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EXHIBIT 2.2
APPENDIX A-1
AMENDMENT No. 1 to
MERGER AGREEMENT
THIS AGREEMENT dated April 20, 1998 is made
AMONG: KINROSS GOLD CORPORATION, an Ontario
corporation ("Kinross");
OF THE FIRST PART
- and -
KINROSS MERGER CORPORATION, a
Delaware corporation and a
wholly-owned subsidiary of Kinross
("Merger Corp.");
OF THE SECOND PART
- and -
AMAX GOLD INC., a Delaware
corporation ("Amax");
OF THE THIRD PART
WHEREAS, Kinross, Merger Corp. and Amax are parties to a Merger
Agreement dated February 9, 1998 (the "Merger Agreement");
WHEREAS, Kinross, Merger Corp. and Amax have agreed to amend the
Merger Agreement as set forth herein;
WHEREAS, the Significant Shareholder has consented to the amendment of the
Merger Agreement, as contemplated hereby as required by Section 11.10 of the
Merger Agreement;
NOW, THEREFORE, in consideration of the mutual benefits to be derived and
the representations and warranties, conditions and promises herein contained,
and intending to be legally bound hereby, the parties agree as follows:
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ARTICLE I
GENERAL
SECTION 1.01 DEFINED TERMS.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to such terms in the Merger Agreement.
SECTION 1.02 GOVERNING LAW.
(a)This Agreement shall be governed by and construed in accordance with
the Laws of the State of Delaware (other than the choice of law
principles thereof).
(b)Any action , suit, or other proceeding initiated by Amax, Kinross, or
Merger Corp. against the other under or in connection with this
Agreement may be brought in any federal or state court in the State of
Delaware, as the Party bringing such action, suit, or proceeding shall
elect, having jurisdiction over the subject matter thereof. Amax,
Kinross, and Merger Corp. hereby submit themselves to the jurisdiction
of any such court for the purpose of any such action and agree that
service of process on them in any such action, suit, or proceeding may
be effected by the means by which notices are to be given to it under
the Merger Agreement.
ARTICLE II
AMENDMENTS
Section 2.01 Amendments.
The Merger Agreement is amended as follows:
(a) by deleting Section 1.14 in its entirety and substituting the
following therefor:
"The Board of Directors of Kinross shall make, or if such approval is
required, at the Kinross Shareholders' Meeting shall submit for
approval of the holders of Kinross Shares, amendments to Kinross'
Articles of Incorporation or By-laws to provide that immediately
following such meeting the Kinross Board of Directors shall consist
of: (i) four (4) directors ("Class I Directors") who shall have terms
of three years; (ii) four (4) directors ("Class II Directors") who
shall have an initial term of two years and subsequent terms of three
years; and (iii) four (4) directors ("Class III Directors") who shall
have an initial term of one year and subsequent terms of three years.
Kinross shall take all action to cause the Board
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of Directors of Kinross as of the Effective Time to be comprised of
twelve (12) directors, six (6) of whom shall be nominees of Kinross,
who are currently members of the Board of Directors of Kinross, four
(4) of whom shall be nominees of the Significant Shareholder and two
(2) of whom shall be nominees of Amax. Of such nominees, at least
three (3) of the Kinross nominees and one (1) nominee of the
Significant Shareholder shall be Class I Directors; at least one
(1) Kinross nominee, two (2) nominees of the Significant Shareholder
and one (1) nominee of Amax shall be Class II Directors; and at least
two (2) nominees of Kinross, one (1) nominee of the Significant
Shareholder and one (1) nominee of Amax shall be Class III Directors.
The Chairman and Chief Executive Officer and the Vice Chairman of
Kinross as of the Effective Time shall be as set forth in Section
1.14 of each of the Amax and Kinross Disclosure Letters. Obtaining the
Board structure set forth in the first sentence of this Section 1.14
or the designations set forth in the third sentence of this Section
1.14 shall not be a condition to consummation of the Merger.";
(b) by deleting Section 3.20 in its entirety and replacing it with the
following: "The Board of Directors of Kinross has received an opinion
from Xxxxxxx Xxxxx as to the matters set forth therein.";
(c) by deleting Subsections 4.02(q) and 5.02(q) in their entirety and
renumbering the existing Subsections 4.02(r) and 5.02(r) as 4.02(q)
and 5.02(q), respectively; and
(d) by inserting, immediately after the phrase "Section 5.02(j)" in
Subsection 5.02(g) the phrase "113,140 Kinross Shares issued pursuant
to the Kinross Employee Share Purchase Plan".
ARTICLE III
GENERAL
SECTION 3.01 MERGER AGREEMENT.
Except as expressly amended or modified herein, the Merger Agreement (as
amended hereby) shall continue in full force and effect in accordance with the
provisions hereof and thereof as in existence on the date hereof. After the date
hereof, any reference to the Merger Agreement shall mean the Merger Agreement as
amended by this Agreement.
SECTION 3.02 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which will be an original as regards any party whose signature appears thereon
and all of which together will constitute one and the same instrument. This
Agreement will become binding when one
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or more counterparts hereof, individually or taken together, will bear the
signatures of all the parties reflected hereon as signatories.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the day and year first written above.
KINROSS GOLD CORPORATION
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Corporate Secretary
KINROSS MERGER CORPORATION
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Executive Vice President
AMAX GOLD INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Chief Financial
Officer
The undersigned hereby consents to the amendment of the Merger Agreement
set forth above.
CYPRUS AMAX MINERALS COMPANY
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
