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EXHIBIT D
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
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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
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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.
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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
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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.
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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.
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(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
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(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.
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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: 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
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/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
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/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
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/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
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/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
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/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
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/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
