be forfeited by Goldcorp and paid to Barrick (provided
that upon payment of such amount to Barrick, Goldcorp will be relieved of its
obligation to pay Barrick in respect of Joint Expenses pursuant to Section
4.2(c)). Upon unconditional receipt by Barrick of the Deposit and Deposit
Interest forfeited by Goldcorp, Barrick shall terminate and not pursue any claim
against Goldcorp for breach of this Agreement, all liability of Goldcorp in
connection with such breach having been fully and finally satisfied by the
irrevocable payment of the Deposit and Deposit Interest to Barrick. If Closing
does not occur on or before the Purchase Termination Date for any other reason,
then, subject to Sections 15.3 and 15.4, the Deposit and Deposit Interest will
be paid to Goldcorp, net of the portion of Joint Expenses for which Goldcorp is
responsible as contemplated in Article 4.
6.8 IMPACT OF CLA TAX DISPUTE
If (a) the Supreme Court of Canada renders its decision in respect of the
CLA Tax Dispute and in such decision the Court makes an award in favour of CLA,
and (b) CLA receives any portion of such award on or before the Closing Date,
then the Purchase Price will be increased by 87% of the amount of such award (or
portion thereof, if applicable) received. If (a) the Supreme Court of Canada
renders its decision in respect of the CLA Tax Dispute and in such decision the
Court makes an award in favour of CLA, and (b) CLA receives any portion of such
award after the Closing Date, then Goldcorp will pay 87% of the amount of such
award (or portion thereof, if applicable) to Barrick in cash within five days of
receipt of all or substantially all of such award (or portion thereof, if
applicable) as an adjustment of the Purchase Price.
6.9 POST-CLOSING ADJUSTMENTS
To the extent that Barrick and Goldcorp determine, after the Closing Date,
that (i) Goldcorp Assets were not transferred to Goldcorp, (ii) Goldcorp
acquired assets that were not Goldcorp Assets (except for interests in persons
with a direct or indirect interest in Goldcorp Assets or Goldcorp Liabilities
(and no other assets or Liabilities)), (iii) Goldcorp Liabilities were not
assumed by Goldcorp or acquired indirectly through the acquisition of the
Transferred Assets, or (iv) Goldcorp assumed or acquired indirectly through the
acquisition of the Transferred Assets Liabilities that were not Goldcorp
Liabilities, the parties will work together to determine a mutually acceptable
tax-efficient manner to effect, to the greatest extent possible, the necessary
transfers and will, in any event, effect the necessary transfers.
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6.10 PUEBLO VIEJO INTEREST
The parties have agreed that Barrick will transfer a 40% interest in
Pueblo Viejo to Goldcorp, provided that the parties will not be required to
effect any such transfer if it is in violation of Legal Requirements or if it
would trigger contractual, permitting, license or other provisions (including
rights of first refusal and pre-emptive rights or loss of control) that would
impair the value of the Pueblo Viejo project to Placer or the parties. The
parties agree to negotiate in good faith a joint venture agreement to govern the
Pueblo Viejo joint venture, which agreement will, among other things, give
Barrick control over operational, environmental and development decisions in
respect of the Pueblo Viejo project and the Pueblo Viejo joint venture, subject
to customary super-majority voting protections in favour of Goldcorp.
Contemporaneous with such transfer, the parties will enter into such joint
venture agreement. If a 40% interest in Pueblo Viejo cannot be transferred to
Goldcorp on the Closing Date as provided above (including in the event the
parties fail to settle the terms of a joint venture agreement), the parties
agree to negotiate in good faith an appropriate mechanism or arrangement for
Goldcorp to acquire and be responsible for 40% of the costs and liabilities and
to acquire and benefit from 40% of the rewards and economic benefits relating to
the Pueblo Viejo project from and after the Closing Date (including a synthetic
arrangement to achieve the same economic outcome).
6.11 XXXXXXXX INTEREST
The parties have agreed that Barrick will transfer its interest in Agua de
la Falda S.A., which holds Xxxxxxx'x interest in the Xxxxxxxx project, to
Goldcorp, provided that the parties will not be required to effect any such
transfer if it is in violation of Legal Requirements or if it would trigger
contractual, permitting, license or other provisions (including rights of first
refusal and pre-emptive rights or loss of control) that would impair the value
of the Xxxxxxxx project or other assets of Agua de la Falda S.A. to the parties.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES REGARDING
TRANSFERRED ASSETS AND ASSUMED LIABILITIES
Barrick makes no representation or warranty of any type whatsoever,
whether express or implied or otherwise, regarding the Transferred Assets or the
Assumed Liabilities or any matter or thing relating thereto, and Goldcorp
acknowledges that it is not receiving, nor has it relied upon, any such
representation or warranty. The Transferred Assets and the Assumed Liabilities
shall be transferred or assumed, as the case may be, on an "as is where is"
basis without the benefit of any representation or warranty from Barrick or any
other person.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES OF BARRICK
Barrick represents and warrants to Goldcorp as follows and acknowledges
and confirms that Goldcorp is relying on such representations and warranties in
connection with the purchase by Goldcorp of the Transferred Assets:
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8.1 ORGANIZATION
Barrick is validly existing under the laws of the Province of Ontario and
has the corporate power to enter into this Agreement and to perform its
obligations hereunder.
8.2 NO VIOLATION
The entering into of this Agreement and the completion of the Intended
Transactions will not result in the breach or violation of any of the provisions
of, or constitute a default under, or conflict with or cause the acceleration of
any obligation of Barrick under: (i) any provision of the constating documents,
by-laws or resolutions of the board of directors (or any committee thereof) or
shareholders of Barrick; (ii) any judgment, decree, order or award of any court,
governmental body or arbitrator having jurisdiction over Barrick; or (iii) any
licence, permit, approval, consent or authorization held by Barrick.
8.3 ENFORCEABILITY
This Agreement has been duly authorized, executed and delivered by Barrick
and is a legal, valid and binding obligation of Barrick, enforceable against it
by Goldcorp in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency and other laws affecting the enforcement of
rights of creditors generally and except that equitable remedies may only be
granted in the discretion of a court of competent jurisdiction.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF GOLDCORP
Goldcorp represents and warrants to Barrick as follows and acknowledges
and confirms that Barrick is relying on such representations and warranties in
connection with making the Bid and the sale by Barrick of the Transferred
Assets:
9.1 ORGANIZATION
Goldcorp is validly existing under the laws of the Province of Ontario and
has the corporate power to enter into this Agreement and to perform its
obligations hereunder.
9.2 NO VIOLATION
The entering into of this Agreement and the completion of the Intended
Transactions will not result in the breach or violation of any of the provisions
of, or constitute a default under, or conflict with or cause the acceleration of
any obligation of Goldcorp under: (i) any provision of the constating documents,
by-laws or resolutions of the board of directors (or any committee thereof) or
shareholders of Goldcorp; (ii) any judgment, decree, order or award of any
court, governmental body or arbitrator having jurisdiction over Goldcorp; or
(iii) any licence, permit, approval, consent or authorization held by Goldcorp.
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9.3 ENFORCEABILITY
This Agreement has been duly authorized, executed and delivered by
Goldcorp and is a legal, valid and binding obligation of Goldcorp, enforceable
against it by Barrick in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency and other laws affecting the
enforcement of rights of creditors generally and except that equitable remedies
may only be granted in the discretion of a court of competent jurisdiction.
9.4 AVAILABILITY OF FINANCING
Goldcorp has provided to Barrick a true and complete copy of a commitment
letter (the "COMMITMENT LETTER") between Goldcorp and Bank of Montreal and The
Bank of Nova Scotia, which Commitment Letter is in full force and effect on the
date hereof. Goldcorp's cash balances together with its available debt
facilities and the amounts committed under the Commitment Letter are adequate to
pay the Purchase Price plus Goldcorp's share of Joint Expenses to Barrick.
ARTICLE 10
COVENANTS OF BARRICK
10.1 MANAGEMENT OF GOLDCORP ASSETS AND GOLDCORP LIABILITIES
From and after the Barrick Control Date to the earliest to occur of (i)
the Put Expiration Date if a Put Option Conversion has occurred and a Put
Exercise Notice has not been delivered to Goldcorp on or before such date, (ii)
the Closing Date, and (iii) the Purchase Termination Date:
(a) except as contemplated in this Agreement, Barrick will cause Placer
to operate the Goldcorp Assets and discharge the Goldcorp
Liabilities in the ordinary course of business; and
(b) to the extent permitted by applicable Legal Requirements and subject
to any applicable fiduciary duties and contractual provisions,
Barrick will provide Goldcorp with access to and information
regarding the Goldcorp Assets, will consult with Goldcorp regarding
the operation of the Goldcorp Assets, and, except as contemplated in
this Agreement, will not make any material operating decisions
relating to the Goldcorp Assets and Goldcorp Liabilities without the
prior consent of Goldcorp.
10.2 POST-CLOSING REORGANIZATION RECORDS
To the Time of Closing, Barrick will give Goldcorp and its advisors
reasonable access to the records of the Post-Completion Reorganization.
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ARTICLE 11
COVENANTS OF GOLDCORP
11.1 BID DOCUMENTS
Goldcorp shall use its commercially reasonable best efforts to promptly
provide to Barrick such information, documents and other assistance as may be
requested by Barrick for inclusion or incorporation by reference in any circular
or notice of change or other filing (or amendment or supplement thereto)
relating to the Bid or the Second Step Transaction to be filed with the
Securities Commissions (each a "BID DOCUMENT") and shall cooperate in the
preparation and filing of the Bid Documents if requested by Barrick. Subject to
applicable Legal Requirements, Barrick will not make any disclosure concerning
Goldcorp or of information supplied by Goldcorp for inclusion or incorporation
by reference in any Bid Document except with the prior written consent of
Goldcorp, which consent shall not be unreasonably withheld or delayed. Goldcorp
represents and warrants that none of the information supplied by Goldcorp for
inclusion or incorporation by reference in any Bid Document will, at the time
such Bid Document is filed with the Securities Commissions or otherwise
disseminated, and at the time of any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material fact that is
required to be stated or that is necessary to make a statement in such Bid
Document not misleading in light of the circumstances in which it was made.
Barrick will provide Goldcorp with a reasonable opportunity to review and
comment on any circular or notice of change (or amendment or supplement thereto)
relating to the Bid or the Second Step Transaction before it is filed with a
Securities Commission. Goldcorp will promptly notify Barrick if at any time
before the Purchase Termination Date it becomes aware that any Bid Document
contains an untrue statement of a material fact or omits to state a material
fact that is required to be stated or that is necessary to make a statement in
such Bid Document not misleading in light of the circumstances in which it was
made or that an amendment or supplement to any Bid Document may be required.
11.2 REGULATORY FILINGS
Goldcorp shall use its commercially reasonable best efforts to promptly
provide to Barrick such information, documents and other assistance as may be
requested by Barrick in connection with any application, notice or other matter
referred to in Section 2.2 ("REGULATORY PROCEEDINGS, FILINGS AND
COMMUNICATIONS"). Goldcorp shall cooperate in the preparation and submission of
all Regulatory Proceedings, Filings and Communications relating to the Bid, the
Second Step Transaction and the Post-Completion Reorganization if requested by
Barrick, including making such filings and participating in such meetings and
conference calls, as may be requested by Barrick. The parties shall cooperate in
the preparation and submission of all Regulatory Proceedings, Filings and
Communications relating to the purchase and sale of the Transferred Assets,
including making such filings and participating in such meetings and conference
calls, as may be requested by the other party.
Goldcorp represents and warrants that none of the information supplied by
Goldcorp for inclusion or incorporation by reference in any Regulatory
Proceeding, Filing or Communication will, at the time such Regulatory
Proceeding, Filing or Communication is submitted, and at the time of any
amendment or supplement thereto, contain an untrue statement
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of a material fact or omit to state a material fact that is required to be
stated or that is necessary to make a statement in such Regulatory Proceeding,
Filing or Communication not misleading in light of the circumstances in which it
was made. Barrick will provide Goldcorp with a reasonable opportunity to review
and comment on written Regulatory Proceedings, Filings and Communications or, if
applicable, portions thereof, relating to or describing the purchase and sale of
the Transferred Assets before submission thereof to any Governmental Authority.
Each party will promptly notify the other if at any time before the Purchase
Termination Date it becomes aware that any Regulatory Proceeding, Filing or
Communication contains an untrue statement of a material fact or omits to state
a material fact that is required to be stated or that is necessary to make a
statement in such Regulatory Proceeding, Filing or Communication not misleading
in light of the circumstances in which it was made or that an amendment or
supplement to any Regulatory Proceeding, Filing or Communication may be
required.
In the event that Goldcorp receives any correspondence or communications
from any Governmental Authority relating to a Regulatory Proceeding, Filing or
Communication relating to the Bid, the Second Step Transaction and the
Post-Completion Reorganization, Goldcorp will promptly provide a copy of such
correspondence or a detailed summary of such communications, as applicable, to
Barrick. In the event that either party receives any correspondence or
communications from any Governmental Authority relating to the purchase and sale
of the Transferred Assets, such party will promptly provide a copy of such
correspondence or a detailed summary of such communications, as applicable, to
the other party. Notwithstanding any other provision of this Section 11.2,
information of a competitively-sensitive nature required for or contained in any
Regulatory Proceeding, Filing or Communication may be exchanged on a
counsel-only basis.
11.3 MAINTAIN CASH RESOURCES
Goldcorp will maintain at all times prior to the Closing or the Purchase
Termination Date, as applicable, adequate cash and short term investments and/or
financing commitments to pay the Purchase Price plus Goldcorp's share of Joint
Expenses to Barrick. Without limiting the generality of the foregoing, as
expeditiously as possible following the Announcement Date, Goldcorp will
negotiate in good faith with Bank of Montreal and The Bank of Nova Scotia to
settle, execute and deliver definitive documentation providing for the credit
facilities set out in the Commitment Letter. At the request of Barrick from time
to time, Goldcorp will provide to Barrick an update on the status of such
negotiations with Bank of Montreal and The Bank of Nova Scotia and up-to-date
information regarding Goldcorp's cash balances.
11.4 PROVIDE CONFIRMATION OF NO MATERIAL ADVERSE CHANGE
(a) At any time and from time to time, Barrick may request in writing that
Goldcorp deliver to it a written irrevocable confirmation that there has been no
Material Adverse Change from the date of this Agreement to and including the
date specified in the request (which specified date shall be no sooner than one
Business Day after Goldcorp receives such request).
(b) If Goldcorp has determined that there has been no Material Adverse
Change from the date of this Agreement to and including the specified date
referred to in Section 11.4(a),
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Goldcorp will deliver such written irrevocable confirmation to Barrick by noon
(Vancouver time) on the specified date and such confirmation shall be sufficient
to conclusively evidence full satisfaction of the condition contained in Section
13.1(d).
(c) If Goldcorp, acting reasonably, has determined that there has been a
Material Adverse Change from the date of this Agreement to and including the
specified date referred to in Section 11.4(a), Goldcorp will deliver written
notice of such determination to Barrick by noon (Vancouver time) on the
specified date.
(d) If Goldcorp fails to deliver either the written irrevocable
confirmation referred to in Section 11.4(b) or the written notice described in
Section 11.4(c) to Barrick within the time prescribed therefor, Goldcorp will be
deemed to have irrevocably confirmed that it has determined that there has been
a Material Adverse Change from the date of this Agreement to and including the
specified date referred to in Section 11.4(a).
(e) If Goldcorp either delivers the written notice described in Section
11.4(c) or is deemed to have confirmed that it has determined that there has
been a Material Adverse Change in accordance with Section 11.4(d), then this
Agreement shall automatically terminate, other than the obligations of the
parties pursuant to Article 3, Article 4, Article 16 and Article 18. Such
termination will not affect any of the other rights or remedies of the parties
under this Agreement, including Xxxxxxx'x right to contest whether there has
been a Material Adverse Change.
ARTICLE 12
MUTUAL COVENANTS
12.1 PRESERVATION OF BOOKS AND RECORDS
Each party agrees that it will preserve any books and records of Placer
and its Affiliates which are in its possession on the Closing Date relating to
the Goldcorp Assets or the Goldcorp Liabilities for a period of seven years from
the Closing Date, or for such longer period as is required by any applicable
Legal Requirements, and will permit the other party or its authorized
representatives reasonable access thereto in connection with its affairs.
12.2 TAX MATTERS
No party will knowingly take any action or knowingly fail to take any
action, which action or failure would or would be likely to impair the
availability of the Bump.
12.3 SATISFACTION OF CONDITIONS OF CLOSING
Each of the parties will use its commercially reasonable best efforts to
satisfy the conditions of Closing, to the extent within its control.
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ARTICLE 13
CONDITIONS OF CLOSING IN FAVOUR OF GOLDCORP
13.1 CONDITIONS OF CLOSING IN FAVOUR OF GOLDCORP
The purchase of the Transferred Assets by Goldcorp is subject to the
following terms and conditions for the exclusive benefit of Goldcorp, to be
fulfilled or performed at or prior to the Time of Closing:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Barrick contained in this Agreement shall be true and correct in
all material respects at the Time of Closing (other than the
representation and warranty set out in Section 8.2(ii) and (iii)
which shall be true and correct in all material respects immediately
prior to any merger, amalgamation, arrangement or business
combination with, or any wind-up or liquidation of, or any similar
transaction involving, Placer), with the same force and effect as if
such representations and warranties were made at and as of such
time, and a certificate of a senior officer of Barrick dated the
Closing Date to that effect shall have been delivered to Goldcorp;
(b) COVENANTS. All of the terms, covenants and conditions of this
Agreement to be complied with or performed by Barrick at or before
the Time of Closing shall have been complied with or performed in
all material respects and a certificate of a senior officer of
Barrick dated the Closing Date to that effect shall have been
delivered to Goldcorp;
(c) APPROVAL OF GOVERNMENTAL AUTHORITIES. The approvals, relief, orders,
notices, applications, consents and authorizations referred to in
Section 2.2 in relation to the purchase and sale of the Transferred
Assets that are required to be made, given or obtained prior to the
Closing of the purchase and sale of the Transferred Assets shall
have been made, given or obtained, except for such approvals,
relief, orders, notices, applications, consents or authorizations
the failure to make, give or obtain which would not have a Material
Adverse Effect;
(d) MATERIAL ADVERSE CHANGE. There shall have been no Material Adverse
Change from the date of this Agreement to the Unconditional Bid
Date;
(e) NO ACTION, PROCEEDING OR ORDER. No legal or regulatory action or
proceeding shall have been commenced by any person to enjoin,
restrict or prohibit the purchase and sale of the Transferred Assets
contemplated hereby, which action or proceeding shall not have been
resolved, and no order or judgment of a Governmental Authority to
enjoin, restrict or prohibit the purchase and sale of the
Transferred Assets contemplated hereby shall be in effect ;
(f) CORPORATE DOCUMENTATION. Barrick shall have delivered to Goldcorp a
certificate of status for Barrick dated within three days of the
Closing Date and a copy, certified by a senior officer of Barrick as
of the Closing Date, of its articles and by-laws; and
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(g) DELIVERY OF DOCUMENTS. Barrick shall have delivered all necessary
transfers, assignments and other documentation in form and substance
agreed by the parties, acting reasonably, reasonably required to
transfer the Transferred Assets to Goldcorp on an as is where is
basis as contemplated in Article 6 and Article 7.
If any of the conditions contained in this Section 13.1 shall not be performed
or fulfilled at or prior to the Time of Closing to the satisfaction of Goldcorp,
acting reasonably, Goldcorp may, by notice to Barrick, terminate this Agreement,
other than the obligations of the parties pursuant to Article 3, Article 4,
Article 16 and Article 18, in which case this Agreement, other than such
obligations pursuant to Article 3, Article 4, Article 16 and Article 18, shall
be terminated. Any such condition may be waived in whole or in part by Goldcorp
without prejudice to any claims it may have for breach of covenant,
representation or warranty.
ARTICLE 14
CONDITIONS OF CLOSING IN FAVOUR OF BARRICK
14.1 CONDITIONS OF CLOSING IN FAVOUR OF BARRICK
The sale of the Transferred Assets by Barrick is subject to the following
terms and conditions for the exclusive benefit of each of Barrick, to be
fulfilled or performed at or prior to the Time of Closing:
(a) AVAILABILITY OF BUMP. Barrick shall be satisfied, acting reasonably,
that no circumstances exist which would prevent Barrick from
implementing the Bump in connection with or as a result of the
Post-Completion Reorganization, including (i) Xxxxxxx'x satisfaction
that there has not been any change to the Tax Act or relevant
administrative practice which could reasonably be expected to
adversely affect Xxxxxxx'x ability to complete the Bump, (ii)
Xxxxxxx'x satisfaction that at the time of Xxxxxxx'x acquisition of
control of Placer, CLA is a direct wholly-owned subsidiary of Placer
and owns, directly or indirectly, all of Placer's interest in the
Xxxxxxxx mine, the Porcupine joint venture, the Xxxxxxxxxxx joint
venture and the La Coipa mine, and (iii) the Bump shall have been
completed;
(b) ACQUISITION OF PLACER. Barrick shall have acquired all of the issued
and outstanding Placer Shares;
(c) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Goldcorp contained in this Agreement shall be true and correct in
all material respects at the Time of Closing, with the same force
and effect as if such representations and warranties were made at
and as of such time, and a certificate of a senior officer of
Goldcorp dated the Closing Date to that effect shall have been
delivered to Barrick;
(d) COVENANTS. All of the terms, covenants and conditions of this
Agreement to be complied with or performed by Goldcorp at or before
the Time of Closing shall have been complied with or performed in
all material respects and a certificate of a senior officer of
Goldcorp dated the Closing Date to that effect shall have been
delivered to Barrick;
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(e) CONFIRMATION OF NO MATERIAL ADVERSE CHANGE. Goldcorp shall have
provided its irrevocable written confirmation(s) that there has been
no Material Adverse Change during the relevant period(s) as required
by Section 11.4 within the time provided therefor;
(f) APPROVAL OF GOVERNMENTAL AUTHORITIES. The approvals, relief, orders,
notices, applications, consents and authorizations referred to in
Section 2.2 in relation to the purchase and sale of the Transferred
Assets that are required to be made, given or obtained prior to the
Closing of the purchase and sale of the Transferred Assets shall
have been made, given or obtained, except for such approvals,
relief, orders, notices, applications, consents or authorizations
the failure to make, give or obtain which would not have a Material
Adverse Effect;
(g) NO ACTION, PROCEEDING OR ORDER. No legal or regulatory action or
proceeding shall have been commenced by any person to enjoin,
restrict or prohibit the purchase and sale of the Transferred Assets
(or assumption of the Assumed Liabilities) contemplated hereby or
any of the other Intended Transactions, which action or proceeding
shall not have been resolved and no order or judgment of a
Governmental Authority to enjoin, restrict or prohibit the purchase
and sale of the Transferred Assets (or assumption of the Assumed
Liabilities) contemplated hereby shall be in effect;
(h) CORPORATE DOCUMENTATION. Goldcorp shall have delivered to Barrick a
certificate of status for Goldcorp dated within three days of the
Closing Date and a copy, certified by a senior officer of Goldcorp
as of the Closing Date, of its articles and by-laws; and
(i) PAYMENT OF PURCHASE PRICE AND OTHER AMOUNTS. Goldcorp shall have
paid or delivered to, or to the order of, Barrick the Purchase Price
(less the Deposit, as provided in Section 6.7(b)), including
execution and delivery by Goldcorp of an assumption agreement, in
form and substance agreed by the parties, acting reasonably,
regarding the assumption of the Assumed Liabilities, and all other
amounts to be paid by Goldcorp to (or to the order of) Barrick on
the Closing Date, and Barrick shall have received the Deposit and
Deposit Interest.
If any of the conditions contained in this Section 14.1 shall not be performed
or fulfilled at or prior to the Time of Closing to the satisfaction of Barrick,
acting reasonably, Barrick may, by notice to Goldcorp, terminate this Agreement,
other than the obligations of the parties pursuant to Article 3, Article 4,
Article 16 and Article 18, in which case this Agreement, other than such
obligations pursuant to Article 3, Article 4, Article 16 and Article 18, shall
be terminated. Any such condition may be waived in whole or in part by Barrick
without prejudice to any claims it may have for breach of covenant,
representation or warranty.
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ARTICLE 15
CLOSING ARRANGEMENTS AND TERMINATION
15.1 DATE AND PLACE OF CLOSING
The closing of the purchase and sale of the Transferred Assets (the
"CLOSING") will occur on the fifth Business Day following the satisfaction
and/or waiver of all conditions to Closing set forth in Sections 13.1 and 14.1
(other than, in each case, conditions to be satisfied on the Closing Date) or on
such other date as may be agreed in writing by the parties (the "CLOSING Date").
The Closing shall take place at the Time of Closing at the offices of Davies
Xxxx Xxxxxxxx & Xxxxxxxx LLP, 44th Floor, 1 First Xxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxx.
15.2 PURCHASE TERMINATION DATE
If all of the conditions to Closing set forth in Sections 13.1 and 14.1
(other than, in each case, conditions to be satisfied on the Closing Date) have
not been satisfied and/or waived on or before the earlier of:
(a) if Barrick does not acquire any Placer Shares pursuant to the Bid,
the Bid Expiration Date;
(b) if Barrick acquires any Placer Shares pursuant to the Bid, five
months after the Bid Expiration Date; and
(c) October 31, 2006,
(the "PURCHASE TERMINATION DATE") then the obligation of Barrick to sell, and
the obligation of Goldcorp to purchase, the Transferred Assets shall terminate;
provided that the Purchase Termination Date may be extended once by up to 30
days by a party if all of the conditions of Closing in favour of the other party
(other than those conditions to be satisfied on the Closing Date) have been
satisfied or waived on or before the Purchase Termination Date and the
conditions of Closing in favour of the extending party (other than those
conditions to be satisfied on the Closing Date) have not been satisfied by the
Purchase Termination Date and are reasonably expected to be satisfied in the
30-day period after the initial Purchase Termination Date. Such termination
shall not affect any of the other rights and obligations or remedies of the
parties under this Agreement.
15.3 EARLY TERMINATION FOR MATERIAL BREACH
If a party (the "DEFAULTING PARTY") breaches in a material respect any of
its covenants or representations or warranties or indemnities in this Agreement
and such breach is not cured by the Defaulting Party within 15 days of receiving
written notice thereof from the other party (the "NON-DEFAULTING PARTY") if such
breach is capable of being cured, or, if such breach is not capable of being
cured then upon such breach, the Non-Defaulting Party shall have the right to
terminate this Agreement, other than the obligations of the parties pursuant to
Article 3, Article 4, Article 16 and Article 18, in which case this Agreement,
other than such obligations pursuant to Article 3, Article 4, Article 16 and
Article 18, shall be terminated. Such termination will not affect any of the
other rights or remedies of the parties under this
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Agreement, including rights or remedies in respect of such breach. If Goldcorp
is the Defaulting Party, then the Deposit and Deposit Interest shall be
forfeited by Goldcorp and paid to Barrick promptly following the termination of
obligations pursuant to this Section 15.3. Upon unconditional receipt by Barrick
of the Deposit and Deposit Interest forfeited by Goldcorp, Barrick shall
terminate and not pursue any claim against Goldcorp for breach of this
Agreement, all liability of Goldcorp in connection with such breach having been
fully and finally satisfied by the irrevocable payment of the Deposit and
Deposit Interest to Barrick.
15.4 TERMINATION UPON CHANGE IN CONTROL
If there is a change in control of a party, the other party shall have the
right, exercisable within 30 days of such change in control, to terminate this
Agreement, other than the obligations of the terminating party pursuant to
Article 4, Article 16 and Article 18 and the obligations of the other party
(that is, the party which was the subject of the change in control) pursuant to
Article 3, Article 4, Article 16 and Article 18, in which case this Agreement,
other than such obligations, shall be terminated. Such termination will not
affect any of the other rights or remedies of the parties under this Agreement.
For the purposes of this Section 15.4, "change in control" of a party means (i)
a person or group of persons acting jointly or in concert acquire 30% or more of
the then outstanding equity securities of the party, or (ii) 50% of more of the
members of the board of directors of the party have been nominated by any person
or group of persons acting jointly or in concert, or (iii) the party completes
an amalgamation, merger, arrangement, takeover bid, share exchange or other form
of business combination transaction as a result of which persons who were
shareholders of the party immediately prior to completion of that transaction
constitute 50% or less of the shareholders of the remaining company or its
publicly-traded direct or indirect parent entity immediately following
completion of that transaction. Promptly following such termination (provided
that the Closing shall not have occurred on or before such termination), the
Deposit and Deposit Interest shall be paid to Goldcorp.
15.5 FURTHER ASSURANCES
Each party to this Agreement covenants and agrees that, from time to time
subsequent to the date hereof, such party will, at the request and expense of
the requesting party, execute and deliver all such documents, including all such
conveyances, transfers, consents, assumption documents and other assurances and
do all such other acts and things as the other party hereto, acting reasonably,
may from time to time request be executed or done in order to better evidence or
perfect or effectuate any provision of this Agreement or of any agreement or
other document executed pursuant to this Agreement or any of the respective
obligations intended to be created hereby or thereby.
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ARTICLE 16
INDEMNIFICATION
16.1 INDEMNIFICATION BY BARRICK
Barrick agrees to indemnify and save harmless Goldcorp from all Losses
suffered or incurred by Goldcorp as a result of or arising directly or
indirectly out of or in connection with:
(a) any breach by Barrick or any inaccuracy of any representation or
warranty of Barrick contained in this Agreement or in any agreement,
instrument, certificate or other document delivered pursuant hereto
(provided that Barrick shall not be required to indemnify or save
harmless Goldcorp in respect of any breach or inaccuracy of any
representation or warranty unless Goldcorp shall have provided
notice to Barrick in accordance with Section 16.3 on or prior to the
expiration of the applicable time period related to such
representation and warranty set out in Section 17.1);
(b) any breach or non-performance by Barrick of any covenant to be
performed by Barrick which is contained in this Agreement or in any
agreement, instrument, certificate or other document delivered
pursuant hereto (provided that Barrick shall not be required to
indemnify or save harmless Goldcorp pursuant hereto unless Goldcorp
shall have provided notice to Barrick in accordance with Section
16.3 on or prior to the expiration of the applicable time period
related to such covenant set out in Section 17.1); or
(c) if the Closing shall have occurred, any Liability of Placer or any
of its Affiliates assumed by or transferred to Goldcorp which is not
a Goldcorp Liability that has not been accounted for with a Purchase
Price adjustment pursuant to Section 6.1.
16.2 INDEMNIFICATION BY GOLDCORP
Goldcorp agrees to indemnify and save harmless Barrick from all Losses
suffered or incurred by Barrick as a result of or arising directly or indirectly
out of or in connection with:
(a) any breach by Goldcorp or any inaccuracy of any representation or
warranty of Goldcorp contained in this Agreement or in any
agreement, instrument, certificate or other document delivered
pursuant hereto (provided that Goldcorp shall not be required to
indemnify or save harmless Barrick in respect of any breach or
inaccuracy of any representation or warranty unless Barrick shall
have provided notice to Goldcorp in accordance with Section 16.3 on
or prior to the expiration of the applicable time period related to
such representation and warranty set out in Section 17.2);
(b) any breach or non-performance by Goldcorp of any covenant to be
performed by Goldcorp which is contained in this Agreement or in any
agreement, instrument, certificate or other document delivered
pursuant hereto (provided that Goldcorp shall not be required to
indemnify or save harmless Barrick pursuant hereto unless
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Barrick shall have provided notice to Goldcorp in accordance with
Section 16.3 on or prior to the expiration of the applicable time
period related to such covenant set out in Section 17.2);
(c) if the Closing shall have occurred, any Goldcorp Liability that has
not been accounted for with a Purchase Price adjustment pursuant to
Section 6.1; or
(d) any Indemnified Taxes assessed or reassessed against Barrick.
16.3 NOTICE OF CLAIM
In the event that a party (the "INDEMNIFIED PARTY") shall become aware of
any claim, proceeding or other matter (other than in respect of Indemnified
Taxes) (a "CLAIM") in respect of which the other party (the "INDEMNIFYING
PARTY") agreed to indemnify the Indemnified Party pursuant to this Agreement,
the Indemnified Party shall promptly give written notice thereof to the
Indemnifying Party. Such notice shall specify whether the Claim arises as a
result of a claim by a person (a "THIRD PARTY") against the Indemnified Party (a
"THIRD PARTY CLAIM") or whether the Claim does not so arise (a "DIRECT CLAIM"),
and shall also specify with reasonable particularity (to the extent that the
information is available) the factual basis for the Claim and the amount of the
Claim, if known. If, through the fault of the Indemnified Party, the
Indemnifying Party does not receive notice of any Claim in time to contest
effectively the determination of any liability susceptible of being contested,
the Indemnifying Party shall be entitled to set off against the amount claimed
by the Indemnified Party the amount of any Losses incurred by the Indemnifying
Party resulting from the Indemnified Party's failure to give such notice on a
timely basis.
16.4 TAX CLAIMS
In the event that Barrick becomes aware of any claim for Indemnified Taxes
(a "TAX CLAIM") or any pending or threatened tax audit, assessment, reassessment
or proceeding that may result in Indemnified Taxes, Barrick shall promptly give
written notice thereof to Goldcorp in the manner provided for herein. Such
notice shall specify with reasonable particularity (to the extent that the
information is available) the factual basis for any Tax Claim, or potential
liabilities for Indemnified Taxes, and the amount of the Tax Claim, or potential
liability, if known, and shall include copies of any notice or other documents
received from a Governmental Authority in respect of any such matters. Goldcorp
shall pay to Barrick an amount equal to the amount of Indemnified Taxes upon the
earlier of: (i) Barrick making a payment to a Governmental Authority in respect
of Indemnified Taxes; and (ii) the amount of Indemnified Taxes being finally
determined whether by agreement with the Governmental Authority or by judicial
determination. If Barrick shall receive a refund of any Indemnified Taxes in
respect of which a payment has been made pursuant to this section the amount of
such refund shall forthwith be paid to Goldcorp, together with interest, if any,
paid by the applicable Governmental Authority on such refund (net of any taxes
thereon).
If the amount of Indemnified Taxes imposed on or suffered by Barrick in
respect of which such payment was made, as finally determined, is greater than
the amount which was paid by Goldcorp to Barrick or to any Governmental
Authority on account of Indemnified Taxes,
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Goldcorp shall, forthwith following such final determination, pay the amount of
such difference to Barrick together with any interest which may be payable to a
Governmental Authority in respect of such amount.
16.5 DIRECT CLAIMS
With respect to any Direct Claim, following receipt of notice from the
Indemnified Party of the Claim, the Indemnifying Party shall have 60 days to
make such investigation of the Claim as is considered necessary or desirable.
For the purpose of such investigation, the Indemnified Party shall make
available to the Indemnifying Party the information relied upon by the
Indemnified Party to substantiate the Claim, together with all such other
information as the Indemnifying Party may reasonably request. If both parties
agree at or prior to the expiration of such 60-day period (or any mutually
agreed upon extension thereof) to the validity and amount of such Claim, the
Indemnifying Party shall immediately pay to the Indemnified Party the full
agreed upon amount of the Claim, failing which the matter shall be submitted to
arbitration pursuant to Article 18.
16.6 INTEREST ON LOSS
For the purposes of Sections 16.1 and 16.2, the Losses suffered or
incurred by a party relating to a Direct Claim will include interest on the
amount of the Loss calculated at the prime lending rate of the Royal Bank of
Canada from time to time plus 5% (500 basis points), compounded monthly in
arrears, from the time the Loss is suffered or incurred by such party to the
time that the other party pays in full any required indemnity payment in respect
of such Direct Claim pursuant to this Article 16 (including payment of compound
interest pursuant to this Section 16.6).
16.7 THIRD PARTY CLAIMS
With respect to any Third Party Claim, the Indemnifying Party shall have
the right, at its expense, to participate in or assume control of the
negotiation, settlement or defence of the Claim and, in such event, the
Indemnifying Party shall reimburse the Indemnified Party for all the Indemnified
Party's out-of-pocket expenses as a result of such participation or assumption.
If the Indemnifying Party elects to assume such control, the Indemnified Party
shall have the right to participate in the negotiation, settlement or defence of
such Third Party Claim and to retain counsel to act on its behalf, provided that
the fees and disbursements of such counsel shall be paid by the Indemnified
Party unless the Indemnifying Party consents to the retention of such counsel or
unless the named parties to any action or proceeding include both the
Indemnifying Party and the Indemnified Party and the representation of both the
Indemnifying Party and the Indemnified Party by the same counsel would be
inappropriate due to the actual or potential differing interests between them
(such as the availability of different defences). If the Indemnifying Party,
having elected to assume such control, thereafter fails to defend the Third
Party Claim within a reasonable time, the Indemnified Party shall be entitled to
assume such control, and the Indemnifying Party shall be bound by the results
obtained by the Indemnified Party with respect to such Third Party Claim. If any
Third Party Claim is of a nature such that the Indemnified Party is required by
applicable Legal Requirements to make a payment to any Third Party with respect
to the Third Party Claim before the completion of
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settlement negotiations or related legal proceedings, as the case may be, the
Indemnified Party may make such payment, up to $25,000 without the Indemnifying
Party's consent and over $25,000 with the Indemnifying Party's consent and the
Indemnifying Party shall, forthwith after demand by the Indemnified Party,
reimburse the Indemnified Party for such payment, provided that: (i) any such
payment shall be made on the basis that it is without prejudice to either the
Indemnified Party's or the Indemnifying Party's position VIS-A-VIS the Third
Party Claim and (ii) the Indemnified Party first gives a written notice to the
Indemnifying Party setting out the nature of the Claim in sufficient detail to
enable the Indemnifying Party to reasonably satisfy itself that it would be
responsible for the Claim pursuant to the provisions hereof. If the amount of
any liability of the Indemnified Party under the Third Party Claim in respect of
which such payment was made, as finally determined, is less than the amount
which was paid by the Indemnifying Party to the Indemnified Party, the
Indemnified Party shall, forthwith after receipt of the difference from the
Third Party, pay the amount of such difference to the Indemnifying Party. If any
payment pursuant to Section 16.8, resulting in settlement of the Third Party
Claim, precludes a final determination of the merits of the Third Party Claim
and the Indemnified Party and the Indemnifying Party are unable to agree whether
such payment was required to be made, such dispute shall be submitted to
arbitration pursuant to Article 18.
16.8 SETTLEMENT OF THIRD PARTY CLAIMS
If the Indemnifying Party fails to assume control of the defence of any
Third Party Claim, the Indemnified Party shall have the exclusive right to
contest, settle or pay the amount claimed. Whether or not the Indemnifying Party
assumes control of the negotiation, settlement or defence of any Third Party
Claim, the Indemnifying Party shall not settle any Third Party Claim without the
written consent of the Indemnified Party, which consent shall not be
unreasonably withheld or delayed; provided, however, that the liability of the
Indemnifying Party shall be limited to the proposed settlement amount if the
consent of the Indemnified Party to the proposed settlement is unreasonably
withheld or delayed.
16.9 COOPERATION
The Indemnified Party and the Indemnifying Party shall cooperate fully
with each other with respect to Third Party Claims, and shall keep each other
fully advised with respect thereto (including supplying copies of all relevant
documentation promptly as it becomes available).
16.10 EXCLUSIVITY
Except as provided in Sections 6.7(c) and 15.3, which provide for the
forfeiture of the Deposit and Deposit Interest to Barrick in certain
circumstances and satisfaction of all liability of Goldcorp in connection with
its breach of this Agreement upon the irrevocable receipt of such Deposit and
Deposit Interest by Barrick, the provisions of this Article 16 shall apply to
any Claim for breach of any covenant, representation, warranty or other
provision of this Agreement or any agreement, certificate or other document
delivered pursuant hereto (other than a claim for specific performance or
injunctive relief) with the intent that all such Claims shall be subject to the
limitations and other provisions contained in this Article 16.
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16.11 MITIGATION
Nothing contained in this Article 16 shall eliminate or reduce an
Indemnified Party's obligations to mitigate its Loss.
ARTICLE 17
SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND INDEMNITIES
17.1 SURVIVAL OF REPRESENTATIONS WARRANTIES, COVENANTS AND INDEMNITIES OF
BARRICK
To the extent that they have not been fully performed at or prior to the
Time of Closing, the indemnities, covenants, representations and warranties of
Barrick contained in this Agreement or in any document, certificate or
undertaking given pursuant hereto shall survive the Closing and, notwithstanding
such Closing nor any investigation made by or on behalf of Goldcorp, shall
continue in full force and effect for the benefit of Goldcorp until 18 months
after the Closing Date, or if the Closing does not occur on or before the
Purchase Termination Date, until 18 months after the Purchase Termination Date,
except for:
(a) the covenant of Barrick contained in Section 12.1 which shall
survive the Closing for a period of seven years following the
Closing; and
(b) the indemnity set out in Section 16.1(c) which shall survive the
Closing for a period of three years following the Closing Date.
17.2 SURVIVAL OF THE REPRESENTATIONS, WARRANTIES, COVENANTS AND INDEMNITIES OF
GOLDCORP
To the extent that they have not been fully performed at or prior to the
Time of Closing, the indemnities, covenants, representations and warranties of
Goldcorp contained in this Agreement or in any document, certificate or
undertaking given pursuant hereto shall survive the Closing and, notwithstanding
such Closing nor any investigation made by or on behalf of Barrick, shall
continue in full force and effect for the benefit of Barrick until 18 months
after the Closing Date, or if the Closing does not occur on or before the
Purchase Termination Date, until 18 months after the Purchase Termination Date,
except for:
(a) the representations, warranties and covenants of Goldcorp contained
in Sections 3.3(a)(i), 3.4(b) and 3.4(c) and the indemnity set out
in Section 16.2(d), which shall survive the Closing until 90 days
after the expiry of the reassessment period for the taxation year of
Barrick that includes the Closing;
(b) the covenants of Goldcorp contained in Sections 11.1 and 11.2 which
shall survive for a period of two years following the Purchase
Termination Date;
(c) the covenant of Goldcorp contained in Section 12.1 which shall
survive the Closing for a period of seven years following the
Closing; and
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(d) the indemnity set out in Section 16.2(c) which shall survive the
Closing for a period of three years following the Closing Date.
17.3 NOTICE OF CLAIM
Any claim for breach, violation or inaccuracy of any covenant,
representation or warranty or claim for indemnity under this Agreement or in any
document, certificate or undertaking given pursuant hereto, to be effective must
be asserted in writing prior to the applicable expiration date set forth in this
Article 17, provided that a claim for any breach of any of the representations
and warranties contained in this Agreement or in any agreement, instrument,
certificate or other document executed or delivered pursuant hereto involving
fraud or fraudulent misrepresentation may be made at any time following the
Closing Date, subject only to applicable limitation periods imposed by Legal
Requirements.
ARTICLE 18
DISPUTE RESOLUTION
18.1 MATTERS TO BE ARBITRATED
Any dispute, controversy or claim arising under or in connection with this
Agreement, the resolution of which is not provided for in this Agreement and
which cannot be resolved or settled by the parties, including any inability to
agree on an adjustment to the Purchase Price or any other matter to be agreed
upon by the parties pursuant to Section 6.1, shall be settled by arbitration in
accordance with this Article 18 upon written notice by a party to the other.
18.2 PROCEDURE FOR ARBITRATION
(a) Arbitration will be conducted in accordance with the ONTARIO
ARBITRATION ACT, 1991, as amended, by three arbitrators. Each party will appoint
one arbitrator, and such arbitrators together shall appoint the third
arbitrator. Each arbitrator shall be an individual with not less than 15 years
of expertise in the precious metals mining industry as a senior executive,
accountant or lawyer and no arbitrator shall have been a director, officer or
employee of, or contractor or service provider to, or director, officer,
beneficial owner or close relative of a beneficial owner of any contractor or
service provider to, any party for a period of five years preceding his or her
appointment as an arbitrator. The place of arbitration will be Xxxxxxx, Xxxxxxx.
The language of the arbitration will be English. The arbitration will be the
sole and exclusive forum for resolution of the dispute, controversy or claim.
The award (including any award as to the costs of the arbitration) will be final
and binding and not subject to review or appeal for any reason whatsoever.
Judgment thereon may be entered by any court having jurisdiction.
(b) All matters relating to any dispute, controversy or claim which is the
subject-matter of arbitration hereunder, including all submissions made to the
arbitrators and the decision of the arbitrators, shall be treated as
confidential by the parties and the parties shall, and shall cause any
witnesses, counsel or professional advisers retained in connection with such an
arbitration to, maintain all such matters in strict confidence.
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18.3 CONTINUING OBLIGATIONS
Pending settlement of any dispute, controversy or claim, the parties shall
abide by their obligations under this Agreement without prejudice to a final
adjustment in accordance with an award rendered in an arbitration settling such
dispute, controversy or claim.
ARTICLE 19
MISCELLANEOUS
19.1 NOTICES
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be delivered in person, transmitted by
facsimile (fax) transmission or sent by registered mail, charges prepaid,
addressed as follows:
(a) If to Barrick:
Xxxxxxx Gold Corporation
BCE Place, Suite 3700
000 Xxx Xxxxxx, X.X. Xxx 000
Xxxxxxx, XX X0X 0X0
Attention: Xxxxxxxxx X. Xxxxxxxx
Fax No.: 000.000.0000
with a copy (which copy shall not constitute notice) to:
Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP
Suite 4400
0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX X0X 0X0
Attention: Xxxxx Xxxxxxx
Fax No.: 000-000-0000
(b) If to Goldcorp:
Goldcorp Inc.
Xxxxxxxxxx Xxxxxx
Xxxxx 0000, 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: Xxx Xxxxxx
Fax No.: 000.000.0000
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with a copy (which copy shall not constitute notice) to:
Xxxxxxx Xxxxx & Xxxxxxxxx LLP
2100 Scotia Plaza
00 Xxxx Xx. Xxxx
Xxxxxxx, XX X0X 0X0
Attention: Xxxx Xxxxx
Fax No.: 000-000-0000
Any such notice or other communication shall be deemed to have been given and
received on the day on which it was delivered or transmitted (or, if such day is
not a Business Day, on the next following Business Day) or, if mailed, on the
third Business Day following the date of mailing; provided, however, that if at
the time of mailing or within three Business Days thereafter there is or occurs
a labour dispute or other event which might reasonably be expected to disrupt
the delivery of documents by mail, any notice or other communication hereunder
shall be delivered or transmitted by means of recorded electronic communication
as aforesaid. Any party may at any time change its address for service from time
to time by giving notice to the other parties in accordance with this Section
19.1.
19.2 COMMISSIONS, ETC.
Each party acknowledges that it has not engaged any broker, agent or other
intermediary to act on its behalf in connection with the transactions
contemplated by this Agreement except for the Financial Advisors. Each party
agrees to indemnify and save harmless the other party from and against all
Losses suffered or incurred by such other party in respect of any commission or
other remuneration payable or alleged to be payable to any broker, agent or
other intermediary who purports to act or have acted for or on behalf of such
first-mentioned party, other than the Financial Advisors (whose remuneration is
dealt with in connection with Joint Expenses).
19.3 CONSULTATION
The parties shall consult with each other before making any public
disclosure regarding any of the Intended Transactions or the relationship of the
parties that materially deviates from the framework for descriptions of the
Intended Transactions and the relationship of the parties referred to in Section
2.3. Except as required by any applicable Legal Requirement, Barrick shall not
issue or file any press release or material change report referring to Goldcorp
without the prior written consent of Goldcorp, which consent shall not be
unreasonably withheld or delayed. Except as required by any applicable Legal
Requirement, Goldcorp shall not issue or file any press release or material
change report referring to Barrick or any of the Intended Transactions without
the prior written consent of Barrick, which consent shall not be unreasonably
withheld or delayed.
19.4 ASSIGNMENT AND ENFORCEABILITY
This Agreement shall be binding upon and enforceable by the parties and
their respective successors and permitted assigns. No party may assign any of
its rights or benefits
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under this Agreement, or delegate any of its duties or obligations under this
Agreement, to any person without the prior written consent of the other party.
19.5 ENTIRE AGREEMENT
This Agreement and the confidentiality agreement between the parties dated
October 7, 2005 (the "CONFIDENTIALITY AGREEMENT") constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements, understandings, negotiations and
discussions, whether written or oral. There are no conditions, covenants,
agreements, representations, warranties or other provisions, express or implied,
collateral, statutory or otherwise, relating to the subject matter of this
Agreement or the Confidentiality Agreement except as provided in this Agreement
or the Confidentiality Agreement, respectively. No reliance is placed on any
warranty, representation, opinion, advice or assertion of fact made either prior
to, contemporaneous with, or after entering into this Agreement or the
Confidentiality Agreement by any party to this Agreement except to the extent
that the same has been reduced to writing and included as a term of this
Agreement or the Confidentiality Agreement and neither of the parties to this
Agreement has been induced to enter into this Agreement or the Confidentiality
Agreement by reason of any such warranty, representation, opinion, advice or
fact. Accordingly, there shall be no liability, either in tort or in contract,
assessed in relation to any such warranty, representation, opinion, advice or
assertion of fact, except to the extent the same has been reduced to writing and
included as a term in this Agreement or the Confidentiality Agreement.
19.6 AMENDMENTS AND WAIVER
No amendment or waiver of any provision of this Agreement shall be binding
on either party unless consented to in writing by such party. No waiver of any
provision of this Agreement shall constitute a waiver of any other provision,
nor shall any waiver constitute a continuing waiver unless otherwise provided.
19.7 SEVERABILITY
If any provision contained herein is determined to be void or
unenforceable in whole or in part, it shall not be deemed to affect or impair
the validity of any other provision herein and each such provision is deemed to
be separate and distinct.
19.8 TIME OF ESSENCE
Time shall be of the essence of this Agreement.
19.9 COUNTERPARTS; FACSIMILE
This Agreement may be executed in counterparts, each of which shall
constitute an original and all of which taken together shall constitute one and
the same instrument. This Agreement may be delivered by either party by
facsimile and if so executed and delivered shall be legally valid and binding on
the party executing in such manner.
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IN WITNESS WHEREOF this Agreement has been executed by the parties.
XXXXXXX GOLD CORPORATION
by /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President and Chief Executive
Officer
/s/ Xxxxxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Executive Vice President,
Exploration and Corporate
Development
GOLDCORP INC.
by /s/ Xxx Xxxxxx
---------------------------------------------
Name: Xxx Xxxxxx
Title: President and Chief Executive
Officer
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SCHEDULE 1.1(BB)
GOLDCORP ASSETS
The "GOLDCORP ASSETS" are, collectively:
(a) all of Placer's direct and indirect right, title and interest in and
to all Canadian properties and operations (other than the offices in
Toronto, Ontario and Vancouver, British Columbia), including:
(i) all prospecting, exploration and development properties and
rights located in Canada,
(ii) all mining properties, operating mines and mineral rights
located in Canada,
(iii) all historic mining, development, exploration and prospecting
properties and reclamation properties, both currently and
formerly licensed, owned or operated directly or indirectly by
Placer, located in Canada, and
(iv) all equipment and buildings located on such properties;
(b) all of Placer's direct and indirect right, title and interest in and
to the La Coipa mine;
(c) subject to Section 6.10 of the Agreement, 40% of Placer's direct and
indirect right, title and interest in and to the Pueblo Viejo
project;
(d) cash generated after October 31, 2005 in respect of the activities
and operations of the assets described in paragraphs (a) to (c)
above, in such amounts as are more particularly described in Section
6.2 of the Agreement;
(e) all non-cash working capital relating to the Goldcorp Assets; and
(f) all books and records relating solely to the assets described in
paragraphs (a) to (e) above, regardless of where such books and
records are located;
together with, at the option of Goldcorp, all of Xxxxxxx'x direct and indirect
right, title and interest in and to Agua de la Falda S.A., which includes the
exploration property known as Xxxxxxxx.
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SCHEDULE 1.1(CC)
SPECIFICALLY EXCLUDED LIABILITIES
The "Goldcorp Liabilities" will specifically exclude the following Liabilities:
o All indebtedness of Placer and its Affiliates (including all
outstanding notes, bonds, debentures and series B 8.5% preferred
securities of Placer and its Affiliates) other than Liabilities
under letters of credit, bonds or other financial security
arrangements in respect of environmental, closure and reclamation
liabilities in respect of any Goldcorp Asset.
o Liabilities for taxes that arise as a result of Second Step
Transaction or the Post-Completion Reorganization.
o All obligations in respect of and to persons who are employed by or
provide services to Placer or any of its Affiliates where the
principal place at which such employment is carried out or such
services are rendered is Placer's head office in Vancouver or
Placer's corporate office in Toronto.
o All obligations in respect of the Hedge Book.
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SCHEDULE 4.1
JOINT EXPENSES
All OUT-OF-POCKET costs and expenses relating to Intended Transactions will be
"JOINT EXPENSES", including the fees and expenses payable to the Financial
Advisors, the cost of obtaining regulatory or other approvals (including filing
fees), the costs of any regulatory or court proceedings, the fees and
disbursements of Barrick and Goldcorp's legal advisors, accounting-related fees
and expenses, typesetting, printing and mailing costs, costs associated with the
public relations strategy (including the cost of road shows and the cost of
preparing and printing any promotional materials), solicitation or information
agent fees and dealer fees and dealer-manager fees, but EXCLUDING the following,
which will not be Joint Expenses:
o all costs and expenses relating to negotiating and settling the
terms of this Agreement;
o all fees and disbursements relating to the Closing (which will
exclude, for greater certainty, fees and expenses related to
obtaining any regulatory or other approvals in respect of such
transaction); and
o should Goldcorp choose to retain its own financial advisor(s) to
provide it with financial advice or to provide a fairness opinion,
the fees and expenses payable to such financial advisor(s).
