Exhibit 2.2
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of June 24, 2001 (this "Agreement"),
among the several stockholders of HOMESTAKE MINING COMPANY, a Delaware
corporation (the "Company"), that are parties hereto (each, a "Stockholder" and,
collectively, the "Stockholders"), XXXXXXX GOLD CORPORATION, a corporation
organized under the laws of the Province of Ontario ("Parent"), HAVANA
ACQUISITION INC., a Delaware corporation and a wholly owned subsidiary of Parent
("Sub"), and the Company.
WHEREAS, Parent and Sub are entering into an Agreement and Plan of
Merger dated as of the date hereof (as amended from time to time, the "Merger
Agreement"; capitalized terms being used herein as defined therein unless
otherwise defined herein), with the Company, whereby, among other things, each
issued and outstanding share of common stock, par value $1.00 per share, of the
Company (the "Company Common Stock"), not owned directly or indirectly by Parent
or the Company, will be converted into the right to receive 0.53 (as adjusted
pursuant to Sections 2.01(f) and 5.06 of the Merger Agreement, the "Conversion
Number") fully paid and nonassessable common shares in the capital of Parent
(the "Parent Common Stock") and the Sub will merge with and into the Company as
of the Effective Date (the "Merger");
WHEREAS, as of the date hereof, each Stockholder is the record or
beneficial owner of the number of shares of Company Common Stock set forth on
the signature page hereof beneath such Stockholder's name (with respect to each
Stockholder, such Stockholder's "Existing Shares" and, together with (i) any
shares of Company Common Stock acquired after the date hereof, whether upon the
exercise of warrants, options, conversion of convertible securities or otherwise
and (ii) any shares of Company Common Stock transferred to a Permitted
Transferee in accordance with Section 3.01, such Stockholder's "Shares"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement and incurring the obligations set forth therein, Parent and Sub have
required that the Stockholders agree to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
Article I
VOTING AGREEMENT
----------------
SECTION 1.01 Voting Agreement. Each Stockholder, severally and not
jointly, hereby agrees that, from and after the date hereof and until the
termination of the Merger Agreement or the Effective Time, at any meeting of the
stockholders of the Company, however called, and in any action by consent of the
stockholders of the Company, such Stockholder will
vote (or cause to be voted) such Stockholder's Shares in favor of the approval
and adoption of the Merger Agreement, the Merger and all the transactions
contemplated by the Merger Agreement and this Agreement and otherwise in such
manner as may be necessary to consummate the Merger.
SECTION 1.02 Irrevocable Proxy. Each Stockholder hereby irrevocably
appoints Parent, and each of its officers, as such Stockholder's attorney and
proxy pursuant to the provisions of Section 212(c) of Delaware Law, with full
power of substitution, to vote and otherwise act (by written consent or
otherwise) with respect to such Stockholder's Shares at any meeting of
stockholders of the Company (whether annual or special and whether or not an
adjourned or postponed meeting) or consent in lieu of any such meeting or
otherwise, on the matters and in the manner specified in Section 1.01 (the
"Irrevocable Proxy"). THIS PROXY AND POWER OF ATTORNEY ARE IRREVOCABLE AND
COUPLED WITH AN INTEREST AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW,
SHALL BE VALID AND BINDING ON ANY PERSON TO WHOM A STOCKHOLDER MAY TRANSFER ANY
OF HIS SHARES IN BREACH OF THIS AGREEMENT. Each Stockholder hereby revokes all
other proxies and powers of attorney with respect to such Stockholder's Shares
that may have heretofore been appointed or granted, other than, in the case of
Mr. August xxx Xxxxx, Mr. August-Xxxxxxxx xxx Xxxxx, Mr. Luitpold-Xxxxxxxxx xxx
Xxxxx and Xx. Xxxxx-Xxxxxxxx xxx Xxxxx, the power of attorney attached as
Exhibit B to Schedule 13-D filed in respect of the Company with the SEC on
December 8, 1998 (the "13-D Power of Attorney"), and no subsequent proxy or
power of attorney shall be given or written consent executed (and if given or
executed, shall not be effective) by any Stockholder with respect thereto. All
authority herein conferred or agreed to be conferred shall survive the death or
incapacity of any Stockholder and the termination of the Irrevocable Proxy and
any obligation of the Stockholder under this Agreement shall be binding upon the
heirs, personal representatives, successors and assigns of such Stockholder.
SECTION 1.03 Conflicts. In the case of any Stockholder who is an
officer or director of the Company, no provision of this Agreement, including
Section 3.02, shall prevent or interfere with such Stockholder's performance of
his or her obligations, if any, solely in his capacity as an officer or director
of the Company, including, without limitation, the fulfillment of his or her
fiduciary duties under Delaware Law.
Article II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
--------------------------------------------------
Each Stockholder, severally and not jointly, hereby represents and
warrants to Parent and to Sub in respect of such Stockholder as follows:
SECTION 2.01 Organization, Qualification. (a) Such Stockholder, if it
is an individual, has all legal capacity to enter into this Agreement, to carry
out his or her obligations hereunder and to consummate the transactions
contemplated hereby.
(b) Such Stockholder, if it is a corporation or other legal entity,
(i) is duly organized, validly existing and, if applicable, in good standing
under the laws of the jurisdiction
of its incorporation or formation and has the requisite power and authority and
all necessary governmental approvals to own, lease and operate its properties
and to carry on its business as it is now being conducted, except where the
failure to be so organized, existing or, if applicable, in good standing or to
have such power, authority and governmental approvals would not prevent or
materially delay consummation of the transactions contemplated by this Agreement
or otherwise prevent or materially delay such Stockholder from performing its
obligations under this Agreement and (ii) is duly qualified or licensed as a
foreign corporation to do business, and is, if applicable, in good standing, in
each jurisdiction where the character of the properties owned, leased or
operated by such Stockholder or the nature of its business makes such
qualification or licensing necessary, except for such failures to be so
qualified or licensed and, if applicable, in good standing that would not
prevent or materially delay such Stockholder from performing its obligations
under this Agreement.
SECTION 2.02 Authority Relative to this Agreement. Such Stockholder
has all necessary power and authority to execute and deliver this Agreement, to
perform such Stockholder's obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by such Stockholder and constitutes a legal, valid and binding
obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
SECTION 2.03 No Conflict. (a) The execution and delivery of this
Agreement by such Stockholder do not, and the performance of this Agreement by
such Stockholder shall not, (i) conflict with or violate the certificate of
incorporation or by-laws of such Stockholder that is a corporation, (ii)
assuming satisfaction of the requirements set forth in Section 2.03(b) below,
conflict with or violate the terms of any trust agreements or equivalent
organizational documents of any Stockholder that is a trust, (iii) conflict with
or violate any Law applicable to such Stockholder or by which the Shares owned
by such Stockholder are bound or affected or (iv) result in any breach of, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the Shares owned by such Stockholder pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which such Stockholder is a party
or by which such Stockholder or the Shares owned by such Stockholder are bound
or affected, except for any such conflicts, violations, breaches, defaults or
other occurrences that would not prevent or materially delay such Stockholder
from performing its obligations under this Agreement.
(b) The execution and delivery of this Agreement by such Stockholder
do not, and the performance of this Agreement by such Stockholder shall not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Entity, except (i) for applicable
requirements, if any, of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), state securities or "blue sky" laws (the "Blue Sky Laws"),
state takeover laws and the pre-merger notification requirements of the HSR Act,
and (ii) where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or
materially delay such Stockholder from performing its material obligations under
this Agreement.
SECTION 2.04 Title to the Shares. As of the date hereof, such
Stockholder is the record or beneficial owner of the number of shares of Company
Common Stock set forth beneath such Stockholder's name on the signature page
hereof. Such Shares are all the securities of the Company owned, either of
record or beneficially, by such Stockholder (other than Shares owned by others
as to which such Stockholder may also be deemed a beneficial owner). The Shares
owned by such Stockholder are owned free and clear of all Liens, other than any
Liens created by this Agreement. Except as provided in this Agreement or, in the
case of Mr. August xxx Xxxxx, Mr. August-Xxxxxxxx xxx Xxxxx, Mr.
Luitpold-Xxxxxxxxx xxx Xxxxx and Xx. Xxxxx-Xxxxxxxx xxx Xxxxx, the 13-D Power of
Attorney , such Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares owned by
such Stockholder.
Article III
COVENANTS
---------
SECTION 3.01 No Disposition or Encumbrance of Shares. Each
Stockholder, severally and not jointly, hereby agrees that, except as
contemplated by this Agreement, such Stockholder shall not (i) sell, transfer,
tender, assign, contribute to the capital of any entity, hypothecate, give or
otherwise dispose of, grant a proxy or power of attorney with respect to,
deposit into any voting trust, or create or permit to exist any Liens of any
nature whatsoever with respect to, any of such Stockholder's Shares (or agree or
consent to, or offer to do, any of the foregoing) other than to a person or
entity who first agrees in writing to be bound by the provisions of this
Agreement pursuant to a written instrument reasonably satisfactory in form and
substance to Parent, (ii) take any action that would make any representation or
warranty of such Stockholder herein untrue or incorrect in any material respect
or have the effect of preventing or disabling such Stockholder from performing
such Stockholder's obligations hereunder or (iii) directly or indirectly,
initiate, solicit or encourage any person to take actions that could reasonably
be expected to lead to the occurrence of any of the foregoing.
SECTION 3.02 No Solicitation of Transactions. Subject to Section 1.03,
each Stockholder, severally and not jointly, agrees that between the date of
this Agreement and the date of termination of the Merger Agreement, such
Stockholder will not, directly or indirectly, through any officer, agent or
through the Company or its representatives or otherwise, (a) solicit, initiate,
or encourage the submission of any Company Takeover Proposal, (b) enter into any
agreement with respect to any Company Takeover Proposal, or (c) provide any
non-public information regarding the Company to any third party or engage in any
negotiations or substantive discussions in connection with any Company Takeover
Proposal (except to the extent that such negotiations or discussions (i) are
between only Mr. August xxx Xxxxx, Mr. August-Xxxxxxxx xxx Xxxxx, Mr.
Luitpold-Xxxxxxxxx xxx Xxxxx or Xx. Xxxxx-Xxxxxxxx xxx Xxxxx, as applicable, and
the Company, and (ii) relate only to the advisability of a Company Takeover
Proposal and the willingness of such Stockholder to support, by written
agreement or otherwise, such Company Takeover Proposal). Each Stockholder shall,
and shall direct or cause its directors, officers, employees, representatives
and agents to, immediately cease and cause to be terminated any discussions or
negotiations with any parties that may be ongoing with respect to any Company
Takeover Proposal. Each Stockholder shall promptly advise Parent orally and in
writing of the receipt of any Company Takeover Proposal or any request for
information with
respect to any Company Takeover Proposal, the material terms and conditions of
such Company Takeover Proposal or request and the identity of the person making
such Company Takeover Proposal or request, other than any Company Takeover
Proposal or request for information by such Stockholder in his capacity as a
director or executive officer of the Company (which shall be governed by Section
4.02 of the Merger Agreement).
SECTION 3.03 Further Action; Reasonable Best Efforts. Upon the terms
and subject to the conditions hereof, Parent, Sub and each Stockholder shall use
their reasonable best efforts to take, or cause to be taken, all appropriate
action, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
this Agreement.
SECTION 3.04 Affiliate Letter; Registration Statement. Each
Stockholder covenants and agrees to enter into an affiliate letter pursuant to
Section 5.13 of the Merger Agreement (an "Affiliate Agreement") no later than 30
days prior to the Effective Time of the Merger. Parent agrees to file and
use its best efforts to have declared effective by the SEC under the Securities
Act by the expiration of the "Pooling Restricted Period" (as defined in the
Affiliate Agreement), a "shelf" registration statement that registers the
resale, in any manner of sale allowed on a shelf registration statement, on a
continuous basis for a one-year period, by Mr. August xxx Xxxxx, Mr.
August-Xxxxxxxx xxx Xxxxx, Mr. Luitpold-Xxxxxxxxx xxx Xxxxx and Xx.
Xxxxx-Xxxxxxxx xxx Xxxxx, of all of the Parent Common Stock received by Mr.
August xxx Xxxxx, Mr. August-Xxxxxxxx xxx Xxxxx, Mr. Luitpold-Xxxxxxxxx xxx
Xxxxx and Xx. Xxxxx-Xxxxxxxx xxx Xxxxx in the Merger, including any securities
issued as a dividend or distribution thereon or in exchange or replacement
therefor. As soon as reasonably practicable following the execution of this
Agreement, and prior to the date of execution of an Affiliate Agreement by Mr.
August xxx Xxxxx, Mr. August-Xxxxxxxx xxx Xxxxx, Mr. Luitpold-Xxxxxxxxx xxx
Xxxxx or Xx. Xxxxx-Xxxxxxxx xxx Xxxxx, Parent further agrees to enter into a
registration rights agreement with Mr. August xxx Xxxxx, Mr. August-Xxxxxxxx xxx
Xxxxx, Mr. Luitpold-Xxxxxxxxx xxx Xxxxx and Xx. Xxxxx-Xxxxxxxx xxx Xxxxx
providing for the foregoing and containing other customary terms, provisions,
exceptions and limitations.
Article IV
TERMINATION
-----------
SECTION 4.01 Termination. This Agreement (including, without
limitation, the Irrevocable Proxy) shall become null and void and have no
further effect upon the earliest of (a) the effective time of the Merger, (b)
the termination of the Merger Agreement, or (c) with respect solely to Mr.
August xxx Xxxxx, Mr. August-Xxxxxxxx xxx Xxxxx, Mr. Luitpold-Xxxxxxxxx xxx
Xxxxx and Xx. Xxxxx-Xxxxxxxx xxx Xxxxx, the delivery, at any time after March
31, 2002, to Parent and the Company by Mr. August xxx Xxxxx (or his
attorney(s)-in-fact) of written notice terminating this Agreement (without any
liability or obligation on the part of such holders as a result thereof).
Nothing in this Section 4.01 shall relieve any party of liability for any breach
of this Agreement.
Article V
MISCELLANEOUS
-------------
SECTION 5.01 Amendment. This Agreement may not be amended except by an
instrument in writing signed by Parent, Sub, the Company and each Stockholder to
be bound by such amendment.
SECTION 5.02 Waiver. Any party to this Agreement may (i) extend the
time for the performance of any obligation or other act of any other party
hereto, (ii) waive any inaccuracy in the representations and warranties of
another party contained herein or in any document delivered pursuant hereto and
(iii) waive compliance with any agreement of another party contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
SECTION 5.03 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by telecopy,
or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other address
for a party as shall be specified in a notice given in accordance with this
Section 5.03):
(a) if to any of Mr. August xxx Xxxxx, Mr. August-Xxxxxxxx xxx Xxxxx,
Mr. Luitpold-Xxxxxxxxx xxx Xxxxx or Xx. Xxxxx-Xxxxxxxx xxx Xxxxx,
addressed to such Stockholder :
c/o Alston & Bird LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
(b) if to any other Stockholder or to the Company, addressed to such
Stockholder or the Company, as the case may be:
c/o Homestake Mining Company
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy to:
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxx, Esq.
(c) if to Parent or Sub:
Xxxxxxx Gold Corporation
Address: Xxxxx Xxxx Xxxxx
Xxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0 Xxxxxx
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
SECTION 5.04 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated by this Agreement is not affected in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated by this Agreement
be consummated as originally contemplated to the fullest extent possible.
SECTION 5.05 Assignment. This Agreement shall not be assigned by
operation of law or otherwise, except that Parent and Sub may assign all or any
of their rights and obligations hereunder to any subsidiary of Parent, except
that any such assignment shall not relieve Parent or Sub or any other subsidiary
of Parent of their obligations, if any, hereunder.
SECTION 5.06 Entire Agreement; No Third- Party Beneficiaries. This
Agreement (a) 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 (b) is not intended to
confer upon any person other than the parties any rights or remedies.
SECTION 5.07 Enforcement. The parties agree that 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. It
is accordingly agreed that 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 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 (a) consents to submit itself 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 by this Agreement, (b) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court and (c) agrees that it will not initiate any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any court
other than a Federal court sitting in the State of Delaware or a Delaware state
court.
SECTION 5.08 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
SECTION 5.09 Waiver of Jury Trial. Each of the parties hereto hereby
waives to the fullest extent permitted by applicable law any right it may have
to a trial by jury with respect to any actions or proceedings directly or
indirectly arising out of, under or in connection with this Agreement.
SECTION 5.10 Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, whether or not the Closing
shall have occurred.
SECTION 5.11 Interpretation. When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. 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. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation".
SECTION 5.12 Counterparts. This Agreement may be executed in one 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 the parties and delivered to the other parties.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written.
XXXXXXX GOLD CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
HAVANA ACQUISITION INC.
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
HOMESTAKE MINING COMPANY
By /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Vice President
/s/ August xxx Xxxxx
---------------------------------
Name: August xxx Xxxxx
By: /s/ Ernst Xxxx Xxxxx
--------------------------
Attorney-in-fact
By: /s/ Xxxxxx Xxxxx
--------------------------
Attorney-in-fact
Shares of Company
Common Stock: 21,000,000
/s/ August-Xxxxxxxx xxx Xxxxx
---------------------------------
Name: August-Xxxxxxxx xxx Xxxxx
By: /s/ Ernst Xxxx Xxxxx
--------------------------
Attorney-in-fact
By: /s/ Xxxxxx Xxxxx
--------------------------
Attorney-in-fact
Shares of Company
Common Stock: 3,000,000
/s/ Luitpold-Xxxxxxxxx xxx Xxxxx
--------------------------------
Name: Luitpold-Xxxxxxxxx xxx Xxxxx
By: /s/ Ernst Xxxx Xxxxx
--------------------------
Attorney-in-fact
By: /s/ Xxxxxx Xxxxx
--------------------------
Attorney-in-fact
Shares of Company
Common Stock:5,257,900
/s/ Xxxxx-Xxxxxxxx xxx Xxxxx
----------------------------------
Name: Xxxxx-Xxxxxxxx xxx Xxxxx
By: /s/ Ernst Xxxx Xxxxx
--------------------------
Attorney-in-fact
By: /s/ Xxxxxx Xxxxx
--------------------------
Attorney-in-fact
Shares of Company
Common Stock: 3,000,000
/s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
Shares of Company
Common Stock: 131,726 shares, plus
shares subsequently
credited pursuant to
the Homestake
Savings Plan Account
after March 31, 2001
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Shares of Company
Common Stock: 20,089 shares, plus
shares subsequently
credited pursuant to
the Homestake
Savings Plan Account
after March 31, 2001
