Exhibit 16
Conformed Execution Copy
STOCKHOLDER AGREEMENT dated as of February
9, 1998, among KINROSS GOLD CORPORATION, a corporation
organized under the laws of Ontario ("Parent"), KINROSS MERGER
CORPORATION, a Delaware corporation and a wholly owned
subsidiary of Parent ("Sub"), CYPRUS AMAX MINERALS COMPANY, a
Delaware corporation ("Cyprus") and each of the other persons
identified on Exhibit A hereto (the "Subsidiary Stockholders"
and, together with Cyprus, the "Stockholders").
The Stockholders desire that Amax Gold Inc., a Delaware corporation
(the "Company"), Parent and Sub enter into an Agreement and Plan of Merger dated
as of the date hereof (as the same may be amended from time to time, the "Merger
Agreement"), which provides, among other things, that Sub will merge with and
into the Company upon the terms and subject to the conditions set forth in the
Merger Agreement (the "Merger"). In connection with the Merger, subject to
certain exceptions, each share of Common Stock, par value $0.01 per share
("Company Common Stock"), of the Company will be converted into the right to
receive Common Shares, without nominal or par value, of Parent ("Parent Common
Shares") in the amount set forth in the Merger Agreement.
The Stockholders are executing this Agreement as an inducement to
Parent and Sub to execute and deliver the Merger Agreement.
Accordingly, in consideration of the execution and delivery by
Parent and Sub of the Merger Agreement and the mutual covenants, conditions and
agreements contained therein and herein, the parties hereto agree as follows:
SECTION 1. Representations and Warranties. Each of Cyprus
and the Subsidiary Stockholders represents and warrants to Parent and
Sub as follows:
(a) Cyprus and its wholly owned subsidiaries are the record and
beneficial owners of 67,507,655 shares of Company Common Stock (together with
any shares of Company Common Stock with respect to which the Stockholder obtains
voting power prior to the Effective Time of the Merger, the "Shares") as set
forth on Exhibit A hereto. Except for such 67,507,655 Shares and except for
shares issuable in connection with debt obligations, the Stockholders are not
the record or beneficial owner of any shares of Company Common Stock.
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(b) Such Stockholder is a corporation duly organized, validly
existing and in good standing under the laws of its state of incorporation and
is in good standing as a foreign corporation in each jurisdiction where it is
required to qualify in order to conduct its business as presently conducted,
except where the failure to be in good standing or so qualified would not have a
Material Adverse Effect on Cyprus and its subsidiaries (other than Amax Group
Members) taken as a whole.
(c) Such Stockholder has the corporate power and authority to
execute, deliver and perform this Agreement without the necessity of obtaining
any third party non-governmental consent, approval, authorization, or waiver, or
giving of any notice or otherwise, except for such consents as have been
obtained, are unconditional and are in full force and effect or as set forth on
Schedule 8.04 to the Merger Agreement.
(d) The execution, delivery and performance of this Agreement has
been duly authorized by the board of directors of such Stockholder. This
Agreement has been duly executed and delivered by such Stockholder and, assuming
due execution and delivery thereof by Parent, constitutes the legal, valid, and
binding obligation of such Stockholder enforceable against the Stockholder in
accordance with its terms except (i) as may be limited by bankruptcy,
reorganization, insolvency, and similar laws of general application relating to
or affecting the enforcement of creditors' rights or the relief of debtors and
(ii) that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought (the matters set
forth in clause (i) and (ii) being called the "Exceptions").
(e) The execution, delivery, and performance of this Agreement by
such Stockholder will not (i) constitute a violation of its Certificate of
Incorporation or By-laws, each as amended, (ii) result in the breach of or
constitute a default under any Contract which would have a Material Adverse
Effect on Cyprus and its subsidiaries (other than Amax Group Members) taken as a
whole, (iii) constitute a material violation of any Law applicable or relating
to it or its businesses or (iv) result in the creation of any Lien.
(f) Except for this Agreement, there are no voting trusts or other
agreements or understandings,
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including, without limitation, any proxies, in effect governing the voting of
the Shares.
(g) Such Stockholder does not hold, and has not issued, any proxies,
or securities convertible into or exchangeable for or any options, warrants, or
other rights to purchase or subscribe for any shares of Company Common Stock
except for this Agreement, debt obligations of the Company and obligations of
other Amax Group Members that are convertible into or exchangeable for shares of
Company Common Stock.
(h) The Shares and the certificates representing such Shares are now
and at all times during the term hereof will be held by such Stockholder, or by
a nominee or custodian for the benefit of such Stockholder, free and clear of
all Liens, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances whatsoever other than as created by this Agreement.
(i) No broker, investment banker, financial adviser or other person
is entitled to any broker's, finder's, financial adviser's or other similar fee
or commission from Parent, Sub or the Company in connection with the
transactions contemplated hereby based upon arrangements made by any of the
Stockholders.
(j) Such Stockholder is not acquiring any Parent Common Shares with
a view to, or for offer or sale in connection with, any distribution thereof
(within the meaning of the Securities Act of 1933, as amended (the "Securities
Act")) that would be in violation of the securities laws of the United States of
America or any state thereof or the securities laws of Canada or any province or
territory thereof. Such Stockholder acknowledges that it (i) has such knowledge
and experience in business and financial matters and with respect to investments
in securities to enable it to understand and evaluate the risks of an investment
in the Parent Common Shares to be acquired by it and form an investment decision
with respect thereto and is able to bear the risk of such investment for an
indefinite period of time and to afford a complete loss thereof, (ii) is an
"accredited investor" as defined in Rule 501 of Regulation D under the
Securities Act and (iii) is not a resident of Canada or any of the provinces or
territories of Canada for purposes of Canadian securities laws.
(k) Such Stockholder understands and acknowledges that Parent and
Sub are entering into the Merger Agreement
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in reliance upon such Stockholder's execution and delivery of this Agreement.
Such Stockholder acknowledges that the irrevocable proxy set forth in Section 7
is granted in consideration of the execution and delivery of the Merger
Agreement by Parent and Sub.
(l) All agreements between any Amax Group Member on the one hand and
Cyprus and its affiliates (other than Amax Group Members) on the other hand
constitute the legal, valid and binding obligations of Cyprus and any of its
affiliates (other than Amax Group Members) party thereto, subject to the
Exceptions and there are no existing material defaults by Cyprus or any of its
affiliates (other than Amax Group Members) or, to Cyprus's knowledge, by any
other party thereunder and no event, act or omission has occurred which (with or
without notice, lapse of time or the happening or occurrence of any other event)
would result in a material default thereunder.
(m) Section 2.16 of the Merger Agreement is true and correct in all
material respects.
(n) There are no undertakings, agreements, arrangements or
understandings of any nature or kind whatsoever in effect between Cyprus, or any
of its subsidiaries or affiliates (other than Amax Group Members) and any person
who has provided credit or financial accommodation to the Company or any Amax
Group Member with respect to any Scheduled Guaranties (as defined below), which
have not been fully and completely disclosed, in writing, or otherwise made
available by Cyprus to Parent.
SECTION 2. Approval Agreements. Each Stockholder agrees
with, and covenants to, Parent, Sub and the Company as follows:
(a) At any meeting of stockholders of the Company called to vote
upon the Merger, the Merger Agreement or the other transactions contemplated by
the Merger Agreement or at any adjournment thereof or in any other circumstances
upon which a vote, consent or other approval with respect to the Merger, the
Merger Agreement or the other transactions contemplated by the Merger Agreement
is sought, such Stockholder shall vote (or cause to be voted) or shall consent,
execute a consent or cause to be executed a consent in respect of the Shares in
favor of the Merger, the execution and delivery by the Company of the Merger
Agreement and the approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement.
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(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which their vote,
consent or other approval is sought, such Stockholder shall vote (or cause to
be voted) the Shares against (i) any Competing Proposal (as defined in the
Merger Agreement) or any action which is a component of any Competing Proposal
or would be a component of a Competing Proposal if it were contained in a
proposal, (ii) any merger agreement or merger (other than the Merger Agreement
and the Merger), reorganization, recapitalization, dissolution, liquidation or
winding up of or by the Company or (iii) any amendment of the Company's
Certificate of Incorporation or By-laws which amendment would in any manner
partially or wholly prevent or materially impede, interfere with or delay the
Merger, the Merger Agreement or any of the other transactions contemplated by
the Merger Agreement (each of the foregoing in clause (i), (ii) or (iii) above,
a "Competing Transaction").
(c) In furtherance and not in derogation of the foregoing, such
Stockholder agrees with, and covenants to, Parent and Sub that such Stockholder
shall use all reasonable efforts, and shall cooperate in all respects with
Parent, Sub and the Company, (i) to satisfy any legal, regulatory or other stock
exchange requirements that apply to approving the Merger, the Merger Agreement
and the other transactions contemplated by the Merger Agreement by written
consent pursuant to Section 228 of the Delaware General Corporation Law (the
"DGCL") and (ii) subject to satisfaction of the foregoing, to effect a written
consent satisfying the requirements of Section 228 of the DGCL in favor of the
adoption and approval for purposes of Section 251 of the DGCL of the Merger, the
Merger Agreement and each of the other transactions contemplated by the Merger
Agreement.
(d) It is understood that maintaining the effectiveness of the proxy
granted under Section 7 hereof shall satisfy any voting requirements set forth
in this Section 2 and that in the event such proxy is not timely voted by
consent or otherwise in accordance with Section 7, such Stockholder may vote or
consent in accordance with this Section 2.
SECTION 3. Purchase and Sale.
(a) Purchase and Sale of Parent Common Shares and Warrants. Upon the
terms and subject to the conditions of
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this Agreement, at a closing which shall occur simultaneously with the
Effective Time (the "Sale Closing"):
(i) Parent shall issue and sell to Cyprus and/or
one or more of its wholly owned direct or
indirect subsidiaries 0.2592 Parent Common
Shares for each US$1.00 of aggregate
outstanding indebtedness (whether for
principal, interest, fees or otherwise) under
the Demand Loan (as defined below) (such amount
the "Demand Loan Amount"), in consideration for
which Cyprus or such subsidiary shall assign
and transfer to Parent, and Parent shall
assume, all rights and obligations of Cyprus
under the Demand Loan, effective as of the Sale
Closing Time (as defined below). "Demand Loan"
shall mean the outstanding indebtedness
(whether for principal, interest, fees or
otherwise) owing by the Company or any other
Amax Group Member to Cyprus under the Credit
Agreement dated as of March 19, 1996, by and
between the Company and Cyprus at the Closing
Date. The "Sale Closing Time" shall be the
Effective Time.
(ii) Parent shall issue and sell to Cyprus and/or
one or more of its wholly owned direct or
indirect subsidiaries, and Cyprus or such
subsidiaries shall purchase from Parent a
number of Parent Common Shares equal to the
aggregate of 34,997,247 less the aggregate
number of Parent Common Shares issued pursuant
to Section 3(a)(i) and a warrant to purchase a
number of Parent Common Shares equal to
U.S.$35,000,000 divided by the Warrant Price
(as defined below) (the "Warrants") at a per
share price equal to 150% of the Warrant
Price. The total consideration for such Parent
Common Shares and Warrants shall be that amount
of cash as is equal to the excess of
US$135,000,000 over the Demand Loan Amount at
the Closing Date (the "Cash Consideration").
The "Warrant Price" shall mean the average
closing sales price per Parent Common Share, in
each
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case converted into U.S. Dollars at the
Noon Buying Rate for Canadian Dollars on such
day, over the 20 consecutive trading-day period
immediately ending the tenth trading day after
the Effective Time on The Toronto Stock
Exchange or, if the Parent Common Shares are
not then listed on The Toronto Stock Exchange,
on the principal stock exchange or automated
quotation system on which the Parent Common
Shares are listed or quoted, as the case may be.
(b) Warrants. The Warrants shall be represented by a certificate
and shall have the terms set forth in the form of Exhibit B attached hereto
and made a part hereof.
(c) Sale Closing. At the Sale Closing:
(i) Cyprus shall deliver or cause to be delivered to Parent
the Cash Consideration by wire transfer in immediately
available US funds as Parent may direct in a writing
delivered to Cyprus no later than two business days
prior to the Closing Date; and
(ii) Parent shall deliver to Cyprus certificates for the
Parent Common Shares and certificates for the Warrants,
in each case duly registered in the name of Cyprus or as
Cyprus may direct in a writing delivered to Parent no
later than two business days prior to the Closing Date.
(d) Representations and Warranties of Parent. Parent represents and
warrants to the Stockholders as follows:
(i) Parent is a corporation duly organized, validly
existing and in good standing under the laws of
Ontario and is in good standing as a foreign
corporation in each jurisdiction where it is
required to qualify in order to conduct its
business as presently conducted, except where
the failure to be in good standing or so
qualified would not have a Material Adverse
Effect on Parent.
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(ii) Parent has the corporate power and authority to
execute, deliver and perform this Agreement
(including the issuance and sale of the Parent
Common Shares and the Warrants) without the
necessity of obtaining any third-party
non-governmental consent, approval,
authorization, or waiver, or giving of any
notice or otherwise (including from the
shareholders of Parent other than shareholder
approval contemplated by the Merger Agreement),
except for such consents as have been obtained,
are unconditional and are in full force and
effect.
(iii) The execution, delivery and performance of this
Agreement (including the issuance and sale of the
Parent Common Shares and the Warrants) has been
duly authorized by the board of directors of Parent.
This Agreement has been duly executed and delivered
by Parent and, assuming due execution and delivery
thereof by the Stockholders, constitutes the legal,
valid, and binding obligation of Parent enforceable
against Parent in accordance with its
terms, subject to the Exceptions.
(iv) The execution, delivery, and performance of
this Agreement by Parent (including the
issuance and sale of the Parent Common Shares
and the Warrants) will not (i) constitute a
violation of its articles of incorporation or
by-laws, each as amended, (ii) result in the
breach of or constitute a default under any
Contract which would have a Material Adverse
Effect on Parent, (iii) constitute a material
violation of any Law applicable or relating to
it or its businesses or (iv) result in the
creation of any Lien.
(v) The Parent Common Shares which are being issued
to Cyprus and its designees hereunder have been
duly and validly authorized, are free of any
preemptive rights and when issued, sold and
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delivered in accordance with the terms hereof
for the consideration expressed herein, will be
fully paid and nonassessable, and based in part
on the representations of Cyprus herein, will
be validly issued in compliance with all
applicable United States or Canadian Federal,
state or provincial securities laws and Cyprus
or its designees will have good and valid title
thereto, free and clear of any Liens other than
Liens created by Cyprus or such designees.
(vi) The Warrants which are being issued to Cyprus
and its designees hereunder have been duly and
validly authorized and when issued, sold and
delivered in accordance with the terms hereof
for the consideration expressed herein, based
in part on the representations of Cyprus
herein, will be validly issued in compliance
with all applicable United States or Canadian
Federal, state or provincial securities laws
and Cyprus and its designees will have good and
valid title thereto, free and clear of any
Liens other than Liens created by Cyprus or
such designees. The Warrants will be valid and
binding obligations of Parent enforceable
against Parent in accordance with their terms,
subject to the Exceptions.
(e) Conditions to the Obligations of the Stockholders and Parent.
The obligations of the Stockholders and Parent to consummate the Sale Closing
are subject to the satisfaction of the following conditions:
(i) No temporary restraining order, preliminary
injunction, permanent injunction or other order
preventing the consummation of the purchase and
sale of the Parent Common Shares and the
Warrants pursuant to Section 3(a) hereof shall
have been issued by any federal, state or
provincial court (whether domestic or foreign)
having jurisdiction and remain in effect, and
any applicable "waiting" period or required
governmental authorization, approval or
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consent (collectively, "Governmental Consents")
shall have expired, been terminated or obtained,
as the case may be.
(ii) The Merger and the transactions contemplated by
Sections 4 and 5 hereof to have occurred on or
prior to the Effective Time shall have been
consummated or be consummated simultaneously
with the Sale Closing.
(f) Conditions to the Obligations of the Stockholders. The
obligations of the Stockholders to consummate the Sale Closing are subject to
the satisfaction of the following conditions:
(i) The Stockholders shall have received a
customary opinion from legal counsel of Parent
with respect to the validity of the Parent
Common Shares and the validity and
enforceability of the Warrants to be issued to
the Stockholders hereunder and with respect to
the matters set forth in Sections 3(d)(v) and
(vi) hereof, in form and substance reasonably
satisfactory to legal counsel of the
Stockholders.
(ii) Cyprus shall be satisfied that after giving
effect to the application of the cash proceeds
pursuant to Section 4(a) hereof, Cyprus shall
have no Liability (as defined below) in respect
of any Guaranty other than the Guaranty
relating to the Finance Agreement, dated as of
June 30, 1995, by and between Omolon Gold
Mining Company ("Kubaka"), and Overseas Private
Investment Corporation, as amended, and the
Loan Agreement, dated as of June 30, 1995, by
and between Omolon Gold Mining Company, and
European Bank for Reconstruction and
Development, as amended (collectively, the
"Kubaka Loan") and the Guaranty, dated May 22,
1997 and amended August 15, 1997, made by
Cyprus in support of a letter of credit
pursuant to the Reimbursement Agreement, dated
as
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of May 1, 1997, between Fairbanks Gold
Mining, Inc. and Union Bank of Switzerland,
relating to the Alaska Industrial Development
and Export Authority Exempt Facility Revenue
Bonds (Fairbanks Gold Mining, Inc. Project)
Series 1997, in the aggregate principal amount
of $71,000,000 and that such cash proceeds
shall be so applied.
SECTION 4. Covenants of Parent. Parent agrees with, and
covenants to, the Stockholders as follows:
(a) Parent shall use all reasonable efforts to cause Cyprus and its
Affiliates to be released and fully discharged from any and all claims,
liabilities, losses, costs, expenses and damages (collectively, "Liabilities")
in respect of any of the Guaranties (as defined below) set forth in Schedule 1
attached hereto (the "Scheduled Guaranties"). Without limiting the foregoing,
Parent shall seek to cause itself and its Affiliates to be substituted in all
respects for Cyprus and its Affiliates (other than Amax Group Members) in
respect of any and all indebtedness or other obligations of Cyprus and its
Affiliates (other than Amax Group Members) under any Scheduled Guaranties that
will remain in effect after the Closing Date and as of the Effective Time shall
apply the proceeds of the Equity Offering (as defined in the Merger Agreement)
and the Cash Consideration and an additional US$100,000,000 to repay the
Covered Obligations (as defined below) in a manner that, based on consultations
with Cyprus, is most likely to result in the maximum reduction in the face
value of the Scheduled Guaranties.
(b) Effective as of the Effective Time, Parent shall on demand
defend, indemnify and hold harmless Cyprus and its Affiliates (other than Amax
Group Members) from and against any and all Liabilities relating to, arising
out of or in connection with any guaranties, letters of credit, pledges,
hypothecations, letters of comfort, bid bonds, performance bonds and other
obligations, credit support or credit enhancement (collectively, the
"Guaranties") incurred or provided by Cyprus (or any of its Affiliates) in
respect of any indebtedness or other obligations of the Company or any other
Amax Group Member (the "Covered Obligations") or otherwise relating to, arising
out of or in connection with the Company or any other Amax Group Member,
including without limitation Liabilities relating to, arising out of or in
connection with the Scheduled Guaranties.
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(c) Parent will provide Cyprus with regular information regarding
the status of the Kubaka Loan.
(d) Parent shall not subdivide, split, combine, consolidate or
reclassify any of its outstanding shares of capital stock.
(e) As promptly as practicable after the Effective Time, Parent
shall take all action necessary to assure that none of the Company or any other
Amax Group Member shall use the name "Amax" or "Cyprus" or any derivative or
similar name or any corporate logo of any Amax Group Member or of Cyprus or any
of its Affiliates (other than Parent) without the express written consent of
Cyprus.
(f) Parent shall use all reasonable efforts to obtain all
Governmental Consents required to consummate the transactions contemplated
hereby.
(g) Parent shall use its proxy in respect of the Shares to vote all
Shares or execute a consent in respect of the Shares in the manner set forth in
Section 2 hereof.
SECTION 5. Covenants of Cyprus and the Company. Each of Cyprus and
the Company agrees as to itself with, and covenants to, each other, Parent and
Sub as follows:
(a) As of immediately prior to the Effective Time, all net
intercompany payables and loans then existing between any member of the Amax
Group, on the one hand, and Cyprus and its Affiliates, on the other hand, other
than in respect of the Demand Loan, shall be paid in full in cash.
(b) As of the Effective Time, except as set forth in Schedule 2
hereto, in consideration of the transactions contemplated by Section 3 hereof,
all intercompany arrangements, commitments, understandings, contracts and
agreements, whether or not in writing, made between one or more of the Amax
Group Members on the one hand and Cyprus or any of its Affiliates on the other
shall be terminated (including any provisions thereof which otherwise purport
by their terms to survive termination) including without limitation the Credit
Agreement (as defined in the Merger Agreement) and any tax sharing or
indemnification agreement or arrangement, and none of Cyprus or any of its
Affiliates shall have any rights or claims against any Amax Group Member
thereunder and none of the Amax Group Members or Parent or any of its
Affiliates shall have any rights or claims against any of Cyprus of any of
its Affiliates thereunder. The Parent and Cyprus shall negotiate in good
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faith to agree on mutually acceptable transitional services at mutually
acceptable terms for a period of not more than 90 days following the
Effective Date.
The foregoing provision shall not (i) release, modify or waive any
rights, remedies, security interests or credit support (including without
limitation any thereof relating to payment, indemnification, contribution,
reimbursement, setoff, recoupment or subrogation) in favor of Cyprus or any of
its Affiliates to the extent such rights, remedies security interests or credit
support are intended to protect, secure, pay or repay Cyprus or any of its
Affiliates in respect of any Liability under any Guaranty (whether or not a
Scheduled Guaranty), all of which rights, remedies, security interests and
credit support shall be maintained and preserved in all respects or (ii)
terminate any agreements made between one or more of the Amax Group Members on
the one hand and Cyprus or any of its Affiliates on the other hand in
connection with any financing arrangements entered into by any such Amax Group
Member with any third parties to the extent such termination would result in
default or event of default under the terms of any such arrangements or
otherwise result in an acceleration of any indebtedness outstanding thereunder.
Prior to the Effective Time, Cyprus and the Company shall enter
into such mutually acceptable additional agreements and instruments as may be
necessary to effect the foregoing and to provide for mutual cooperation in
connection with the change in ownership of the Company's properties, covering
matters such as mutual access, disclosure, confidentiality and similar matters.
In addition, effective as of the Effective Date, the parties will mutually
terminate the Exploration Joint Venture Agreement, dated as of January 1, 1994,
as amended, from time to time, by and among Cyprus, the Company, Cyprus
Exploration and Development Corporation and Amax Gold Exploration, Inc., and
provide for a mutually acceptable equitable allocation of the assets and
liabilities thereof, which may include a purchase of the properties and
assumption of the liabilities of such joint venture by the Company for mutually
acceptable consideration.
(c) Each of Cyprus and the Company agrees to use all reasonable
efforts (i) to effect the foregoing, including, in the case of the Company,
seeking the approval of its stockholders with respect thereto and (ii) to
cooperate in efforts to achieve modifications in the prepayment or other
provisions of the instruments or agreements in respect of Covered Obligations
necessary in
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respect of the actions to be taken pursuant to Section 4(a) hereof.
SECTION 6. Covenants of the Stockholder. Each of Cyprus and the
Subsidiary Stockholders, as applicable, agrees with, and covenants to, Parent
and Sub as follows:
(a) Such Stockholder shall not (i) other than transfers to a wholly
owned subsidiary of such Stockholder that remains a wholly owned subsidiary of
such Stockholder so long as it holds any Shares, transfer (which term shall
include, without limitation, for the purposes of this Agreement, any sale,
gift, pledge, encumbrance (other than an unforeclosed pledge or encumbrance for
financing purposes where the Stockholder retains sole voting power with respect
to all pledged securities), encumbrance or other disposition), or consent to
any transfer of, any or all the Shares or any interest therein, except pursuant
to the Merger and the Merger Agreement, (ii) enter into any contract, option or
other agreement or understanding with respect to any transfer of any or all
such Shares or any interest therein, (iii) grant any proxy, power-of-attorney
or other authorization in or with respect to such Shares, except under or in
accordance with this Agreement or (iv) deposit such Shares into a voting trust,
enter into a voting agreement or arrangement with respect to such Shares or
otherwise limit such Stockholder's power to vote its Shares.
(b) At the Effective Time, Cyprus shall provide the undertakings
contemplated by Section 4.06 of the Merger Agreement.
(c) Such Stockholder shall not, nor shall it permit any director,
officer, employee, investment banker, attorney or other adviser or
representative of the Stockholder to, directly or indirectly, (i) solicit or
initiate, or encourage the submission of, any Competing Proposal or (ii)
participate in any discussions or negotiations regarding, or furnish to any
person any non-public information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes, or may
reasonably be expected to lead to, any Competing Proposal. Without limiting the
foregoing, it is understood that any violation of the restrictions set forth in
the preceding sentence by any such director, officer, employee, investment
banker, attorney or other adviser or representative of such Stockholder shall
be deemed to be in violation of this Section 6(c) by the Stockholder.
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(d) Such Stockholder believes that the consummation of the Merger
is in the best interest of the Company. Accordingly, such Stockholder hereby
ratifies the decision by the Board of Directors of the Company to agree to
Section 4.07 of the Merger Agreement, and such Stockholder hereby confirms in
writing such ratification.
(e) Cyprus agrees to defend, indemnify and hold harmless Parent and
its subsidiaries and affiliates against one-half of the amount by which any
entity-level value-added tax (including any interest or penalties arising
therefrom) imposed upon or asserted against Kubaka with respect to taxable
periods ending on or before December 31, 1997 (each, a "Pre-1998 VAT Tax
Period") exceeds US$4,200,000; provided, however, that Cyprus shall not be
required to make aggregate payments in excess of US$6,000,000 pursuant to this
Section 6(e). Parent and the Company shall provide Cyprus with drafts of any
entity-level value-added tax return, report, declaration or certification
(each, a "VAT Tax Return") reporting, reflecting or relating to Kubaka for any
Pre-1998 VAT Tax Period at least 30 days prior to the date such VAT Tax Return
is required to be filed. Cyprus shall provide comments upon such VAT Tax
Returns within 10 days of the receipt thereof, and Parent and the Company shall
consider in good faith all reasonable comments of Cyprus relating to Kubaka.
Within 10 days of receipt of Cyprus' comments, Parent or the Company shall
provide Cyprus a detailed explanation of its reasons for rejecting any such
comments. The failure to timely provide such an explanation shall be deemed an
acceptance of such comments, and Parent and the Company shall be obligated to
incorporate such comments in the VAT Tax Return. In the event that Parent or
the Company timely provides such an explanation and Cyprus disagrees with such
explanation, the matter shall be submitted to a nationally recognized U.S.
accounting firm mutually acceptable to Cyprus, Parent and the Company, which
firm shall conclusively resolve the matter prior to the date on which such VAT
Tax Return is required to be filed. In addition, no amended VAT Tax Return
reporting, reflecting or relating to Kubaka for any Pre-1998 VAT Tax Period
shall be filed without the prior written consent of Cyprus, which consent shall
not be unreasonably withheld or delayed. To the extent permitted by the
constitutive documents of Kubaka as in effect on the date hereof, Cyprus shall
control, manage and be responsible for any audit, contest, litigation, claim,
proceeding or inquiry (each, a "VAT Proceeding") with respect to the entity-
level value-added taxes arising from or relating to Kubaka for any Pre-1998
VAT Tax Period and shall have the right to settle or compromise any such VAT
Proceeding without the consent of
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Parent or the Company; provided, however, that in the case of any settlement
or compromise resulting in the imposition of more than US$16.2 million in total
entity-level value-added taxes (including any interest or penalties arising
therefrom) on Kubaka for all Pre-1998 VAT Tax Periods, Cyprus shall not settle
or compromise such VAT Proceeding without the consent of Parent and the
Company, which consent shall not be unreasonably withheld or delayed.
(f) Such Stockholder shall use all reasonable efforts to obtain all
Governmental Consents required to consummate the transactions contemplated
hereby.
SECTION 7. Grant of Irrevocable Proxy; Appointment of Proxy. (a)
Each Stockholder hereby irrevocably grants to, and appoints, Parent and Xxxxxx
X. Xxxxxx, Chairman and Chief Executive Officer of Parent and Xxxx X. Xxxxx,
Executive Vice President of Parent, in their respective capacities as officers
of Parent, and any individual who shall hereafter succeed to any such office of
Parent, and each of them individually, such Stockholder's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of such Stockholder, to vote all Shares for which it has or shares
the power to vote, or grant a consent or approval in respect of such Shares in
any manner permitted by the DGCL, (i) in favor of the Merger, the execution and
delivery of the Merger Agreement and approval of the terms thereof and each of
the other transactions contemplated by the Merger Agreement and (ii) against
any Competing Transaction. The foregoing proxy shall terminate automatically
upon the termination of this Section under Section 12. It is understood that
such Stockholder retains its voting rights except to the extent specifically
set forth in this Section 7(a) and that such Stockholder may exercise such
voting rights in accordance with Section 2(d) hereof.
(b) Each Stockholder represents and warrants to Parent and Sub that
any proxies heretofore given in respect of the Shares are not irrevocable, and
that any such proxies are hereby revoked.
(c) Each Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 7 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance
of the duties of such Stockholder under this Agreement. Each Stockholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked. Each Stockholder hereby
17
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof. Such irrevocable proxy is executed and intended
to be irrevocable in accordance with the provisions of Section 212(e) of the
DGCL.
SECTION 8. Certain Events. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to the Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of
such Shares shall pass, whether by operation of law or otherwise, including
without limitation such Stockholder's successors. Upon any transfer of shares
of Company Common Stock by such Stockholder (without limiting in any way the
terms of Section 6(a) hereof), such Stockholder shall provide Parent with
written notice within two days of such transfer of the name, address and
relationship to such Stockholder, if any, of such transferee, the number of
shares transferred and the terms governing such transfer. In the event of any
stock split, stock dividend, merger, reorganization, recapitalization or other
change in the capital structure of the Company affecting the Company Common
Stock, or the acquisition of additional shares of Company Common Stock or other
voting securities of the Company by such Stockholder, the number of Shares set
forth in Section 1(a) hereof shall be adjusted appropriately and this Agreement
and the obligations hereunder shall attach to any additional shares of Company
Common Stock or other voting securities of the Company issued to or acquired by
such Stockholder.
SECTION 9. Stop Transfer. The Company agrees with, and covenants
to, Parent and Sub that the Company shall not register the transfer of any
certificate representing the Shares, unless such transfer is made to Parent or
Sub or otherwise in compliance with this Agreement. Each Stockholder agrees
that such Stockholder will tender to the Company, within 15 business days after
the date hereof, any and all certificates representing the Shares and the
Company will inscribe upon such certificates the following legend: "The shares
of Common Stock, par value $.01 per share, of Amax Gold Inc. represented by
this certificate are subject to a Stockholder Agreement dated as of February 9,
1998, and may not be sold or otherwise transferred, except in accordance
therewith. Copies of such Agreement may be obtained at the principal executive
offices of Amax".
SECTION 10. Stockholder Capacity. No person executing this
Agreement who is or becomes or designates or
18
has the capacity to designate during the term hereof a director of the Company
makes any agreement or understanding herein in his or her capacity as such
director or in behalf of any such designee. Each Stockholder signs solely in
such Stockholder's capacity as the record and beneficial owner of the Shares.
SECTION 11. Further Assurances. Each Stockholder shall, upon
request of Parent, execute and deliver any additional documents and take such
further actions as may reasonably be deemed by Parent to be necessary or
desirable to carry out the provisions hereof and prior to the Effective Time to
vest the power to vote the Shares as contemplated by Section 7 in Parent and
the other irrevocable proxies described therein.
SECTION 12. Termination. (a) Except for Sections 2, 4(d), 4(g),
6(a), 6(b), 6(c), 6(d), 6(f), 7, 8 and 9 which shall terminate as of the
Effective Time, all provisions of this Agreement will survive the Effective
Time in accordance with their respective terms; provided, however, that this
Agreement, and all rights and obligations of the parties hereunder, shall
terminate upon the date upon which the Merger Agreement is terminated in
accordance with its terms.
(b) The representations and warranties in Sections 1(l), 1(m) and
1(n) hereof shall terminate at the Effective Time.
SECTION 13. Defined Terms. Capitalized terms used and not otherwise
defined in this Agreement shall have the respective meanings assigned to them
in the Merger Agreement. For purposes of this Agreement, the following term
shall have the following meaning:
"Amax Group Member" shall mean and include Amax, Omolon Gold Mining
Company and Compania Minera Maricunga and any corporation, partnership,
company, joint venture and other entity in which the Company beneficially owns
or controls, directly or indirectly, more than 50% of the equity, voting
rights, profit interests, capital or other similar interest thereof.
SECTION 14. Notices. All notices, requests, claims, demands and
other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally or sent by overnight courier (providing
proof of delivery) to the parties at the following addresses (or at such other
address for a party as shall be specified
19
by like notice): (i) if to Parent, Sub or the Company, to the address set forth
in Section 11.05 of the Merger Agreement; and (ii) if to Cyprus or any of the
Subsidiary Stockholders, to Cyprus Amax Minerals Company, 0000 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000-0000; Attention of General Counsel (facsimile:
303-643-5269).
SECTION 15. Headings. The headings contained in this
Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
SECTION 16. Counterparts; Effectiveness. This Agreement may be
executed in two or more counterparts, all of which shall be considered one and
the same agreement and shall become effective when one or more counterparts
have been signed by each of Parent, Sub, the Company and the Stockholders and
delivered to Parent, Sub, the Company and the Stockholders.
SECTION 17. Entire Agreement. This Agreement (including the
documents and instruments referred to herein) constitutes the entire agreement,
and supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
SECTION 18. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware, without
regard to any applicable conflicts of law principles of such State.
SECTION 19. Successors and Assigns. Neither this Agreement nor any
of the rights, interests or obligations under this Agreement shall be assigned,
in whole or in part, by operation of law or otherwise, by any of the parties
without the prior written consent of the other parties, except as expressly
contemplated by Section 6(a); provided, however, that Sub may assign its rights
and obligations to another wholly owned subsidiary of Parent that is the
assignee of Sub's rights under the Merger Agreement. Any assignment in
violation of the foregoing shall be void.
SECTION 20. Enforcement. Each party agrees that irreparable damage
would occur and that the other party hereto would not have any adequate remedy
at law in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that each party shall be entitled to an injunction or
injunctions to prevent breaches by the other party hereto of this Agreement
20
and to enforce specifically the terms and provisions of this Agreement in any
court of the United States located in the State of Delaware or in Delaware
State court, this being in addition to any other remedy to which they are
entitled at law or in equity. In addition, each of the parties hereto (i)
consents to submit such party to the personal jurisdiction of any Federal
court located in the State of Delaware or any Delaware State court in the
event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (ii) agrees that such party will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court and (iii) agrees that such party will not bring any action relating
to this Agreement or any of the transactions contemplated hereby in any court
other than a Federal court sitting in the State of Delaware or a Delaware State
court.
SECTION 21. Severability. If any term or provision hereof, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid or unenforceable, such term or
provision shall only be invalid or unenforceable with respect to such
jurisdiction, and only to such extent, and the remainder of the terms and
provisions hereof, and the application thereof to any other circumstance, shall
remain in full force and effect, shall not in any way be affected, impaired or
invalidated, and shall be enforced to the fullest extent permitted by law, and
the parties hereto shall reasonably negotiate in good faith a substitute term
or provision that comes as close as possible to the invalidated or unenforce-
able term or provision, and that puts each party in a position as nearly
comparable as possible to the position each such party would have been in but
for the finding of invalidity or unenforceability, while remaining valid and
enforceable.
SECTION 22. Amendment; Modification; Waiver. No
amendment, modification or waiver in respect of this Agreement shall be
effective against any party unless it shall be in writing and signed by
such party.
SECTION 23. Expenses. Parent, Sub, the Stockholders and the Company
shall each bear their own legal fees and other costs and expenses with respect
to the negotiation, execution and delivery of this Agreement and consummation
of the transactions contemplated hereby.
21
IN WITNESS WHEREOF, Parent, Sub and the Stockholders have caused
this Agreement to be duly executed and delivered as of the date first written
above.
KINROSS GOLD CORPORATION,
by
/s/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Chairman and Chief
Executive Officer
KINROSS MERGER CORPORATION,
by
/s/ XXXX XXXXX
Name: Xxxx Xxxxx
Title: Director
CYPRUS AMAX MINERALS COMPANY,
by
/s/ XXXXXX X. XXXX
Name: Xxxxxx X. Xxxx
Title: Senior Vice
President
AMAX ENERGY, INC.,
by
/s/ XXXXXX X. XXXX
Name: Xxxxxx X. Xxxx
Title: Senior Vice
President
CYPRUS GOLD COMPANY,
by
/s/ XXXXXX X. XXXX
Name: Xxxxxx X. Xxxx
Title: Senior Vice
President
22
AGREED AND ACCEPTED AS TO
SECTIONS 2, 4, 5, 9 AND 23
AMAX GOLD INC.,
by
/s/ XXXXX SHELLHAUS
Name: Xxxxx Shellhaus
Title: President
