EXHIBIT 99.2
STOCKHOLDER AND VOTING AGREEMENT
THIS STOCKHOLDER AND VOTING AGREEMENT (this "Agreement"), dated as of
November 20, 2003, is made and entered into among Kinross Gold Corporation, a
corporation organized in the Province of Ontario ("Kinross"), and Zoloto
Investors, LP, a Delaware limited partnership, Solitario Resources Corporation,
a Colorado corporation, Xxxxxxxxxxx X. Herald, Xxxx X. Xxxxx, III, Xxxxx
Xxxxxxx, Xxxxx X. Xxxxxxxx, and Xxxxxx X. Xxxxxxx (collectively, the
"Stockholders").
RECITALS
A. Kinross and Crown Resources Corporation, a Washington corporation
("Crown"), have entered into a Letter of Intent dated as of October 7, 2003 (the
"Transaction Agreement"), pursuant to which and subject to the conditions set
forth in the Transaction Agreement, Kinross will acquire the business and assets
of Crown, other than Crown's interest in Solitario Resources Corporation. Except
as otherwise defined herein, terms used herein with initial capital letters have
the respective meanings ascribed thereto in the Transaction Agreement.
B. As of the date hereof, the Stockholders beneficially own and are
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) that number of shares of common stock, par value $0.001
per share, of Crown (the "Shares"), and options, warrants, convertible notes, or
other rights to convert into or acquire additional Shares, all set forth on
Exhibit "A" attached hereto and incorporated herein by this reference. The
Shares owned by the Stockholders, including the Shares of Crown subject to
rights held by the Stockholders, together with any other Shares of Crown the
beneficial ownership of which is acquired by the Stockholders, subsequent to the
date of this Agreement, are collectively referred to herein as "Subject Shares."
C. As a condition and inducement to Kinross' willingness to enter
into a Definitive Agreement with respect to the proposed transaction, Crown has
requested that the Stockholders agree, and the Stockholders have agreed, to
enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants, and agreements contained in this
Agreement and the Transaction Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
VOTING AGREEMENT
1.1 AGREEMENT TO VOTE SUBJECT SHARES. From the date hereof through the
earlier of: (a) the closing of the Merger (as defined in the Transaction
Agreement); (b) the termination of the Transaction Agreement in accordance with
its terms; or (c) the termination of any Definitive Agreement in accordance with
its terms (the "Pre-Closing Period"), at any meeting of the stockholders of
Company called to consider and vote upon the adoption and approval of the Merger
contemplated by the Transaction Agreement (and at any and all postponements and
adjournments thereof), and in connection with any action to be taken in respect
of the adoption and approval of the Transaction Agreement by written consent of
stockholders of Company, the Stockholders shall vote or cause to be voted
(including by written consent, if applicable) all of the Subject Shares, whether
heretofore owned or hereinafter acquired, in favor of the adoption and approval
of the Merger and in favor of any other matter necessary for the consummation of
the transactions contemplated by the Transaction Agreement (collectively, the
"Transaction"), and
considered and voted upon at any such meeting or made the subject of any such
written consent, as applicable. During the Pre-Closing Period, at any meeting of
the stockholders of Company called to consider and vote upon any Other Proposal
(as hereinafter defined) (and at any and all postponements and adjournments
thereof), and in connection with any action to be taken in respect of any Other
Proposal by written consent of stockholders of Company, the Stockholders shall
vote or cause to be voted (including by written consent, if applicable) all of
the Subject Shares against such Other Proposal. For purposes of this Agreement,
the term "Other Proposal" means any (x) proposed to acquire the stock or assets
of Crown made by any person or group other than Kinross or (y) other action
which is intended or could reasonably be expected to impede, interfere with,
delay or materially and adversely affect the contemplated economic benefits to
Kinross of any of the Transactions or any of the other transactions contemplated
by this Agreement; PROVIDED, HOWEVER, that neither the Transaction nor any other
transaction contemplated by the Transaction Agreement to be consummated by
Kinross and Crown in connection therewith shall constitute an Other Proposal.
The Stockholders shall not enter into any agreement or understanding with any
person or entity the effect of which would be a violation of the provisions and
agreements contained in this Section 1.1.
1.2 IRREVOCABLE PROXY.
(a) GRANT OF PROXY. THE STOCKHOLDERS HEREBY APPOINT KINROSS AND ANY
DESIGNEE OF KINROSS, EACH OF THEM INDIVIDUALLY, THE STOCKHOLDERS' PROXY PURSUANT
TO THE PROVISIONS OF THE WASHINGTON BUSINESS CORPORATION ACT, WITH FULL POWER OF
SUBSTITUTION AND RESUBSTITUTION, TO VOTE OR ACT BY WRITTEN CONSENT WITH RESPECT
TO THE SUBJECT SHARES ONLY TO ACCOMPLISH THE PURPOSE AND AGREEMENTS SET FORTH IN
SECTION 1.1 HEREOF. THIS PROXY IS GIVEN TO SECURE THE PERFORMANCE OF THE DUTIES
OF THE STOCKHOLDERS UNDER THIS AGREEMENT. THE STOCKHOLDERS AFFIRM THAT THIS
PROXY IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE. THE STOCKHOLDERS
SHALL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE
NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY.
(b) OTHER PROXIES REVOKED. The Stockholders represent that any proxies
heretofore given in respect of the Subject Shares are not irrevocable, and that
all such proxies are hereby revoked.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 CERTAIN REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Each of the
representations and warranties of the Stockholders shall be true, accurate, and
correct in all respects as of the date hereof and on the Closing Date with the
same force and effect as though such representations and warranties had been
made as of the Closing Date. The Stockholders represent and warrant to Kinross
as follows:
(a) POWER AND AUTHORITY; EXECUTION AND DELIVERY. The Stockholders have
all requisite legal capacity, power, and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by the Stockholders and the consummation by the
Stockholders of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of the Stockholders. This Agreement has been
duly executed and delivered by the Stockholders and, assuming that this
Agreement constitutes the valid and binding obligation of the other parties
hereto, constitutes a valid and binding obligation of the Stockholders,
enforceable against the Stockholders in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, and similar laws affecting creditors' rights and remedies generally
and to general principles of equity.
2
(b) NO CONFLICTS. The execution and delivery of this Agreement do not
and the consummation of the transactions contemplated hereby and compliance with
the provisions hereof will not: (i) conflict with or result in any breach of any
organizational documents applicable to the Stockholders; or (ii) conflict with,
result in a breach or violation of, or default (with or without notice or lapse
of time or both) under, or give rise to a material obligation, a right of
termination, cancellation, or acceleration of any obligation or a loss of a
material benefit under, or require notice to or the consent of any person under
any agreement, instrument, undertaking, law, rule, regulation, judgment, order,
injunction, decree, determination, or award binding on the Stockholders, other
than any such conflicts, breaches, violations, defaults, obligations, rights, or
losses that individually or in the aggregate would not: (i) impair the ability
of the Stockholders to perform the Stockholders' obligations under this
Agreement; or (ii) prevent or delay the consummation of any of the transactions
contemplated hereby.
ARTICLE III
CERTAIN COVENANTS
3.1 CERTAIN COVENANTS OF THE STOCKHOLDERS.
(a) RESTRICTION ON TRANSFER OF SUBJECT SHARES, PROXIES AND
NONINTERFERENCE. During the Pre-Closing Period, the Stockholders shall not,
directly or indirectly, in their capacity as stockholders of Crown, except
pursuant to the terms and conditions of this Agreement: (i) offer for sale,
sell, transfer, tender, loan, pledge, encumber, assign, or otherwise dispose of,
or enter into any contract, option, or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment, or other disposition of, grant any rights with respect
to, or enter into any transaction which is designed to, or might be reasonably
be expected to, resort in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) of any
right, title and interest any or all of the Subject Shares; (ii) grant any
proxies or powers of attorney, deposit any of the Subject Shares into a voting
trust or enter into a voting agreement with respect to any of the Subject
Shares; or (iii) take any action that would make any representation or warranty
contained herein untrue, inaccurate or incorrect or have the effect of impairing
the ability of the Stockholders to perform Stockholders' obligations under this
Agreement or preventing or delaying the consummation of any of the transactions
contemplated hereby or by the Transaction Agreement.
(b) CONVERSION OF NOTES. On or before the record date set by the Crown
board for the special meeting of Crown stockholders held to consider and approve
the transaction contemplated by the Transaction Agreement, the Stockholders
agree to convert any Crown Convertible Notes held by them into shares of common
stock of Crown.
(c) COOPERATION. The Stockholders shall reasonably cooperate with
Kinross and Crown in connection with their respective efforts to fulfill the
conditions to the Transaction Agreement.
(d) NO SOLICITATION. Except as set forth in the Transaction Agreement
and as set forth in this Agreement, the Stockholders shall not, in their
capacity as stockholders of Crown, respond to any inquiries or the making of any
proposal by any person or entity (other than Kinross or any affiliate of
Kinross) concerning any business combination merger, tender offer, exchange
offer, sale of assets, sale of shares of capital stock or debt securities, or
similar transactions involving Crown or any subsidiary, division, or operating
or principal business unit of Crown. If the Stockholders receive any such
inquiry or proposal, then the Stockholders shall promptly inform Kinross of the
existence thereof. Except as set forth in the Transaction Agreement and as set
forth in this Agreement, the Stockholders will immediately cease and cause to be
terminated any existing activities, discussions, or negotiations with any
parties conducted heretofore with respect to any of the foregoing.
3
ARTICLE IV
MISCELLANEOUS
4.1 FEES AND EXPENSES. Each party hereto shall pay its own expenses
incident to preparing for, entering into and carrying out this Agreement and the
consummation of the transactions contemplated hereby.
4.2 AMENDMENT; TERMINATION. This Agreement may not be amended, except
by an instrument in writing signed on behalf of each of the parties hereto. This
Agreement and the proxies granted pursuant to Section 1.2 shall terminate at the
end of the Pre-Closing Period.
4.3 EXTENSION; WAIVER. Any agreement on the part of a party to waive
any provision of this Agreement, or to extend the time for any performance
hereunder, shall be valid only if set forth in an instrument in writing signed
on behalf of such party. The failure of any party to this Agreement to assert
any of its rights under this Agreement or otherwise shall not constitute a
waiver of such rights.
4.4 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement, and is not intended to confer upon any person
other than the parties any rights or remedies.
4.5 GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Washington, regardless of the laws
that might otherwise govern under applicable principles of conflict of laws
thereof.
4.6 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 or telecopy
(providing proof of delivery) to the address set forth below (or, in each case,
at such other address as shall be specified by like notice).
If to Kinross, to:
Xxxxxxx X. Xxxxx
Kinross Gold Corporation
52nd Floor, Scotia Plaza
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx XXXXXX X0X 0X0
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx X. Xxxx
Xxxx Xxxxxxxx Xxxxx Xxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Stockholders, to the addresses set forth on the
signature page hereto.
4
4.7 ASSIGNMENT. Except to a wholly owned subsidiary, neither this
Agreement nor any of the rights, interests, or obligations under this Agreement
may be assigned or delegated, in whole or in part, by operation of law or
otherwise, by the Stockholders without the prior written consent of Kinross, and
any such assignment or delegation that is not consented to shall be null and
void other than an assignment or delegation to a wholly owned subsidiary. This
Agreement, together with any rights, interests, or obligations of Kinross
hereunder, may be assigned or delegated, in whole or in part, by Kinross without
the consent of or any action by the Stockholders upon notice by Kinross to the
Stockholders as provided herein; PROVIDED THAT, such assignment and delegation
is made to a person (an "Assignee") to whom the rights and interests of Kinross
under the Transaction Agreement are assigned. Subject to the foregoing, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns (including without
limitation any person to whom any Subject Shares are sold, transferred,
assigned, or passed, whether by operation of law or otherwise).
4.8 CONFIDENTIALITY. The Stockholders recognizes that successful
consummation of the transactions contemplated by this Agreement may be dependent
upon confidentiality with respect to the matters referred to herein. In this
connection, pending public disclosure of such matters, the Stockholders hereby
agrees not to disclose or discuss such matters with anyone not a party to this
Agreement (other than its counsel and advisors, if any) without the prior
written consent of Kinross, except for filings required pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder, or disclosures its counsel advises are necessary in order to fulfill
its obligations imposed by law, in which event the Stockholders shall give
notice of such disclosure to Kinross as promptly as practicable so as to enable
Kinross to seek a protective order promptly from a court of competent
jurisdiction with respect thereto. Notwithstanding anything to the contrary in
this Agreement Kinross and the Stockholders agree that each of them (and each
employee, representative, and other agent of Kinross or the Stockholders) may
disclose the tax treatment and tax structure of the transaction contemplated by
the Transaction Agreement (and any related transactions) and all materials of
any kind (including opinions or other tax analyses) provided to Kinross or the
Stockholders relating to such tax treatment and tax structure, except to the
extent necessary to comply with any applicable federal or state securities laws.
4.9 FURTHER ASSURANCES. The Stockholders shall execute and deliver
such other documents and instruments and take such further actions as may be
necessary or appropriate and reasonably requested by Kinross in order to ensure
that Kinross receives the full benefit of this Agreement.
4.10 ENFORCEMENT. Irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement.
4.11 SEVERABILITY. Whenever possible, each provision or portion of any
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal, or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality, or unenforceability shall not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement shall be
reformed, construed, and enforced in such jurisdiction as if such invalid,
illegal, or unenforceable provision or portion of any provision had never been
contained herein.
4.12 DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
4.13 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same instrument and
shall become effective when one or more counterparts have been signed by each
party and delivered to the other parties.
5
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be signed as of the day and year first written above.
Kinross:
KINROSS GOLD CORPORATION
By /s/ Xxxx Xxxxx
--------------
The Stockholders:
Zoloto Investors, LP
by Zoloto, LLC, its general partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx, sole member
Solitario Resources Corporation
By /s/ Xxxxxxxxxxx X. Herald
-------------------------
/s/ Xxxxxxxxxxx X. Herald
-------------------------
Xxxxxxxxxxx X. Herald
/s/ Xxxx X. Xxxxx, III
----------------------
Xxxx X. Xxxxx, III
/s/ Xxxxx Xxxxxxx
-----------------
Xxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
6
EXHIBIT A
STOCKHOLDERS AND THE NUMBER OF SHARES DIRECTLY CONTROLLED
AS OF NOVEMBER 10, 2003
Xxxxx Xxxxxxx (holds 225,000 options*). (Xx. Xxxxxxx has beneficial interest in Zoloto holdings)
Xxxxx Herald (holds 850,000* options and 37,268 shares)
Xxxx Xxxxx (holds 175,000* options)
Xxxxx Xxxxxxx (holds 225,000* options)
Non-director
Xxxxx Xxxxxxxx (holds 530,000* options and 2,177 shares)
Zoloto holdings
Outstanding shares: 768,375
Fully diluted: Senior notes $2,000,000 convertible into 5,714,286 shares*
Warrants for 5,714,286 shares (exerciseable at $0.75 per share) *
Solitario holdings
Outstanding shares: 965,491
Fully diluted: Senior notes $1,000,000 convertible into 3,057,143 shares*
Warrants for 3,057,143 shares (exerciseable at $0.75 per share) *
* Until and unless converted or exercised, these shares are not entitled to vote
at a meeting of shareholders.
7
