8 February 2010 Tusker recommends takeover offer from Barrick...

8 February 2010

Tusker recommends takeover offer from Barrick Gold Corporation

Tusker Gold Limited (Tusker) today announced that it had entered into an Implementation Agreement with Barrick Gold Corporation (Barrick) under which Barrick (or a subsidiary of Barrick) will make a takeover offer to acquire all of the issued shares in Tusker for A$0.80 cash per Tusker share (Offer).
The Offer represents a 90% premium to the closing price of Tusker shares of A$0.42 on 29 January 2010, being the last trading day for Tusker shares prior to the announcement of the Offer.
Tusker's board of directors has unanimously recommended that shareholders accept the Offer, in the absence of a superior proposal. Each Tusker director has also indicated to Tusker that he intends to accept the Offer in respect of each Tusker share held by him, in the absence of a superior proposal.
Tusker's controlling shareholder, Indago Resources Limited (Indago), has notified Tusker that it has entered into a pre bid acceptance agreement with Barrick under which it has agreed to accept the Offer in respect of 17.5% of the shares in Tusker. Indago has also notified Tusker that it intends to accept the Offer for the balance of its stake in Tusker (being 50% of the shares in Tusker), in the absence of a superior proposal.
Barrick has also obtained pre bid acceptance agreements for a further 2.5% of the shares in Tusker from Blue Capital Limited (2%) and Mr Peter Pynes & Mrs Lara Pynes (0.5%).
The Offer is subject to certain conditions, which are set out in full in the Annexure to this announcement. Tusker has also agreed to certain exclusivity arrangements and to the payment of a break fee, details of which are summarised in the Annexure to this announcement. The Offer will extend to Tusker shares which are issued on exercise of Tusker options.
Tusker understands that Barrick's bidder's statement will be lodged with the Australian Securities & Investments Commission later this month.
ENDS
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Annexure - Conditions, break fee and exclusivity
1.
Definitions
In this Annexure:
Announcement Date means 8 February 2010.
Approvals includes approvals, licences, Authorisations, authorities, consents, permissions, clearances, grants, confirmations, orders, exemption, waivers or rulings.
Argonaut Agreement means the one-page letter agreement between Argonaut Securities Pty Limited ABN 72 108 330 650 and Tusker dated 18 January 2010.
ASIC means the Australian Securities and Investments Commission.
ASX means ASX Limited ABN 98 008 624 691 or the securities market operated by ASX Limited ABN 98 008 624 691, as the context requires.
Associate has the same meaning as given to that term for the purposes of Chapter 6 of the Corporations Act (as modified by ASIC from time to time).
Authorisation means any licence, consent, approval, permit, registration, accreditation, certification or other authorisation given or issued by any Public Authority or any other person.
Barrick Group means Barrick and its Subsidiaries.
Bid means an off-market takeover offer to be made by Bidder for all Tusker Securities under Chapter 6 of the Corporations Act for cash consideration of $0.80 per Tusker Security subject to the Conditions.
Bidder means the member of the Barrick Group which makes the Offer.
Break Fee means $800,000.
Business Day has the meaning given in the Listing Rules.
Competing Proposal means a proposed transaction or arrangement pursuant to which a person other than Barrick or any of its Related Entities would, if the proposed transaction or arrangement is entered into or completed substantially in accordance with its terms:
(a)
directly or indirectly acquire, have a right to acquire or otherwise acquire an economic interest in, all or a substantial part of the business of Tusker;
(b)
acquire a relevant interest in 50% or more of the ordinary shares of Tusker or otherwise acquire control of Tusker within the meaning of section 50AA of the Corporations Act; or
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(c)
otherwise acquire or merge with Tusker whether by way of takeover offer, scheme of arrangement, shareholder approved acquisition, capital reduction, share buy back, sale or purchase of assets, joint venture, reverse takeover, dual-listed company structure or other synthetic merger or any other transaction or arrangement.
Conditions means the defeating conditions to the Bid set out in section 2 of this Annexure.
Confidentiality Agreement means the confidentiality agreement between Tusker and Barrick dated 30 January 2010.
Corporations Act means the Corporations Act 2001 (Cth).
Exclusivity Period means the period from 8 February 2010 to the earlier of that date which is 6 months after 8 February 2010 and the Termination Date.
GST has the meaning given in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Implementation Agreement means the implementation agreement between Barrick and Tusker dated 8 February 2010.
Listing Rules means the official listing rules of ASX.
Mineral Titles has the meaning given to that term in paragraph 1.1 of the letter from Rex Attorneys to Indago dated 16 October 2009, as contained in the prospectus issued by Tusker dated 11 November 2009.
Offer means the offer to be made by Bidder to acquire all the Tusker Securities under the Bid.
Offer Period means the period during which the Offer will remain open for acceptance.
Offer Price means $0.80 cash for each Tusker Security.
Political Event means:
(a)
an expropriatory act or omission or series of expropriatory acts or omissions, including confiscation, nationalization, requisition, deprivation and sequestration and/or similar acts, by law, order, executive or administrative action or otherwise of any Public Authority or any corporation or other entity controlled by any Public Authority;
(b)
the selective and discriminatory imposition of any law, order, decree, regulation or cancellation or withdrawal of authority by any Public Authority or any corporation or other entity controlled by any Public Authority;
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(c)
the imposition by any Public Authority of any export restriction or any other restriction preventing Tusker from exporting minerals and from receiving payment for mineral sales, whether in local or other currency, in an amount equal to the international market price for such minerals; or
(d)
war, invasion, acts of hostilities of foreign enemies (whether war be declared or not), civil war, rebellion, revolution, insurrection, civil commotions, riot, terrorism, sabotage, or military or usurped power or other violent or hostile acts.
Prescribed Occurrence means any of the following events:
(a)
Tusker converts all or any of its shares into a larger or smaller number of shares;
(b)
Tusker or a Subsidiary of Tusker resolves to reduce its capital in any way;
(c)
Tusker or a Subsidiary of Tusker:
(i)
enters into a buy-back agreement; or
(ii)
resolves to approve the terms of a buy-back agreement under subsection 257C(1) or 257D(1) of the Corporations Act;
(d)
Tusker or a Subsidiary of Tusker issues shares, or grants an option over its shares, or agrees to make such an issue or grant such an option;
(e)
Tusker or a Subsidiary of Tusker issues, or agrees to issue, convertible notes;
(f)
Tusker or a Subsidiary of Tusker disposes, or agrees to dispose, of the whole, or a substantial part, of its business or property;
(g)
Tusker or a Subsidiary of Tusker charges, or agrees to charge the whole, or a substantial part, of its business or property;
(h)
Tusker or a Subsidiary of Tusker resolves to be wound up;
(i)
a liquidator or provisional liquidator of Tusker or of a Subsidiary of Tusker is appointed;
(j)
a court makes an order for the winding up of Tusker or of a Subsidiary of Tusker;
(k)
an administrator of Tusker or of a Subsidiary of Tusker is appointed under section 436A, 436B or 436C of the Corporations Act;
(l)
Tusker or a Subsidiary of Tusker executes a deed of company arrangement; or
(m)
a receiver, or a receiver and manager, is appointed in relation to the whole, or a substantial part, of the property of Tusker or of a Subsidiary of Tusker.
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Public Authority means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity and includes ASIC and ASX.
Related Entity of a party means another entity which is:
(a)
related to the first entity within the meaning of section 50 of the Corporations Act; or
(b)
in any consolidated entity (as defined in section 9 of the Corporations Act) which contains the first entity.
Relevant Interest has the meaning given in sections 608 and 609 of the Corporations Act.
Representative of a party means:
(a)
any Related Entity of that party;
(b)
any director, officer or employee of that party or of a Related Entity of that party; and
(c)
the professional advisers retained by that party or a Related Entity of that party.
Subsidiary has the meaning given to that term in section 9 of the Corporations Act.
Superior Proposal means a Competing Proposal which:
(a)
is bona fide and in writing and in the determination of the Tusker Board acting reasonably and in good faith after consultation with Tusker's independent advisers, is capable of being valued and completed, taking into account all aspects of the Competing Proposal (including its terms and conditions and the identity of the person or persons making it); and
(b)
in the determination of the Tusker Board acting reasonably and in good faith and in order to satisfy what the board considers to be its fiduciary or statutory duties would, if completed substantially in accordance with its terms, result in a transaction more favourable to Tusker Securityholders than the Bid.
Target's Statement means the target's statement to be issued by Tusker under section 638 of the Corporations Act in response to the Bid,
Termination Date means the date the Implementation Agreement is validly terminated in accordance with clause 11.
Tusker Board means the board of directors of Tusker.
Tusker Director means a director of Tusker.
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Tusker Group means Tusker and its Subsidiaries.
Tusker Option means an option to acquire a Tusker Security issued under the Tusker Incentive Option Scheme or otherwise.
Tusker Security means a fully paid ordinary share in the capital of Tusker.
Tusker Security Register means the registers of members of Tusker maintained by or on behalf of Tusker in accordance with the Corporations Act.
Tusker Securityholder means a person who is registered in the Tusker Security Register as a holder of Tusker Securities.
2.
Conditions
The Offer will be subject to conditions substantially as set out below.
2.1
90% minimum acceptance
At the end of the Offer Period, Bidder and its Associates together have a Relevant Interest in at least 90% of the Tusker Securities.
2.2
Other regulatory approval
Before the end of the Offer Period, Bidder has obtained on an unconditional basis all Approvals by law or by any Public Authority as are necessary in relation to the Offer including to enable the Offer to be lawfully made and accepted by Tusker Securityholders, and all such Approvals remain in full force and effect as at the end of the Offer Period. For the avoidance of doubt, an Approval is necessary where not obtaining that Approval could:
(a)
restrain or prohibit or otherwise materially adversely affect the making of the Offer, or the completion of any transaction contemplated by the Offer, or the rights of Bidder in respect of Tusker and the Tusker Securities to be acquired under the offer; or
(b)
require the divestiture by Bidder of Tusker Securities, or the divestiture of any assets of the Tusker Group, the Barrick Group or otherwise.
2.3
Cancellation of Tusker Options
By no later than 8 days before the end of the Offer Period, Tusker provides evidence to Barrick that:
(a)
the holders of all Tusker Options have irrevocably agreed to cancel their Tusker Options in exchange for payment by Tusker of an amount (exclusive of GST) for each Tusker Option equal to and not exceeding the difference between the Offer
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Price and the exercise price of that Tusker Option, subject only to the Offer becoming free from all defeating conditions; and
(b)
Tusker has obtained on an unconditional basis all Approvals required for the cancellation of the Tusker Options, including evidence that the ASX has provided its consent under Listing Rule 9.17 (if ASX determines that such cancellation requires such consent) and waived the application of Listing Rule 6.23.2 in respect of the cancellation of the Tusker Options.
2.4
Argonaut Agreement
No options are issued to Argonaut Securities Pty Limited pursuant to the Argonaut Agreement or otherwise and by no later than 8 days before the end of the Offer Period, Tusker provides evidence to Barrick that Tusker and Argonaut Securities Pty Limited have irrevocably agreed to terminate the Argonaut Agreement (with Argonaut Securities Pty Limited having no further right to be issued options under the Argonaut Agreement) in exchange for payment to Argonaut Securities Pty Limited of an amount of no more than $1.6 million (exclusive of GST), subject only to the Offer becoming free from all defeating conditions.
2.5
Prescribed Occurrences
Before the first date on which all of Conditions 1 - 4 (being those in clauses 2.1 - 2.4 above) have been satisfied or waived, no Prescribed Occurrence occurs.
2.6
No material transactions or changes
Except as disclosed in any public announcement by Tusker delivered to ASX prior to the Announcement Date, no member of the Tusker Group has between the Announcement Date and the first date on which all of Conditions 1 - 4 (being those in clauses 2.1 - 2.4 above) have been satisfied or waived:
(a)
issued or agreed to issue, or authorised or proposed the issue of, any equity, debt or hybrid security (including any security convertible into shares of any class) or rights, warrants, performance rights or options to subscribe for or acquire any such securities, other than upon the exercise of any Tusker Option;
(b)
recommended, declared, paid or made, or resolved to recommend, declare, pay or make any bonus, dividend or other distribution whether payable in cash, in specie or otherwise;
(c)
issued or agreed to issue any debentures, or except in the ordinary course of business incurred or increased any indebtedness for a material amount in aggregate;
(d)
implemented or entered into any scheme or arrangement or compromise (including one for a reconstruction or amalgamation of any members of the Tusker Group), or a deed of company arrangement, or any analogous procedure, scheme or arrangement in any jurisdiction other than in the context of a Superior Proposal;
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(e)
publicly disclosed the existence of any matter described in paragraphs (a) to (d) above; or
(f)
entered into any contract, commitment, arrangement or agreement, passed any resolution or made any offer (which remains open for acceptance) with respect to, or publicly announced an intention to, or proposal to, do anything described in paragraphs (a) to (d) above.
2.7
No Tusker Material Adverse Change
On or after the Announcement Date and before the first date on which all of Conditions 1 - 4 (being those in clauses 2.1 - 2.4 above) have been satisfied or waived:
(a)
there is no matter, event or circumstance which occurs, is discovered, announced or disclosed or otherwise becomes known to Bidder (whether or not becoming public) which, individually or when aggregated with all such matters, events or circumstances, has resulted in or could reasonably be expected to result in the value of the consolidated net assets of the Tusker Group being reduced by at least $4 million (other than as a result of Tusker making any payments contemplated by Condition 3 and 4 (being those in clauses 2.3 and 2.4 above));
(b)
no Political Event occurs which results in or could reasonably be expected to result in all or substantially all of the rights, privileges or benefits pertaining to or associated with all or any part of the mineral tenements in which Tusker has a direct or indirect interest through its interest in the Nyanzaga joint venture (Nyanzaga Mineral Tenements) ceasing to be for the benefit or entitlement of, directly or indirectly, Tusker, whether as a result of Tusker ceasing to own such Nyanzaga Mineral Tenements or otherwise; or
(c)
no event, matter, change, thing or condition (other than a fall in the gold price or other commodity prices or world stockmarket indices) occurs which (individually or when aggregated with all such events, matters, changes, things or conditions) has, or could reasonably be expected to have (whether now or in the future), a material adverse effect on the business, assets, liabilities, financial or trading position, profitability or prospects of the Tusker Group (taken as a whole) or causes a material delay in operations (other than as a result of the Offer).
3.
Exclusivity
Barrick and Tusker have agreed to the following exclusivity arrangements.
3.1
No shop
During the Exclusivity Period, Tusker must not, and must ensure that its Representatives do not, except with the prior written consent of Barrick, solicit or invite any Competing Proposal or initiate discussions with any third party which may reasonably be expected to lead to a Competing Proposal.
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3.2
No talk and no due diligence
Subject to clause 3.3, during the Exclusivity Period, Tusker must not, and must ensure that its Representatives do not, except with the prior written consent of Barrick:
(a)
participate in any negotiations in relation to a Competing Proposal or which may reasonably be expected to lead to a Competing Proposal; or
(b)
provide any information to a third party for the purposes of enabling that party to make a Competing Proposal; or
(c) communicate any intention to do any of the things listed in (a) or (b).
3.3
Exceptions
Clause 3.2 does not apply if the Tusker Board, acting in good faith, after having obtained written advice from its legal and, if appropriate, its financial advisers, determines that:
(a)
where there is a Competing Proposal, the Competing Proposal is a Superior Proposal and Tusker has complied with clause 3.9 or, where there is not yet a Competing Proposal, the steps which the board proposes to take may reasonably be expected to lead to a Competing Proposal which is a Superior Proposal; and
(b)
failing to respond to the Competing Proposal would be likely to constitute a breach of its fiduciary or statutory duties.
3.4
No commitments
During the Exclusivity Period, Tusker must not, and must ensure that its Representatives do not, except with the prior written consent of Barrick, enter into any deed, arrangement or understanding in relation to a Competing Proposal which would have the effect of requiring Tusker to abandon, or otherwise fail to proceed with, the Bid unless the Tusker Board, acting in good faith and in order to satisfy what the board considers to be its fiduciary or statutory duties, determines that the Competing Proposal is a Superior Proposal.
3.5
Tusker warranty
Tusker represents and warrants to Barrick that as at the date of this agreement:
(a)
neither it nor any of its Representatives is in discussions or negotiations with any party which may reasonably be expected to lead to a Competing Proposal; and
(b)
it has, and its Representatives have, ceased any existing discussions or negotiations with any party which may reasonably be expected to lead to a Competing Proposal.
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3.6
Notice of Competing Proposal
During the Exclusivity Period, Tusker must (subject to any overriding obligations of confidentiality it owes to any third party):
(a)
promptly notify Barrick if it or any of its Representatives receive any inquiry or proposal which may reasonably be expected to lead to a Competing Proposal;
(b)
as soon as reasonably practicable provide written notice of the identity of the party or parties involved in the inquiry or proposal (Rival Bidder); and
(c)
provide Barrick with regular updates on the status of any such inquiry or proposal.
3.7
Confidentiality agreement with Rival Bidder
If Tusker is permitted by virtue of clause 3.3 to engage in activity that would otherwise breach clause 3.2, in the event that Tusker enters into a confidentiality agreement with a Rival Bidder, it must be on terms no less onerous to the Rival Bidder than the Confidentiality Agreement is to Barrick.
3.8
Tusker's response to a Competing Proposal
Without prejudice to Barrick's rights under this clause 3, if at any time during the Exclusivity Period any Tusker Director wishes to approve or publicly recommend entry into any agreement, commitment, arrangement or understanding relating to a Competing Proposal (other than the confidentiality agreement contemplated by clause 3.7), Tusker must ensure that he does not do so:
(a)
unless the Competing Proposal is bona fide and is made in writing; and
(b)
until each of the following events has occurred:
(i)
the Tusker Board has determined in good faith and acting reasonably after consultation with Tusker's independent advisers that:
A. f
ailing to respond to the Competing Proposal would be likely to constitute a breach of its fiduciary or statutory duties; and
B.
the Competing Proposal:
1)
is capable of being valued and completed; and
2)
would, if completed substantially in accordance with its terms, be more favourable to Tusker Securityholders than the Bid,
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after taking into account all aspects of the Competing Proposal (including its terms and conditions and the identity of the Rival Bidder);
(i
i) Tusker has given Barrick notice in writing of its intention to enter into an agreement, commitment, arrangement or understanding relation to that Competing Proposal, subject to Barrick's rights under clause 3.9, as well as full details of all material terms of the Competing Proposal (including the identity of the Rival Bidder and details of the proposed consideration, conditions and break fee (if any));
(iii
) Tusker has given Barrick all information required by clause 3.6;
(iv) B
arrick's rights under clause 3.9 have been exhausted; and
(v) t
he Tusker Board has made the determination contemplated by clause 3.8(b) in respect of that Competing Proposal after Barrick's rights under clause 3.9 have been exhausted and after evaluation of any Counterproposal.
3.9
Barrick's right of last offer
If Tusker gives notice to Barrick under clause 3.8(b)(ii), Barrick will have the right, but not the obligation, at any time during the period of 5 Business Days following receipt of the notice, to make an offer to Tusker that delivers a benefit to Tusker Securityholders that is at least equal to that of the Competing Proposal (Counterproposal), and if Barrick makes a Counterproposal, Tusker and the Tusker Board must consider it in good faith. For the purposes of this clause 3.9, each successive modification of a Rival Bidder's Competing Proposal will constitute a new Competing Proposal.
4.
Break Fee
Barrick and Tusker have agreed the following arrangement in relation to the payment of the Break Fee.
4.
1 Tusker acknowledgements
Tusker acknowledges and agrees that the Barrick Group has incurred, or will incur:
(a)
significant external advisory costs and fees in planning and implementing the Bid;
(b)
internal costs of a similar kind (including directors and management time costs, risk management costs and capital costs);
(c)
out of pocket expenses incurred by employees, advisers and agents of the Barrick Group in planning and implementing the Bid;
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(d)
commitment fees and other financing costs;
(e)
reasonable opportunity costs in pursuing the Bid or in not pursuing alternative acquisitions or strategic initiatives; and
(f)
costs associated with damage to the reputation of the Barrick Group associated with a failed transaction and the implications of that damage if the Barrick Group seeks to execute alternative acquisitions in the future,
in each case, incurred by the Barrick Group directly or indirectly as a result of pursuing the Bid, and will incur further costs if the Bid is not successful (Costs).
4.2
Barrick requirement
Having regard to the matters set out in clause 4.1, Barrick required that provision be made for the payment referred to in clause 4.4, without which Barrick would not have entered into this document or otherwise agreed to implement the Bid.
4.3
Agreement on Costs
Tusker and Barrick agree that the amount of the Costs is inherently unascertainable and that, even after termination of this agreement, the Costs will not be able to be accurately ascertained. As a genuine and reasonable pre-estimate of the costs and losses that Barrick will suffer if the Bid does not proceed or is not successful, the parties agree that, for the purposes of this Clause 9, the costs will be equal to the Break Fee (it being acknowledged by the parties that the Costs may be in excess of this amount). The parties further agree that the Break Fee has been calculated to reimburse Barrick for such costs and losses.
4.4
Reimbursement of Costs
Tusker agrees to pay Barrick the Break Fee (plus any GST and without set-off or withholding) within 5 Business Days after receiving a written demand from Barrick stating the circumstances which give rise to the payment) if any of the following events occur:
(a)
any Tusker Director:
(i)
fails to recommend in any public announcement relating to the Bid that Tusker Securityholders accept the Offer, in the absence of a Superior Proposal;
(ii
) makes any public statement or takes any action that contradict his recommendation;
(iii
) qualifies his support for the Bid, or withdraws his recommendation; or
(iv) r
ecommends against the Bid,
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(b) t
he Target's Statement does not contain a statement to the effect that the Tusker Board unanimously recommends that Tusker Securityholders accept the Offer, in the absence of a Superior Proposal;
(c)
after the Announcement Date a Competing Proposal is announced or open for acceptance and within 12 months of the Announcement Date that Competing Proposal or a transaction substantially similar to that Competing Proposal:
(i)
is completed; or
(ii
) in the case of a Competing Proposal that involves a takeover bid made under Chapter 6 of the Corporations Act, becomes free from any defeating conditions as that term is defined in the Corporations Act;
(d) a
fter the Announcement Date a Competing Proposal is announced or open for acceptance, and during the Offer Period the Tusker Board unanimously recommend the Competing Proposal (whether or not in the absence of a superior proposal) and no superior proposal is subsequently announced by a member of the Barrick Group; or
(e)
Barrick terminates the Implementation Agreement due to a material breach by Tusker which is not remedied within 5 Business Days or because a Prescribed Occurrence occurs.
4.5
No payment if Bid successful
The Break Fee is not payable under clause 4.4 if 3 Business Days after the end of the Offer Period the 90% minimum acceptance Condition has been satisfied and all other Conditions have been satisfied or waived by Bidder, despite the occurrence of any event referred to in any one of the paragraphs in clause 4.4.
4.6
Notification
Tusker must as soon as practicable notify Barrick in writing if it becomes aware of the existence or occurrence of any event or circumstance specified in clause 4.4, such notice to include full particulars of the relevant event or circumstances.
4.7
Compliance with law
(a)
If it is finally determined following the exhaustion of all reasonable avenues of appeal to the Takeovers Panel or a court that all or any part of the Break Fee (Impugned Amount):
(i)
is unenforceable or would, if paid, be unlawful for any reason; or
(ii
) constitutes or would, if performed, constitute:
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A. a b
reach of the fiduciary or statutory duties of the Tusker Board; or
B.
unacceptable circumstances within the meaning of the Corporations Act or a breach an order of the Takeovers Panel,
then:
(i
ii) the requirement to pay the Break Fee does not apply to the extent of the Impugned Amount (but Tusker must comply with its obligations under this document with respect to payment of the balance of the Break Fee); and
(iv) i
f Barrick has received the Impugned Amount, it must refund it within 5 Business Days of the final determination being made.
(b) N
o party must make, nor may it cause or permit to be made, any application to a court, arbitral tribunal or the Takeovers Panel for or in relation to a determination referred to in clause 4.7(a).
(c) If any Third Party makes any application to a court, arbitral tribunal or the Takeovers Panel for or in relation to a determination referred to in clause 4.7(a), then Barrick and Tusker must make submissions in the course of those proceedings supporting to the fullest extent reasonably practicable the position that no such determination should be made.
4.8
Limit on liability
Despite anything else contained in the Implementation Agreement:
(a)
if Tusker becomes liable to pay the Break Fee under clause 4.4 and pays the Break Fee to Barrick, Tusker will have no further liability or obligations under the Implementation Agreement, and any claims or liabilities which had arisen prior to such payment will immediately lapse; and
(b)
in any other circumstances Tusker's maximum liability to Barrick for any claims or liabilities under the Implementation Agreement is equal to the amount of the Break Fee.