0001193125-12-330449.txt : 20120802 0001193125-12-330449.hdr.sgml : 20120802 20120802083435 ACCESSION NUMBER: 0001193125-12-330449 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20120802 DATE AS OF CHANGE: 20120802 GROUP MEMBERS: RIO TINTO EXPLORATION CANADA INC. GROUP MEMBERS: RIO TINTO INTERNATIONAL HOLDINGS LTD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ENTREE GOLD INC CENTRAL INDEX KEY: 0001271554 STANDARD INDUSTRIAL CLASSIFICATION: GOLD & SILVER ORES [1040] IRS NUMBER: 000000000 STATE OF INCORPORATION: A1 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-80330 FILM NUMBER: 121001838 BUSINESS ADDRESS: STREET 1: SUITE 1201 STREET 2: 1166 ALBERNI STREET CITY: VANCOUVER STATE: A1 ZIP: V6E 3Z3 BUSINESS PHONE: 604-687-4777 MAIL ADDRESS: STREET 1: SUITE 1201 STREET 2: 1166 ALBERNI STREET CITY: VANCOUVER STATE: A1 ZIP: V6E 3Z3 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: RIO TINTO PLC CENTRAL INDEX KEY: 0000863064 STANDARD INDUSTRIAL CLASSIFICATION: METAL MINING [1000] IRS NUMBER: 000000000 STATE OF INCORPORATION: X0 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 2 EASTBOURNE TERRACE CITY: LONDON, W2 6LG STATE: X0 ZIP: 00000 BUSINESS PHONE: 44 20 7781 1623 MAIL ADDRESS: STREET 1: RIO TINTO SERVICES INC. STREET 2: 80 STATE STREET CITY: ALBANY STATE: NY ZIP: 12207-2543 FORMER COMPANY: FORMER CONFORMED NAME: RTZ CORPORATION PLC DATE OF NAME CHANGE: 19950522 SC 13D/A 1 d389887dsc13da.htm SCHEDULE 13D AMENDMENT NO.5 Schedule 13D Amendment No.5

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934

(Amendment No. 5)*

 

 

Entrée Gold Inc.

(Name of Issuer)

 

 

Common Shares, without par value

(Title of class of securities)

29383G100

(CUSIP Number)

Ben Mathews

Rio Tinto plc

2 Eastbourne Terrace

London W2 6LG

United Kingdom

+44 (0) 20 7781 2000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

with copy to:

Thomas B. Shropshire, Jr.

Linklaters LLP

One Silk Street

London EC2Y 8HQ

United Kingdom

+44 (0) 20 7456 3223

August 2, 2012

(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ¨

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

 

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 


CUSIP No. 29383G100  

 

  1   

NAME OF REPORTING PERSON.

 

    Rio Tinto plc

  2  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions)

(a)  ¨        (b)  x (See Item 4)

 

  3  

SEC USE ONLY

 

  4  

SOURCE OF FUNDS (see instructions)

 

    WC

  5  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)    ¨

 

  6  

CITIZENSHIP OR PLACE OF ORGANIZATION

 

    England and Wales

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

     7    

SOLE VOTING POWER

 

    0

     8   

SHARED VOTING POWER

 

    30,366,129 (see Items 3 and 5)

     9   

SOLE DISPOSITIVE POWER

 

    0

   10   

SHARED DISPOSITIVE POWER

 

    30,366,129 (see Items 3 and 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON

 

    30,366,129 (see Items 3 and 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)    ¨

 

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

    23.6 per cent. (see Item 5)

14

 

TYPE OF REPORTING PERSON (see instructions)

 

    HC, CO

 


CUSIP No. 29383G100  

 

  1   

NAME OF REPORTING PERSON.

 

Rio Tinto Exploration Canada Inc.

  2  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions)

(a)  ¨        (b)  ¨ (See Item 4)

 

  3  

SEC USE ONLY

 

  4  

SOURCE OF FUNDS (see instructions)

 

    N/A

  5  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):    ¨

 

  6  

CITIZENSHIP OR PLACE OF ORGANIZATION

 

    Canada

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

     7    

SOLE VOTING POWER

 

    0

     8   

SHARED VOTING POWER

 

    0

     9   

SOLE DISPOSITIVE POWER

 

    0

   10   

SHARED DISPOSITIVE POWER

 

    0

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON

 

    0

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)    ¨

 

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

    N/A

14

 

TYPE OF REPORTING PERSON (see instructions)

 

    CO

 


CUSIP No. 29383G100  

 

  1   

NAME OF REPORTING PERSON.

 

Rio Tinto International Holdings Limited

  2  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions)

(a)  ¨        (b)  x (See Item 4)

 

  3  

SEC USE ONLY

 

  4  

SOURCE OF FUNDS (see instructions)

 

    AF

  5  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e):    ¨

 

  6  

CITIZENSHIP OR PLACE OF ORGANIZATION

 

    England and Wales

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

     7    

SOLE VOTING POWER

 

    0

     8   

SHARED VOTING POWER

 

    30,366,129 (see Items 3 and 5)

     9   

SOLE DISPOSITIVE POWER

 

    0

   10   

SHARED DISPOSITIVE POWER

 

    30,366,129 (see Items 3 and 5)

11

 

AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON

 

    30,366,129 (see Items 3 and 5)

12

 

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)    ¨

 

13

 

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

    23.6 per cent. (see Item 5)

14

 

TYPE OF REPORTING PERSON (see instructions)

 

    CO

 


Item 1. Security and Issuer.

This Amendment No. 5 to Schedule 13D amends and supplements the statement on Schedule 13D originally filed by Rio Tinto plc (“Rio Tinto”) and Rio Tinto Exploration Canada Inc., formerly Kennecott Canada Exploration Inc. (“RTEC”), on July 8, 2005, and amended on July 27, 2007, November 26, 2007, November 30, 2011 and April 20, 2012 (as amended and supplemented, the “Schedule 13D”) with the Securities and Exchange Commission (the “SEC”), relating to the common shares, without par value (the “Common Shares”), of Entrée Gold Inc., a corporation continued under the laws of British Columbia (the “Company”). The Company’s principal offices are located at Suite 1201, 1166 Alberni Street, Vancouver, British Columbia, V6E 3Z3, Canada.

This Amendment No. 5 to Schedule 13D is being filed by Rio Tinto, Rio Tinto International Holdings Limited (“RTIH”) and RTEC to reflect an intercompany transfer of Common Shares between RTEC and RTIH, both wholly owned subsidiaries of Rio Tinto, as a result of which RTEC ceased to be the beneficial owner of any Common Shares.

Item 2. Identity and Background.

Item 2 of the Schedule 13D is hereby amended and restated in its entirety as follows:

This Schedule 13D is being filed by Rio Tinto, a public limited company incorporated under the laws of England and Wales, RTEC, a company incorporated under the laws of Canada, and RTIH, a company incorporated under the laws of England and Wales.

Rio Tinto, through its group companies, has mining operations around the world. RTEC is an indirect wholly owned subsidiary of Rio Tinto and its principal business is the discovery and acquisition of mineral resources in North and Central America. RTIH is a wholly owned subsidiary of Rio Tinto and is a major investment holding company for the group. Rio Tinto and RTIH shall be collectively referred to herein as the “Reporting Persons”. As noted, RTEC has ceased to be a beneficial owner of any Common Shares. Accordingly, RTEC is no longer a reporting person for the purposes of the Schedule 13D.

The principal executive office of Rio Tinto and RTIH is located at 2 Eastbourne Terrace, London, W2 6LG, United Kingdom. The principal executive office of RTEC is located at 118 Sherbrooke Street West, Montreal, Quebec, H3A 3G2, Canada.

The name, business address, present principal occupation or employment and citizenship of each of the executive officers and directors of the Reporting Persons are set forth in Schedule A hereto and are incorporated by reference herein.

During the last five years, neither the Reporting Persons nor RTEC nor, to the best of their knowledge, any of the persons listed in Schedule A hereto has been: (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

The Reporting Persons and RTEC have entered into a Joint Filing Agreement, dated August 2, 2012, a copy of which is attached as Exhibit D, pursuant to which they have agreed to file this Schedule 13D jointly in accordance with the provisions of Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

Item 5. Interest in Securities of the Issuer.

Item 5 of the Schedule 13D is hereby amended and supplemented as follows:

On August 2, 2012, RTEC transferred to RTIH 16,566,796 Common Shares, representing approximately 12.9% of the Company’s Common Shares, which constituted all of the Company’s Common Shares owned by RTEC. As previously stated, Rio Tinto owns approximately 51% of the common shares of Ivanhoe and Ivanhoe owns 13,799,333 Common Shares, representing approximately 10.7% of the Company’s Common Shares. Following completion of the proposed Ivanhoe rights offering, assuming Rio Tinto and other holders of rights under the rights offering exercise their rights in full and the standby commitment is not utilized, Rio Tinto will beneficially own the same percentage of common shares in Ivanhoe that it is currently deemed to beneficially own. As a result, Rio Tinto could be deemed to have indirect beneficial ownership of 30,366,129 Common Shares, representing approximately 23.6% of the Company’s Common Shares. Notwithstanding the matters discussed in this Schedule 13D, the Reporting Persons disclaim "group" status with Ivanhoe in respect of the Company and any interest (beneficial or otherwise) in respect of the Company's securities.

The calculation of the percentage of the Company’s Common Shares beneficially owned by the Reporting Persons is based on 128,377,243 Common Shares outstanding as of August 2, 2012, as notified by the Company.

Each of the Reporting Persons is deemed to beneficially own the Common Shares and the percentage of outstanding Common Shares listed on the responses to Items 11 and 13, respectively, of the cover page of this Schedule 13D relating to such Reporting Person. In addition, the Common Shares deemed beneficially owned by each Reporting Person with respect to which such Reporting Person (i) has sole voting power, (ii) shares voting power, (iii) has sole dispositive power and (iv) shares dispositive power are listed in the responses to Items 7, 8, 9 and 10, respectively, of the cover page of this Schedule 13D relating to such Reporting Person.


Except as set forth in this Schedule 13D, none of the Reporting Persons, and to the knowledge of the Reporting Persons, none of the persons listed in Schedule A, beneficially owns any Common Shares of the Company.

Except as set forth in this Schedule 13D, to the knowledge of the Reporting Persons, no person other than the Reporting Persons has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, securities covered by this Schedule 13D.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Item 6 of the Schedule 13D is hereby amended and supplemented as follows:

The information set forth in Item 5 is hereby incorporated by reference in this Item 6.

On August 2, 2012, RTEC and RTIH entered into a share purchase agreement to effect the transfer from RTEC to RTIH of 16,566,796 Common Shares. The description of this agreement contained herein is qualified in its entirety be reference to Exhibit E attached hereto, which is incorporated by reference herein. On August 2, 2012, RTEC and RTIH also entered into an assignment agreement to effect the transfer from RTEC to RTIH of rights under the Equity Participation Agreement disclosed in and attached as Exhibit A to the original Schedule 13D filed with the SEC on July 8, 2005. The description of this agreement contained herein is qualified in its entirety be reference to Exhibit F attached hereto, which is incorporated by reference herein.

Item 7. Materials to be Filed as Exhibits

 

 

Exhibit
No.

  

Description

A    Equity Participation Agreement between Entrée Gold Inc. and Rio Tinto Exploration Canada Inc., formerly Kennecott Canada Exploration Inc. *
B    Subscription Agreement between Entrée Gold Inc. and Rio Tinto Exploration Canada Inc., formerly Kennecott Canada Exploration Inc. *
C    Subscription Agreement between Entrée Gold Inc. and Rio Tinto Exploration Canada Inc., formerly Kennecott Canada Exploration Inc. *
D    Joint Filing Agreement between Rio Tinto plc, Rio Tinto Exploration Canada Inc. and Rio Tinto International Holdings Limited
E    Share Purchase Agreement between Rio Tinto Exploration Canada Inc. and Rio Tinto International Holdings Limited
F    Assignment Agreement between Rio Tinto Exploration Canada Inc. and Rio Tinto International Holdings Limited

 

* Filed as an exhibit to the original Schedule 13D on July 8, 2005.


SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: August 2, 2012

 

Rio Tinto plc
By:  

/s/ Ben Mathews

  Signature
 

Ben Mathews / Company Secretary

  Name/Title
Rio Tinto Exploration Canada Inc.
By:  

/s/ Julie Parent

  Signature
 

Julie Parent / Corporate Secretary

  Name/Title
Rio Tinto International Holdings Limited
By:  

/s/ Ben Mathews

  Signature
 

Ben Mathews / Director

  Name/Title


SCHEDULE A

The response set forth in Schedule A of the Schedule 13D is hereby amended and restated in its entirety with the information below:

Rio Tinto plc

Directors and Executive Officers

 

Name

  

Present Principal Occupation

  

Business Address

  

Citizenship

Directors

        
Jan du Plessis    Chairman of Rio Tinto   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   United Kingdom
Tom Albanese    Chief Executive of Rio Tinto   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   United States of America
Guy Elliott    Finance Director of Rio Tinto   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   United Kingdom
Sam Walsh    Chief Executive of the Iron Ore Group   

120 Collins Street

Melbourne Victoria 3000

Australia

   Australia
Robert Brown    Company Director   

1188 Sherbrooke Street West

Montreal, Quebec

H3A 3G2, Canada

   Canada
Vivienne Cox    Company Director   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   United Kingdom
Mike Fitzpatrick    Company Director   

120 Collins Street

Melbourne Victoria 3000

Australia

   Australia
Ann Godbehere    Company Director   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   Canada and United Kingdom
Richard Goodmanson    Company Director   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   United States of America
Lord Kerr    Company Director   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   United Kingdom
Christopher Lynch    Company Director   

120 Collins Street

Melbourne Victoria 3000

Australia

   Australia
Paul Tellier    Company Director   

1188 Sherbrooke Street West,

Montreal, Quebec

H3A 3G2, Canada

   Canada
John Varley    Company Director   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   United Kingdom
Executive Officers         
Hugo Bagué    Group Executive, People and Organisation   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   Belgium


Name

  

Present Principal Occupation

  

Business Address

  

Citizenship

Preston Chiaro    Group Executive, Technology & Innovation   

4700 Daybreak Parkway

South Jordan, Utah 84095

United States

   United States of America
Bret Clayton    Group Executive, Business Support and Operations   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   United States of America
Jacynthe Côté    Chief Executive of Rio Tinto Alcan   

1188 Sherbrooke Street West

Montreal, Quebec

H3A 3G2, Canada

   Canada
Andrew Harding    Chief Executive of Rio Tinto Copper   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   Australia
Harry Kenyon-Slaney    Chief Executive of Rio Tinto Diamonds & Minerals   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   United Kingdom
Doug Ritchie    Chief Executive of Rio Tinto Energy   

3 West Tower

410 Ann Street

Brisbane, QLD 4000

Australia

   Australia
Debra Valentine    Group Executive, Legal and External Affairs   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   United States of America

 

Rio Tinto International Holdings Limited

Directors and Executive Officers

 

Name

  

Present Principal Occupation

  

Business Address

  

Citizenship

Directors         
Dan Larsen    Director   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   United States of America
Janine Juggins    Director   

2 Eastbourne Terrace

London W2 6LG

United Kingdon

   United Kingdom
Ulf Quellmann    Director   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   Germany
Ben Mathews    Director   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   United Kingdom
Executive Officers         
Gemma Aldridge    Secretary   

2 Eastbourne Terrace

London W2 6LG

United Kingdom

   United Kingdom


EXHIBIT INDEX

 

Exhibit
No.

  

Description

A    Equity Participation Agreement between Entrée Gold Inc. and Rio Tinto Exploration Canada Inc., formerly Kennecott Canada Exploration Inc.*
B    Subscription Agreement between Entrée Gold Inc. and Rio Tinto Exploration Canada Inc., formerly Kennecott Canada Exploration Inc.*
C    Subscription Agreement between Entrée Gold Inc. and Rio Tinto Exploration Canada Inc., formerly Kennecott Canada Exploration Inc.*
D    Joint Filing Agreement between Rio Tinto plc, Rio Tinto Exploration Canada Inc. and Rio Tinto International Holdings Limited
E    Share Purchase Agreement between Rio Tinto Exploration Canada Inc. and Rio Tinto International Holdings Limited
F    Assignment Agreement between Rio Tinto Exploration Canada Inc. and Rio Tinto International Holdings Limited

 

* Filed as an exhibit to the original Schedule 13D on July 8, 2005.
EX-99.(D) 2 d389887dex99d.htm JOINT FILING AGREEMENT Joint Filing Agreement

EXHIBIT D

JOINT FILING AGREEMENT

Pursuant to Rule 13d-1(k)(i) promulgated under the Securities Exchange Act of 1934, the undersigned hereby agree to the joint filing of this Statement on Schedule 13D on behalf of each of them, including any amendments thereto.

This Joint Filing Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

 

Rio Tinto plc

/s/ Ben Mathews

Name: Ben Mathews
Title: Company Secretary
Rio Tinto Exploration Canada Inc.

/s/ Julie Parent

Name: Julie Parent
Title: Corporate Secretary
Rio Tinto International Holdings Limited

/s/ Ben Mathews

Name: Ben Mathews
Title: Director
EX-99.(E) 3 d389887dex99e.htm SHARE PURCHASE AGREEMENT Share Purchase Agreement

EXHIBIT E

Share Purchase Agreement

EXECUTION VERSION

DATED 2 August 2012

RIO TINTO EXPLORATION CANADA INC.

and

RIO TINTO INTERNATIONAL HOLDINGS LIMITED

 

 

SHARE PURCHASE AGREEMENT

for the sale and purchase of shares

in Entrée Gold Inc.

 

 

 

Rio Tinto

London Legal Department

2 Eastbourne Terrace

London W2 6LG

UK

Tel: +44 20 7781 2000


EXECUTION VERSION

 

DATE: 2 August 2012

PARTIES:

 

(1) RIO TINTO EXPLORATION CANADA INC., a company incorporated under the laws of Canada with company number 329940-6 (being previously known as Kennecott Canada Exploration Inc.) and having its registered office at 1188 Sherbrooke Street West, Montreal, Québec H3A 3G2, Canada (“RTEC”); and

 

(2) RIO TINTO INTERNATIONAL HOLDINGS LIMITED a company incorporated under the laws of England with registered number 425864 and having its registered office at 2 Eastbourne Terrace, London W2 6LG, United Kingdom (“RTIH”).

RECITALS:

 

(A) RTEC is the legal and beneficial owner of 16,566,796 common shares each in the capital of Entrée Gold, being approximately 12.9% of the issued share capital;

 

(B) RTEC desires to sell to RTIH the shares referred to in Recital A, and RTIH desires to purchase and acquire the same from RTEC, upon the terms and conditions as set forth in this Agreement; and

 

(C) RTEC and RTIH are both part of the Rio Tinto group, which means Rio Tinto plc (incorporated in England), Rio Tinto Limited (incorporated in Victoria, Australia) and any other corporation, partnership or joint venture (whether incorporated or not) wherever situated in which Rio Tinto plc and/or Rio Tinto Limited owns or controls (i) directly or indirectly more than 50% of the shares or stock carrying the right to vote at a general meeting (or its equivalent) of the corporation or (ii) which members of the Rio Tinto group hold a controlling interest as part of a partnership or joint venture.

TERMS AGREED:

 

1. DEFINITIONS AND INTERPRETATION

 

1.1 In this Agreement where the context so admits the following words and expressions shall have the following meanings:

Assignment Agreement” shall mean the assignment agreement between RTEC and RTIH referred to in Clause 3.1(b) of this Agreement;

Business Days” shall mean a day on which banks are generally open in London and in Vancouver, British Columbia for the transaction of normal banking business;

Completion” shall mean the completion of the sale and purchase of the Shares under this Agreement;

Conditions Precedent” shall mean the conditions specified in Clause 3.1 of this Agreement;

Encumbrance” shall mean any mortgage, charge, pledge, lien, restriction, assignment, hypothecation, security interest, title retention or any other agreement or arrangement the effect of which is the creation of security, or any other interest, equity or other right of any person (including any right to acquire, option, right of first refusal or right of pre-emption), or any agreement or arrangement to create any of the same;

Entrée Gold” shall mean Entrée Gold Inc., a public company incorporated in Canada with company number CO725704 and with registered address Suite 1201-1166 Alberni Street, Vancouver, BC Canada V6E 3Z3;

 

1


EXECUTION VERSION

 

Equity Participation Agreement” shall mean the equity participation agreement entered into between Entrée Gold and RTEC (formerly known as Kennecott Canada Exploration Inc.) on 17 June 2005;

Purchase Price” shall have the meaning attributed to it in Clause 2.2 of this Agreement;

Rio Tinto Group” means the group of entities described in Recital C hereto;

Shares” shall mean the 16,566,796 common shares (with no par value) of Entrée Gold legally and beneficially owned by RTEC which will transfer to RTIH in accordance with the terms of this Agreement;

Warranties” means the warranties and representations set out in the Schedule to this Agreement.

 

1.2 The headings in this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.

 

2. SALE AND PURCHASE OF THE SHARES

 

2.1 RTEC shall, as legal and beneficial owner, sell and RTIH shall purchase the Shares free from all Encumbrances, together with all rights which at the date of this Agreement are or at any time hereafter may become attached to them.

 

2.2 RTIH shall purchase the Shares from RTEC for an aggregate purchase price of CAD 9,277,405.76 (the “Purchase Price”).

 

2.3 The parties hereto confirm that the Purchase Price represents the fair market value of the Shares established by RTEC and RTIH acting in good faith, as was their intention to do so. However, the parties agree that in the event that the relevant tax authorities determine that the fair market value of the Shares is different to the Purchase Price as stipulated herein or if the Purchase Price is determined by adjudication of a competent court, the parties agree to adjust the Purchase Price in accordance with such determination.

 

2.4 RTIH shall satisfy the Purchase Price by procuring an inter-company payable in favour of RTEC in a form and substance satisfactory to RTEC in its sole discretion.

 

3. CONDITIONS PRECEDENT

 

3.1 Completion of the sale and purchase of the Shares shall be conditional upon the following:

 

  (a) Receipt by RTIH of written consent of Entrée Gold to the assignment of RTEC’s rights and obligations under the Equity Participation Agreement to RTIH;

 

  (b) Execution by each of RTEC and RTIH of an “Assignment Agreement” by which RTEC’s rights and obligations under the Equity Participation Agreement shall be assigned to RTIH; and

 

  (c) Any and all other material consents, approvals and authorisations of and filings with and notification of governmental authorities and regulatory agencies which in each case are necessary for the acquisition by RTIH of the Shares having been obtained or effected and all applicable waiting periods, if any, under any applicable law, statute, regulation or rule having expired or terminated (as the case may be).

 

3.2 RTIH shall be entitled in its absolute discretion, by written notice to RTEC, to waive any or all of the Conditions Precedent referred to in Clause 3.1 of this Agreement, either in whole or in part.

 

2


EXECUTION VERSION

 

4. COMPLETION

 

4.1 The sale and purchase of the Shares shall be completed within ten (10) Business Days of the fulfilment of each of the Conditions Precedent or such other date as RTEC and RTIH may agree.

 

4.2 On Completion, RTEC shall provide to RTIH:

 

  (a) the relevant original share certificates representing those Shares which exist in certificated form duly endorsed in favour of RTIH and guaranteed by a Canadian chartered bank; and

 

  (b) all such other documents, including such waivers or consents, as RTIH may require to enable RTIH to be registered as holders of the Shares.

 

4.3 On Completion, RTIH shall cause the Purchase Price to be paid to RTEC, provided that the parties agree that the obligation of RTIH under this Clause 4.3 shall be satisfied in full by the procurement of an intercompany payable in favour of RTEC and RTIH shall not be concerned to see that Purchase Price funds are applied in payment to RTEC.

 

5. TRANSFER OF OWNERSHIP AND FURTHER ASSURANCES

 

5.1 On Completion, RTIH shall be the beneficial and economic owner of the Shares and in relation to any Shares the legal title to which has not been transferred on Completion, RTEC shall hold all such Shares as nominee for the benefit of RTIH until legal title has been formally transferred.

 

5.2 RTEC agrees (at its own cost) to perform (or procure the performance of) all further acts and things, and execute and deliver (or procure the execution and delivery of) such further documents, as may be required by law or as RTIH may reasonably require, whether on or after Completion, to implement and/or give effect to this Agreement and the transactions contemplated in this Agreement and for the purpose of vesting in RTIH the full legal and beneficial ownership of the Shares. Without limitation to the foregoing, RTEC shall assist RTIH in procuring the transfer of all those Shares held in uncertificated form in the account of Kennecott Canada Exploration Inc. held with Canaccord to a new account to be established with Canaccord by RTIH.

 

5.3 To the extent that the transfer of registered ownership of the Shares to RTIH is not perfected on Completion or would be contrary to applicable law, the parties will use their best efforts to provide to, or cause to be provided to, RTIH, to the extent permitted by law, the rights and benefits associated with the registered ownership of the Shares and take such other actions as may reasonably be requested by RTIH in order to place RTIH, insofar as reasonably possible, in the same position as if RTIH were the registered shareholder of the Shares on Completion.

 

5.4 RTEC will promptly deliver dividends to RTIH when dividends have been received by RTEC after Completion and RTEC will account to RTIH for all other benefits with respect to the Shares which may be received by RTEC after Completion.

 

5.5 RTIH will pay, perform and discharge on behalf of RTEC all of RTEC’s obligations with respect to the Shares, in each case accruing on or after Completion. In the event that RTEC holds Shares for RTIH as nominee, RTIH irrevocably and unconditionally undertakes with RTEC to indemnify RTEC immediately on demand against any and all liabilities, losses, penalties, fines, damages, claims, costs, expenses and legal and professional fees and disbursements incurred, suffered or sustained by RTEC or asserted against RTEC in connection with RTEC holding the Shares as nominee for RTIH.

 

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EXECUTION VERSION

 

6. WARRANTIES

 

6.1 RTEC warrants to RTIH in the terms of the Warranties and acknowledges that RTIH has entered into this Agreement in reliance upon the Warranties.

 

6.2 Each of the Warranties shall be construed as a separate Warranty and (save as expressly provided to the contrary) shall not be limited or restricted by reference to or inference from the terms of any other Warranty or any other term of this Agreement.

 

6.3 The rights and remedies of RTIH in respect of the Warranties shall not, unless this Agreement expressly provides otherwise, be affected by: (a) Completion; or (b) the termination of this Agreement by RTIH (or any failure by RTIH to so terminate or rescind).

 

6.4 RTEC undertakes to notify RTIH in writing promptly if it becomes aware before Completion of any breach of any Warranty or any circumstance arising after the date of this Agreement which constitutes a breach of any Warranty and to make such investigation as RTIH may reasonably require and to report the results to RTIH prior to Completion.

 

6.5 RTIH hereby acknowledges that it does not enter into this Agreement in reliance on any representations, warranties or undertakings howsoever or to whomsoever made except in so far as such are embodied in the Warranties and the undertakings contained in this Agreement.

 

6.6 Any amount paid by RTEC to RTIH for beach of any of the Warranties or any other term of this Agreement shall be treated as a reduction in the consideration payable for the Shares.

 

7. LIMITATION OF LIABILITY

Except in the case of fraud, RTEC shall not be liable under this Agreement, or otherwise in connection with it, in respect of any claim to the extent that the aggregate amount of liability for all claims made under this Agreement, or otherwise in connection with it, would exceed the Purchase Price.

 

8. REMEDIES

So far as permitted by law and except in the case of fraud, each party agrees and acknowledges that its only right and remedy in relation to any representation, warranty or undertaking made or given in connection with this Agreement shall be for breach of the terms of this Agreement to the exclusion of all other rights and remedies (including those in tort or arising under statute).

 

9. INVALIDITY

If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable in any respect under the law of any jurisdiction, then such provision shall (so far as it is invalid and unenforceable and within such jurisdiction only) be given no effect and shall be deemed not to be included in this Agreement but without invalidating any of the remaining provisions of this Agreement. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

 

10. BENEFICIAL INTEREST

The beneficial interest in the Shares shall not pass to RTIH until Completion.

 

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EXECUTION VERSION

 

11. GENERAL

 

11.1 Neither party shall assign or transfer its rights or obligations under this Agreement except with the prior written approval of the other party provided, however, that each party may assign or transfer its rights or obligations under this Agreement to any member of the Rio Tinto Group.

 

11.2 The parties do not intend that any term of this Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement.

 

11.3 This Agreement and the Assignment Agreement, together constitutes the whole agreement between the parties to this Agreement in relation to its subject matter.

 

11.4 This Agreement may be executed in one or more counterparts, and by the parties on separate counterparts, but shall not be effective until each party has executed at least one counterpart and each such counterpart shall constitute an original of this Agreement but all the counterparts shall together constitute one and the same instrument.

 

11.5 No variation (or waiver of any provision or condition of this Agreement) shall be effective unless it is in writing and signed by or on behalf of each of the parties to this Agreement (or, in the case of a waiver, by or on behalf of the party waiving compliance).

 

11.6 The construction, validity and performance of this Agreement and all non-contractual obligations arising from or connected with this Agreement shall be governed by the laws of England.

 

11.7 Each party to this Agreement irrevocably agrees to submit to the exclusive jurisdiction of the courts of England in respect of any claim, matter or dispute arising under or in connection with this Agreement and that accordingly any proceedings in respect of any such claim, matter or dispute may be brought in such court.

 

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EXECUTION VERSION

 

SCHEDULE

Warranties

 

1. RTEC has full power and authority to enter into and perform this Agreement and this Agreement will constitute binding obligations on RTEC in accordance with its terms, save as enforcement may be limited by bankruptcy, reorganisation, insolvency, moratorium or other laws affecting the enforcement of creditors’ rights generally and subject to any limitation acts and to general equitable principles.

 

2. The execution and delivery of and performance by RTEC of its obligations under this Agreement will not:

 

  (a) result in a breach of any provision of the memorandum or articles of association of RTEC; or

 

  (b) result in a material breach of any order, judgment or decree of any court or governmental agency or regulatory body to which RTEC is a party or by which it is bound.

 

3. RTEC is entitled to sell and transfer to RTIH the full legal and beneficial ownership of the Shares on the terms of this Agreement without the consent of any third party.

 

4. The Shares are free from all Encumbrances.

 

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EXECUTION VERSION

 

IN WITNESS WHEREOF, the parties hereto have entered into this Agreement effective as of 2 August 2012.

 

SIGNED by Julie Parent

 

duly authorised for and on behalf

of RIO TINTO EXPLORATION CANADA INC.

 

SIGNED by Ben Mathews

 

duly authorised for and on behalf

of RIO TINTO INTERNATIONAL HOLDINGS LIMITED

 

7

EX-99.(F) 4 d389887dex99f.htm ASSIGNMENT AGREEMENT Assignment Agreement

EXHIBIT F

Assignment Agreement

EXECUTION VERSION

 

DATED 2 August 2012

 

RIO TINTO EXPLORATION CANADA INC.

and

RIO TINTO INTERNATIONAL HOLDINGS LIMITED

 

 

ASSIGNMENT AGREEMENT

for the transfer of rights under an Equity

Participation Agreement between RTEC and Entrée

Gold Inc. dated 17 June 2005

 

 

 

 

 

Rio Tinto

London Legal Department

2 Eastbourne Terrace

London W2 6LG

UK

Tel: +44 20 7781 2000


EXECUTION VERSION

 

DATE: 2 August 2012

PARTIES:

 

(1) RIO TINTO EXPLORATION CANADA INC., a company incorporated under the laws of Canada with company number 329940-6 (being previously known as Kennecott Canada Exploration Inc.) and having its registered office at 1188 Sherbrooke Street West, Montreal, Québec H3A 3G2, Canada (the “Assignor”); and

 

(2) RIO TINTO INTERNATIONAL HOLDINGS LIMITED a company incorporated under the laws of England with registered number 425864 and having its registered office at 2 Eastbourne Terrace, London W2 6LG, United Kingdom (the “Assignee”).

RECITALS:

 

(A) Pursuant to a share purchase agreement dated on or around the date of this Agreement, the Assignor has agreed to sell and the Assignee has agreed to purchase the Assignor’s entire shareholding in Entrée Gold Inc. (the “SPA”).

 

(B) In addition to the transfer of shares under the SPA, the Assignor wishes to transfer its rights and obligations under an equity participation agreement entered into between the Assignor and Entrée Gold Inc. on 17 June 2005 (the “Equity Participation Agreement”) in accordance with the terms set out in this Agreement.

 

(C) Pursuant to Clause 8.8 of the Equity Participation Agreement, a party may not assign its rights or obligations under the Equity Participation Agreement without the prior written consent of the other party. The Assignor received written consent from Entrée Gold Inc. on 19 July 2012 for the assignment to the Assignee as the same is to be given effect to by the terms of this Agreement.

IT IS AGREED as follows:

 

1. INTERPRETATION

 

1.1 Recitals, schedules, etc

References to this Agreement include the recitals which form part of this Agreement for all purposes. References in this Agreement to the parties, recitals and clauses are references respectively to the parties and their legal personal representatives, successors and permitted assigns, the recitals and clauses of this Agreement.

 

1.2 Meaning of references

Save where specifically required or indicated otherwise:

 

  (a) words importing one gender shall be treated as importing any gender, words importing individuals shall be treated as importing corporations and vice versa, words importing the singular shall be treated as importing the plural and vice versa, and words importing the whole shall be treated as including a reference to any part thereof;

 

  (b) references to a person shall include any individual, firm, body corporate, unincorporated association, government, state or agency of state, association, joint venture or partnership, in each case whether or not having a separate legal personality. References to a company shall be construed so as to include any company, corporation or other body corporate wherever and however incorporated or established;

 

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EXECUTION VERSION

 

  (c) terms used in this Agreement shall have the meanings attributed to them in the Equity Participation Agreement, unless otherwise defined in this Agreement;

 

  (d) the term “Business Day” means a day (excluding Saturday and Sunday) on which banks generally are open in the City of London for the transaction of normal banking business; and

 

  (e) the term “Transfer” means the completion of the transfer of the Assignor’s entire shareholding in Entrée Gold Inc. in accordance with the terms of the SPA.

 

1.3 Headings

Clause and paragraph headings are inserted for ease of reference only and shall not affect construction.

 

2. ASSIGNMENT OF AGREEMENT

 

2.1 In consideration of the Assignee’s undertaking and indemnity given in Clause 3 hereof, with effect from the Transfer the Assignor hereby unconditionally, irrevocably and absolutely assigns and transfers to the Assignee all the Assignor’s right, title, benefit and interest to, in and under the Equity Participation Agreement to hold the same unto the Assignee absolutely, free and clear of all mortgages, charges, pledges, liens, trusts, claims and other interests.

 

2.2 The Assignee agrees that it shall accept the assignment referred to in Clause 2.1.

 

3. UNDERTAKING AND INDEMNITY

 

3.1 In consideration of the assignment by the Assignor given in Clause 2.1 hereof, the Assignee hereby undertakes, with effect from the Transfer, to perform and discharge any obligation on the part of the Assignor under the Equity Participation Agreement.

 

3.2 With effect from the Transfer, the Assignee hereby undertakes fully to indemnify the Assignor and keep the Assignor fully indemnified at all times against any liability, loss, cost, damage or expense suffered, sustained or incurred by the Assignor as a result of any act or omission of the Assignee giving rise to or contributing to any breach or frustration of the Equity Participation Agreement or any claim or demand in respect of the subject matter of the Equity Participation Agreement arising on or after the Transfer.

 

4. FURTHER ASSURANCE

Each party hereto agrees (at its own cost) to perform (or procure the performance of) all further acts and things, and execute and deliver (or procure the execution and delivery of) such further documents, as may be required by law or as the other party may reasonably require to implement and/or give effect to this Agreement and the assignment contemplated by this Agreement.

 

5. ENTIRE AGREEMENT

This Agreement represents the whole and only agreement between the parties in relation to its subject matter and supersedes any previous agreement (whether written or oral) between the parties in relation to its subject matter; save that nothing in this Agreement shall exclude any liability for, or remedy in respect of, fraudulent misrepresentation.

 

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EXECUTION VERSION

 

6. THIRD PARTY RIGHTS

The parties do not intend that any term of this Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement.

 

7. VARIATION

No variation or waiver of any provision of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the parties (or, in the case of a waiver, by or on behalf of the party waiving compliance).

 

8. SEVERABILITY

If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable in any respect under the law of any jurisdiction, then such provision shall (so far as it is invalid or unenforceable and within such jurisdiction only) be given no effect and shall be deemed not to be included in this Agreement but without invalidating any of the remaining provisions of this Agreement. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

 

9. COUNTERPARTS

This Agreement may be executed in any number of counterparts and by the parties to it on separate counterparts and each such counterpart shall constitute an original of this Agreement but all of which together constitute one and the same instrument. This Agreement shall not be effective until each party has executed at least one counterpart.

 

10. GOVERNING LAW AND SUBMISSION TO JURISDICTION

 

10.1 Governing law

The construction, validity and performance of this Agreement and all non-contractual obligations (if any) arising from or connected with this Agreement shall be governed by the laws of the Province of British Columbia and the laws of Canada applicable therein.

 

10.2 Submission to jurisdiction

The parties to this Agreement irrevocably agree that the courts of [British Columbia / Canada] shall have exclusive jurisdiction over any claim or matter arising under or in connection with this Agreement (including any non-contractual claim) and that accordingly any proceedings in respect of any such claim or matter may be brought in such court.

IN WITNESS WHEREOF, the parties hereto have entered into this Agreement effective as of the day and year first above written.

 

3


EXECUTION VERSION

 

SIGNED by Julie Parent

 

duly authorised for and on behalf

of RIO TINTO EXPLORATION CANADA INC.

 

SIGNED by Ben Mathews

 

duly authorised for and on behalf

of RIO TINTO INTERNATIONAL HOLDINGS LIMITED

 

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