EXHIBIT 10.25.
MERGER AGREEMENT
AMONG
KINROSS GOLD CORPORATION,
KINROSS MERGER CORPORATION,
AND
AMAX GOLD INC.
DATED
FEBRUARY 9, 1998
TABLE OF CONTENTS
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Page
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Article I GENERAL........................................................... 2
Section 1.01 Defined Terms................................................. 2
Section 1.02 Merger........................................................ 2
Section 1.03 Charter and By-laws; Directors and Officers................... 2
Section 1.04 No Separate Identity.......................................... 2
Section 1.05 Effectiveness................................................. 2
Section 1.06 Conversion and Amendment of Shares............................ 3
Section 1.07 Treasury Shares, Etc.......................................... 3
Section 1.08 Amax Preferred Shares......................................... 3
Section 1.09 Options, Etc.................................................. 3
Section 1.10 Amax Stock Options and Restricted Stock....................... 4
Section 1.11 No Fractional Shares.......................................... 5
Section 1.12 Stock Transfer Books.......................................... 5
Section 1.13 Exchange of Certificates...................................... 5
Section 1.14 Corporate Governance.......................................... 6
Article II REPRESENTATIONS AND WARRANTIES OF AMAX........................... 7
Section 2.01 Organization and Good Standing................................ 7
Section 2.02 Consents, Authorizations, and Binding Effect.................. 7
Section 2.03 SEC Documents; Financial Statements........................... 9
Section 2.04 Title and Condition of Assets................................. 10
Section 2.05 Insurance..................................................... 10
Section 2.06 Litigation and Compliance..................................... 10
Section 2.07 Taxes......................................................... 11
Section 2.08 Pension and Other Employee Plans and Agreements............... 12
Section 2.09 Labor Relations............................................... 14
Section 2.10 Contracts, Etc................................................ 15
Section 2.11 Absence of Certain Changes, Etc............................... 16
Section 2.12 Subsidiaries.................................................. 16
Section 2.13 Capitalization................................................ 17
Section 2.14 Environmental Matters......................................... 18
Section 2.15 Brokers....................................................... 18
Section 2.16 Intercorporate Indebtedness................................... 19
Section 2.17 Reserve Reports and Reserve Estimates......................... 19
Section 2.18 Fairness Opinions............................................. 19
Article III REPRESENTATIONS AND WARRANTIES OF KINROSS AND
MERGER CORP..................................................... 19
Section 3.01 Organization and Good Standing................................ 19
Section 3.02 Consents, Authorizations, and Binding Effect.................. 20
Section 3.03 Securities Documents; Financial Statements.................... 21
Section 3.04 Title and Condition of Assets................................. 22
Section 3.05 Insurance..................................................... 22
Section 3.06 Litigation and Compliance..................................... 23
Section 3.07 Taxes......................................................... 23
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Section 3.08 Pension and Other Employee Plans and Agreements....................... 24
Section 3.09 Labor Relations....................................................... 26
Section 3.10 Contracts, Etc........................................................ 27
Section 3.11 Absence of Certain Changes, Etc....................................... 27
Section 3.12 Subsidiaries.......................................................... 28
Section 3.13 Capitalization........................................................ 29
Section 3.14 Environmental Matters................................................. 30
Section 3.15 Brokers............................................................... 30
Section 3.16 Valid Issuance of Kinross Shares...................................... 30
Section 3.17 Reserve Reports and Reserve Estimates................................. 31
Section 3.18 Ownership of Merger Corp.; No Prior Activities; Assets of Merger Corp. 31
Section 3.19 Cash on Hand.......................................................... 31
Section 3.20 Opinions.............................................................. 31
Article IV COVENANTS OF AMAX........................................................ 32
Section 4.01 Access................................................................ 32
Section 4.02 Ordinary Course....................................................... 32
Section 4.03 Insurance............................................................. 34
Section 4.04 Closing Conditions.................................................... 35
Section 4.05 Amax Stockholders' Approval........................................... 35
Section 4.06 Rule 145 Affiliates................................................... 35
Section 4.07 No Shop............................................................... 35
Section 4.08 Information in Joint Proxy Statement and Canadian Prospectus.......... 37
Article V KINROSS AND MERGER CORP.'S COVENANTS...................................... 38
Section 5.01 Access................................................................ 38
Section 5.02 Ordinary Course....................................................... 38
Section 5.03 Insurance............................................................. 40
Section 5.04 Closing Conditions.................................................... 41
Section 5.05 Kinross Shareholders' Approval........................................ 41
Section 5.06 Stock Exchange Listing................................................ 41
Section 5.07 No Shop............................................................... 41
Section 5.08 Information in Registration Statement and Joint Proxy Statement....... 44
Section 5.09 Compliance with Canadian Securities Laws.............................. 44
Article VI OTHER COVENANTS OF THE PARTIES........................................... 44
Section 6.01 Consents and Notices.................................................. 44
Section 6.02 Joint Proxy Statement and Registration Statement; Equity Offering..... 45
Section 6.03 Press Releases........................................................ 46
Section 6.04 Tax Representation Letters............................................ 46
Section 6.05 Transfer Taxes........................................................ 46
Section 6.06 Indemnification of Directors and Officers............................. 46
Article VII CONDITIONS TO OBLIGATIONS OF KINROSS AND MERGER CORP.................... 47
Section 7.01 Representations and Warranties........................................ 47
Section 7.02 Compliance with Covenants............................................. 48
Section 7.03 No Material Adverse Change............................................ 48
Section 7.04 Consents.............................................................. 48
Section 7.05 Tax Opinion........................................................... 48
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Article VIII CONDITIONS TO OBLIGATIONS OF Amax....................................... 48
Section 8.01 Representations and Warranties........................................ 48
Section 8.02 Compliance with Covenants............................................. 49
Section 8.03 No Material Adverse Change............................................ 49
Section 8.04 Consents.............................................................. 49
Section 8.05 Tax Opinion........................................................... 49
Article IX CONDITIONS TO OBLIGATIONS OF AMAX AND KINROSS............................. 49
Section 9.01 Equity Offering....................................................... 49
Section 9.02 No Injunctions........................................................ 50
Section 9.03 Stock Exchange Approval - Kinross..................................... 50
Section 9.04 Shareholder Approval - Amax........................................... 50
Section 9.05 Securities Filings.................................................... 50
Section 9.06 No Litigation......................................................... 50
Section 9.07 Completion of Transactions............................................ 50
Article X CLOSING AND TERMINATION.................................................... 51
Section 10.01 Closing............................................................... 51
Section 10.02 Termination of this Agreement......................................... 51
Section 10.03 Termination Fee and Expenses Kinross................................. 53
Section 10.04 Termination Fee and Expenses - Amax................................... 54
Article XI MISCELLANEOUS............................................................. 55
Section 11.01 Further Actions....................................................... 55
Section 11.02 Expenses.............................................................. 55
Section 11.03 Entire Agreement...................................................... 55
Section 11.04 Descriptive Headings.................................................. 55
Section 11.05 Notices............................................................... 55
Section 11.06 Governing Law......................................................... 56
Section 11.07 Assignability......................................................... 57
Section 11.08 Employee Benefit Plan................................................. 57
Section 11.09 Remedies.............................................................. 57
Section 11.10 Waivers and Amendments................................................ 57
Section 11.11 Third-Party Rights.................................................... 58
Section 11.12 Illegalities.......................................................... 58
Section 11.13 Currency.............................................................. 58
Section 11.14 Counterparts.......................................................... 59
SCHEDULE A........................................................................... 60
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MERGER AGREEMENT
THIS AGREEMENT dated February 9, 1998 is made
A M O N G:
KINROSS GOLD CORPORATION, an Ontario corporation
("Kinross");
OF THE FIRST PART
- and -
KINROSS MERGER CORPORATION, a Delaware corporation
and a wholly-owned subsidiary of Kinross ("Merger
Corp.");
OF THE SECOND PART
- and -
AMAX GOLD INC., a Delaware corporation ("Amax");
OF THE THIRD PART
WHEREAS, the common stock, par value $0.01 per share, of Amax ("Amax Shares")
is publicly traded in the United States and Canada and is listed on the TSE and
the NYSE;
WHEREAS, the common shares of Kinross ("Kinross Shares") are publicly traded
in Canada and the United States and are listed on the TSE and the NYSE;
WHEREAS Amax and Kinross have agreed to a merger in which Amax will become a
subsidiary of Kinross and the holders of outstanding Amax Shares at the
Effective Time will have the right to receive Kinross Shares;
WHEREAS, for United States federal income tax purposes, it is intended that
the Merger qualify as a reorganization within the meaning of Section 368(a) of
the Tax Code and that the holders of Amax Shares who will not be "five percent
transferee shareholders" as defined in Treasury Regulation Section 1.367(a)
3(c)(5)(ii) or who enter into five-year gain recognition agreements in the form
provided in Treasury Regulation Section 1.367(a) 3T(g) (the "Eligible Amax
Shareholders") not recognize a taxable gain in the Merger under Section 367(a)
of the Tax Code;
WHEREAS the Significant Shareholder and certain of its subsidiaries, Kinross,
Merger Corp. and Amax are entering into the Stockholder Agreement and Kinross
and the Significant Shareholder are entering into the Investor Agreement
simultaneously with the execution and delivery hereof as a condition to Kinross
entering into this Agreement; and
WHEREAS, Kinross, Merger Corp. and Amax desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to set forth various conditions precedent to completion of the
Merger;
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NOW, THEREFORE, in consideration of the mutual benefits to be derived and the
representations and warranties, conditions and promises herein contained, and
intending to be legally bound hereby, the parties agree as follows:
ARTICLE I
GENERAL
Section 1.01 Defined Terms.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in Schedule A.
Section 1.02 Merger.
In accordance with the terms and provisions of this Agreement, the GCL, and
other applicable Law, at the Effective Time Merger Corp. shall be merged with
and into Amax (the "Merger") and Amax shall be, and is hereinafter sometimes
referred to as, the "Surviving Corporation". Merger Corp. and Amax shall be,
and are hereinafter sometimes referred to as, the "Constituent Corporations".
Section 1.03 Charter and By-laws; Directors and Officers.
(a) The Certificate of Incorporation and the By-laws of Amax shall be
the Certificate of Incorporation and the By-laws of the Surviving
Corporation after the Effective Time, and may thereafter be
amended in accordance with their terms and as provided by law and
this Agreement; and
(b) The directors and officers of Merger Corp. immediately prior to
the Effective Time shall be the directors and officers,
respectively, of the Surviving Corporation until their respective
successors are duly elected and qualified.
Section 1.04 No Separate Identity.
The separate existence and the corporate organization of Merger Corp. and Amax,
except insofar as they may continue by statute, shall cease as of the Effective
Time.
Section 1.05 Effectiveness.
The Merger shall not become effective until, and shall become effective at the
point in time at which, a Certificate of Merger (the "Certificate of Merger") in
a form mutually acceptable to the parties shall have been executed by the
Constituent Corporations and filed with the Secretary of State of the State of
Delaware in accordance with Section 251 of the GCL and in accordance with the
terms of this Agreement or at such later time as shall be agreed upon by Amax
and Kinross and specified in the Certificate of Merger. The date and time when
the Merger becomes effective is referred to as the "Effective Time". The
Parties shall cause the Certificate of Merger to be executed and filed as
aforesaid on the Closing Date upon the satisfaction or waiver of the conditions
contained in Articles VII, VIII, and IX.
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Section 1.06 Conversion and Amendment of Shares.
As of the Effective Time, by virtue of the Merger and without any action on the
part of any holder of Amax Shares or Amax Preferred Shares, each outstanding
Amax Share (other than Amax Shares held by Amax, Kinross or Merger Corp.) shall
be converted automatically into 0.8004 fully paid and non-assessable Kinross
Shares (the "Exchange Ratio"). Each outstanding share of the common stock of
Merger Corp. shall, at the Effective Time, be converted automatically into one
share of common stock of the Surviving Corporation and the Surviving Corporation
shall, at or immediately following the Effective Time, issue one share of its
common stock to Kinross for each Amax Share outstanding at the Effective Time as
consideration for the issue of the Kinross Shares in the Merger.
In the event of any stock dividend, stock split, reclassification,
recapitalization, combination or exchange of shares with respect to, or rights
issued in respect of, Kinross Shares or Amax Shares after the date hereof and
prior to the Effective Time, the Exchange Ratio shall be adjusted accordingly so
as to maintain the relative proportionate interests of the holders of Kinross
Shares and the holders of Amax Shares.
Section 1.07 Treasury Shares, Etc.
Each outstanding Amax Share which, immediately prior to the Effective Time, is
held by:
(a) Amax;
(b) Merger Corp.; or
(c) Kinross;
shall be cancelled as of the Effective Time and no consideration shall be paid
or delivered with respect thereto.
Section 1.08 Amax Preferred Shares.
The Amax Preferred Shares shall remain outstanding following the Merger and the
rights, preferences and privileges of the Amax Preferred Shares shall not be
affected by the Merger except:
(a) as provided in the Certificate of Incorporation of Amax;
(b) such Amax Preferred Shares shall, after the Effective Time,
become convertible into the right to receive Kinross Shares in
the manner prescribed in the Certificate of Incorporation of
Amax; and
(c) Amax and Kinross shall take all action necessary so that,
immediately before the Effective Time each Amax Preferred Share
shall be entitled to 1.4 votes per share, voting together as a
class with the Amax Shares (and any other shares of capital stock
of Amax at the time entitled to vote) on all matters submitted to
a vote of stockholders of Amax.
Section 1.09 Options, Etc.
As of the Effective Time, Amax's 1992 Stock Option Plan and the Stock Grant Plan
for Non-Employee Directors shall terminate and cease to be of any further force
or effect, subject to the assumption by
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Kinross, in accordance with Section 1.10, of all stock options outstanding under
such plans as of the Effective Time.
Section 1.10 Amax Stock Options and Restricted Stock.
(a) Prior to the Effective Time, Amax and Kinross shall take all
necessary action such that, as of the Effective Time, each Amax
Stock Option (and related stock appreciation right ("SAR")) that
is outstanding immediately prior to the Effective Time pursuant
to Amax's stock option plans (other than any "stock purchase
plan" within the meaning of Section 423 of the Tax Code) in
effect on the date hereof (the "Stock Plans") shall be assumed by
Kinross and become and represent a fully exercisable option (and
related SAR) to purchase the number of Kinross Shares (a
"Substitute Option") determined by multiplying: (i) the number of
Amax Shares subject to such Amax Stock Option immediately prior
to the Effective Time; by (ii) the Exchange Ratio, at an exercise
price per Kinross Share (rounded up the nearest tenth of a cent)
equal to the exercise price per Amax Share immediately prior to
the Effective Time divided by the Exchange Ratio. Kinross shall
pay cash to holders of Amax Stock Options in lieu of issuing
fractional Kinross Shares upon the exercise of Substitute
Options. As of the Effective Time, each Substitute Option shall
be subject to the same terms and conditions as were applicable
immediately prior to the Effective Time under the related Amax
Stock Option and Stock Plan under which it was granted, including
those providing for the accelerated exercisability and other
special rights arising upon a "Change in Control" in accordance
with the terms of such Stock Plan, including, without limitation,
the optionees' right under the Amax's 1992 Stock Option Plan to
receive the cash value of their Amax Stock Options upon an
election made prior to or within 60 days after the approval of
the Merger by the stockholders of Amax. Holders of Amax Stock
Options who so elect in accordance with the terms of a stock plan
prior to the Effective Time shall be paid the cash value of their
Amax Stock Options immediately following the Effective Time. Amax
agrees to use all reasonable efforts to obtain any necessary
consents of holders of Amax Stock Options and take such other
actions as may be necessary to effect this Section 1.10.
(b) In respect of each Amax Stock Option (and related SAR) as
converted into a Substitute Option pursuant to Section 1.10(a)
and assumed by Kinross, and the Amax Shares underlying such
option, Kinross shall file and keep current a Registration
Statement on Form S-8 (or a post-effective amendment to a
Registration Statement on Form S-8) or other appropriate form for
as long as such options remain outstanding.
(c) As of and after the Effective Time, each person who immediately
prior to the Effective Time held restricted Amax Shares
("Restricted Stock") granted to such person pursuant to Amax's
Key Executive Long-Term Incentive Plan (the "Incentive Plan")
shall have the right to receive the cash value of such Restricted
Stock following the Effective Time upon the terms and conditions
as were applicable to such Restricted Stock under the Incentive
Plan immediately prior to the Effective Time. Members of the
Incentive Plan (other than those members who elect, prior to the
Change in Control, as defined in the Incentive Plan, not to have
the vesting of their Restricted Stock accelerated and the value
of such Restricted Stock paid to them in cash) shall be paid the
cash value of their Restricted Stock immediately following the
Effective Time.
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(d) The provisions of this Section 1.10 are intended to be for the
benefit of, and shall be enforceable by, each person who is or
has been an employee of Amax or any of its subsidiaries and is a
holder of Amax Stock Options, SARs or Restricted Stock and such
employee's heirs and personal representatives and shall be
binding on all successors and assigns of Kinross.
Section 1.11 No Fractional Shares.
Fractional Kinross Shares shall not be issued in exchange for Amax Shares.
Notwithstanding any other provision of this Agreement, each holder of Amax
Shares converted pursuant to the Merger who would otherwise have been entitled
to receive a fraction of a Kinross Share (after taking into account all
Certificates delivered by such holder) shall receive, in lieu thereof, cash
(without interest) in an amount equal to such fractional part of a Kinross Share
multiplied by the Average Closing Price. "Average Closing Price" shall equal
the average closing price of Kinross Shares on the NYSE Composite Tape (as
reported by The Wall Street Journal or, if not reported thereby, any other
authoritative source) for the ten consecutive trading days ending on the third
trading day immediately preceding the Effective Time. As soon as practicable
after determination of the amount of cash to be paid in lieu of any fractional
shares, the Exchange Agent shall make available in accordance with this
Agreement such amounts to the former holders of Amax Shares.
Section 1.12 Stock Transfer Books.
The stock transfer books of Amax shall be closed as of the Effective Time, and
no transfer of Amax Shares shall be made or consummated thereafter except by the
Surviving Corporation.
Section 1.13 Exchange of Certificates.
(a) Kinross and Amax shall authorize Montreal Trust Company of Canada
(or such other Person as shall be reasonably acceptable to
Kinross and Amax) to act as Exchange Agent hereunder (the
"Exchange Agent"). As soon as practicable after the Effective
Time, Kinross shall deposit with the Exchange Agent for the
benefit of the holders of certificates which immediately prior to
the Effective Time represented Amax Shares (the "Certificates")
certificates representing Kinross Shares and cash in lieu of
fractional shares as provided in Section 1.11 hereof (together
with any dividends or distributions with respect thereto payable
as provided in Section 1.13(c) (the "Exchange Fund") issuable
pursuant to Section 1.06 in exchange for outstanding Amax Shares.
(b) As soon as practicable after the Effective Time, the Exchange
Agent shall mail to each holder of record of a Certificate whose
Amax Shares were converted into Kinross Shares pursuant to
Section 1.06 a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon actual and proper delivery of
the Certificates to the Exchange Agent, shall contain
instructions for use in effecting the surrender of the
Certificates in exchange for certificates representing Kinross
Shares, and shall be in such form and contain such other
provisions as Kinross and Amax may reasonably specify). Upon
surrender of a Certificate for cancellation to the Exchange
Agent, together with such letter of transmittal, duly executed,
the holder of such Certificate shall be entitled to receive in
exchange therefor a certificate representing that number of whole
Kinross Shares which such holder has the right to receive
pursuant to this Article and cash in lieu of fractional shares as
provided in Section 1.11 hereof, and the Certificate so
surrendered shall forthwith be canceled. Until surrendered as
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contemplated by this Section, each Certificate shall, at and
after the Effective Time, be deemed to represent only the right
to receive, upon surrender of such Certificate, a certificate
representing the appropriate number of Kinross Shares and cash in
lieu of fractional shares as provided in Section 1.11 hereof and
certain dividends and other distributions as contemplated by
Section 1.13(c).
(c) No dividends or other distributions that are declared on or after
the Effective Time on Kinross Shares or are payable to the
holders of record thereof on or after the Effective Time will be
paid to persons entitled by reason of the Merger to receive
certificates representing Kinross Shares until such persons
surrender their Certificates, as provided in Section 1.13(b).
Subject to the effect of applicable Law, there shall be paid to
such record holders of the certificates representing such Kinross
Shares:
(i) at the time of such surrender or as promptly as practicable
thereafter, the amount of any dividends or other
distributions theretofore paid with respect to whole
Kinross Shares and having a record date on or after the
Effective Time and a payment date prior to such surrender;
and
(ii) at the appropriate payment date or as promptly as
practicable thereafter, the amount of dividends or other
distributions payable with respect to whole Kinross Shares
and having a record date on or after the Effective Time but
prior to surrender and a payment date subsequent to
surrender.
In no event shall the person entitled to receive such dividends
or other distributions be entitled to receive interest on such
dividends or other distributions. If any cash or certificate
representing Kinross Shares is to be paid to or issued in a name
other than that in which the Certificate surrendered in exchange
therefor is registered, it shall be a condition of such exchange
that the Certificate so surrendered shall be properly endorsed
and otherwise in proper form for transfer and that the person
requesting such exchange shall pay to the Exchange Agent any
transfer or other taxes required by reason of the issuance of
certificates for such Kinross Shares in a name other than that of
the registered holder of the Certificate surrendered, or shall
establish to the satisfaction of the Exchange Agent that such tax
has been paid or is not applicable.
(d) Any portion of the Exchange Fund which remains undistributed to
the former stockholders of Amax for one year after the Effective
Time shall be delivered to Kinross, upon demand of Kinross, and
any former stockholders of Amax who have not theretofore complied
with this Section shall thereafter look only to Kinross for
payment of their claim for Kinross Shares and any dividends or
distributions with respect to Kinross Shares. Neither Kinross nor
Amax shall be liable to any holder of Amax Shares for Kinross
Shares (or dividends or distributions with respect thereto)
delivered to a public official pursuant to any applicable
abandoned property, escheat, or similar Law.
Section 1.14 Corporate Governance.
The Board of Directors of Kinross shall make, or if such approval is required,
at the Kinross Shareholders' Meeting shall submit for approval of the holders of
Kinross Shares, amendments to Kinross's Articles of Incorporation or By-laws to
provide that immediately following such meeting the Kinross Board of Directors
shall consist of: (i) four (4) directors ("Class I Directors") who shall have
terms of three years; (ii) three (3) directors ("Class II Directors") who shall
have an initial term of two
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years and subsequent terms of three years; and (iii) three (3) directors ("Class
III Directors") who shall have an initial term of one year and subsequent terms
of three years. Kinross shall take all action to cause the Board of Directors of
Kinross as of the Effective Time to be comprised of ten (10) directors, five (5)
of whom shall be nominees of Kinross, who are currently members of the Board of
Directors of Kinross, three (3) of whom shall be nominees of the Significant
Shareholder and two (2) of whom shall be nominees of Amax. Of such nominees, at
least three (3) of the Kinross nominees shall be Class I Directors. The Chairman
and Chief Executive Officer and the Vice Chairman of Kinross as of the Effective
Time shall be as set forth in Section 1.14 of each of the Amax and Kinross
Disclosure Letters. Obtaining the Board structure set forth in the first
sentence of this Section 1.14 or the designation set forth in the third sentence
of this Section 1.14 shall not be a condition to consummation of the Merger.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF AMAX
Except as set forth in the Amax SEC Documents, Amax hereby represents
and warrants as follows to and in favour of Kinross:
Section 2.01 Organization and Good Standing.
(a) Except as set forth in Section 2.01 of the Amax Disclosure
Letter, Amax and each Amax Group Member is a corporation duly
organized, validly existing, and in good standing under the Laws
of the jurisdiction of its incorporation and is qualified to
transact business and is in good standing as a foreign
corporation in the jurisdictions (which are listed in Section
2.01 of the Amax Disclosure Letter) where it is required to
qualify in order to conduct its business as presently conducted,
except where the failure to be so qualified would not have a
Material Adverse Effect on Amax. Except as listed in Section 2.01
of the Amax Disclosure Letter, there are no subsidiaries of Amax
and none of Amax's subsidiaries has any subsidiaries.
(b) Each Amax Group Member has the corporate power and authority to
own, lease, or operate its properties and to carry on its
business as now conducted.
(c) Amax has heretofore delivered or made available to Kinross
complete and correct copies of Amax's Certificate of
Incorporation and By-laws, as each has been amended and is in
effect on the date hereof.
Section 2.02 Consents, Authorizations, and Binding Effect.
(a) Amax may execute, deliver and perform this Agreement without the
necessity of Amax or any Amax Group Member obtaining any consent,
approval, authorization or waiver, or giving any notice or
otherwise, except:
(i) those disclosed in Section 2.02 of the Amax Disclosure
Letter;
(ii) those, with respect to consents, approvals, authorizations
and waivers, which have been obtained, are unconditional,
and are in full force and effect and, with respect to
notices, which have been given on a timely basis;
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(iii) the approval of the Merger and the other transactions
contemplated hereby and by the Stockholder Agreement by
the holders of a majority of the outstanding Amax Shares
(including the Significant Shareholder) either at a
meeting of the Amax stockholders duly called and held or
pursuant to approval by written consent pursuant to
Section 228 of the GCL ("Approval by Consent");
(iv) the filing with the SEC of: (A) the Registration
Statement; (B) the Joint Proxy Statement; and (C) such
reports and information under the Exchange Act and the
rules and regulations promulgated by the SEC thereunder,
as may be required in connection with this Agreement and
the transactions contemplated hereby;
(v) the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware and
appropriate documents with the relevant authorities of
other states in which Amax is qualified to do business;
(vi) such as may be required under state takeover laws;
(vii) as may be required under foreign laws, state securities
laws and the rules of the NYSE or the TSE;
(viii) such as may be necessary under the HSR Act;
(ix) such as may be required under the Investment Canada Act
and the Competition Act (Canada); or
(x) those which, if not obtained or made, would not prevent
or delay the consummation of the Merger or otherwise
prevent Amax from performing its obligations under this
Agreement and would not be reasonably likely to have a
Material Adverse Effect on Amax.
(b) Amax has full corporate power and authority to execute and
deliver this Agreement and, subject to the approval of the Merger
and the transactions contemplated hereby and by the Stockholder
Agreement by the holders of Amax Shares at the Amax Stockholders'
Meeting or by way of Approval by Consent, to perform its
obligations hereunder and to consummate the Merger.
(c) The Board of Directors of Amax (at a meeting duly called and
held) has or, in the case of clause (c)(iv) below, will, by the
requisite vote of directors:
(i) determined that the Merger is advisable and fair and in
the best interests of Amax and its shareholders;
(ii) approved the Merger in accordance with the provisions of
Section 251 of the GCL;
(iii) recommended the approval of this Agreement, and the
Merger and the other matters required to be approved in
connection with this Agreement and the Stockholder
Agreement by the holders of the Amax Shares and directed
that the Merger be submitted for consideration by the
Amax stockholders; and
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(iv) establish as promptly as practicable in compliance with
applicable Law and stock exchange rules, a record date
for Approval by Consent and, if applicable, the Amax
Stockholders' Meeting.
(d) This Agreement has been duly executed and delivered by Amax and
constitutes the legal, valid, and binding obligation of Amax,
enforceable against Amax 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.
(e) Except as disclosed in Section 2.02 of the Amax Disclosure Letter
or referenced in clauses (i) through (ix) of Section 2.02(a)
hereof, the execution, delivery, and performance of this
Agreement by Amax will not:
(i) constitute a violation of the respective Certificates or
Articles of Incorporation (or like charter documents) or
By-laws, each as amended, of any Amax Group Member;
(ii) with respect to the Amax Group, conflict with, result in
the breach of or constitute a default or give to others a
right of termination, cancellation or acceleration of any
obligation under, or the loss of any material benefit
under, any Contract to which any Amax Group Member is a
party or as to which any of their respective property is
subject which would have a Material Adverse Effect on
Amax;
(iii) constitute a violation of any Law applicable or relating
to any Amax Group Member or the businesses of the Amax
Group except for such violations which would not have a
Material Adverse Effect on Amax; or
(iv) with respect to the Amax Group, result in the creation of
any Lien upon any of the assets of any Amax Group Member,
other than such Liens as would not have a Material
Adverse Effect on Amax.
Section 2.03 SEC Documents; Financial Statements.
Amax has filed all required documents with the SEC since January 1, 1996 (the
"Amax SEC Documents"). As of their respective dates, the Amax SEC Documents
complied in all material respects with the then applicable requirements of the
Securities Act or the Exchange Act, as the case may be, and, at the respective
times they were filed, none of the Amax SEC Documents contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The consolidated
financial statements (including, in each case, any notes thereto) of Amax
included in the Amax SEC Documents complied as to form in all material respects
with applicable accounting requirements and the published rules and regulations
of the SEC with respect thereto as of their
9
respective dates of filing, were prepared in accordance with United States
generally accepted accounting principles (except, in the case of the unaudited
statements, as permitted by Regulation S-X of the SEC) applied on a consistent
basis during the periods involved (except as may be indicated therein or in the
notes thereto) and fairly presented the consolidated financial position of Amax
and its consolidated subsidiaries as of the respective dates thereof and the
consolidated cash flows for the periods then ended (subject, in the case of
unaudited statements, to the absence of footnote disclosure and to normal year-
end audit adjustments and to any other adjustments described therein). Except as
disclosed in the Amax SEC Documents or as required by generally accepted
accounting principles, Amax has not, since September 30, 1997, made any change
in the accounting practices or policies applied in the preparation of its
financial statements.
Section 2.04 Title and Condition of Assets.
Except as set forth in Section 2.04 of the Amax Disclosure Letter, to the
knowledge of Amax, each Amax Group Member has sufficient title (subject, in the
case of unpatented mining claims located in the United States, to the paramount
title of the United States of America, and including, in the case of mining
concessions, licenses or other governmental permits granting mining rights on
lands in countries other than the United States, the performance of all material
acts and the making of all required payments necessary to obtain and maintain
such concessions, licenses or permits), applying customary standards in the
mining industry, to its operating properties and properties with proven and
probable ore reserves (other than property as to which it is a lessee, in which
case it has a valid leasehold interest), except for such defects in title known
to Amax that, individually or in the aggregate, would not be reasonably likely
to have a Material Adverse Effect on Amax. Notwithstanding the foregoing, no
representation or warranty is made as to a discovery of valuable minerals for
any unpatented mining claim located in the United States. All tangible personal
property of each Amax Group Member is in generally good repair and is
operational and usable in the operation of Amax, subject to normal wear and tear
and technical obsolescence, repair or replacement, except for such property
whose failure to be in such condition would not be reasonably likely to have a
Material Adverse Effect on Amax.
Section 2.05 Insurance.
The Amax Group Members have their respective assets insured against loss or
damage with coverage of a type and in an amount consistent with the types and
amounts of insurance maintained by corporations of a size and carrying on
businesses of the type carried on by Amax and the other Amax Group Members; it
being acknowledged and agreed that such insurance, insofar as it is provided
under policies obtained by the Significant Shareholder, will be terminated as of
the Effective Time.
Section 2.06 Litigation and Compliance.
(a) Except as to the matters described in Section 2.06(a) of the Amax
Disclosure Letter and except for actions, suits, claims and
proceedings which are not reasonably likely to have a Material
Adverse Effect on Amax or where insurance proceeds will be
available to pay in full (subject to any applicable deductible)
any damages awarded as a consequence of any such action, suit,
claim, or proceeding:
(i) as of the date of this Agreement, there are no actions,
suits, claims or proceedings, whether in equity or at law
or, to the knowledge of Amax, any Governmental
investigations pending or threatened against any Amax
Group Member or with respect to any asset or property
owned, leased or used by any Amax Group Member; and
10
(ii) as of the date of this Agreement, there are no actions,
suits, claims or proceedings, whether in equity or at law
or, to the knowledge of Amax, any Governmental
investigations pending or threatened which question or
challenge the validity of this Agreement or any action
taken or to be taken pursuant to this Agreement.
(b) Each Amax Group Member is in compliance with, and is not in
default or violation under, and has not received notice asserting
the existence of any default or violation under, any Law
applicable to the businesses or operations of the Amax Group,
including without limitation all Laws relating to occupational
health or safety (but excluding any Environmental Law), except
for noncompliance, defaults, and violations which would not, in
the aggregate, have a Material Adverse Effect on Amax.
(c) Except as described in Section 2.06(c) of the Amax Disclosure
Letter, no Amax Group Member, or material assets of any Amax
Group Member, is subject to any judgment, order or decree entered
in any lawsuit or proceeding which has had, or which is
reasonably likely to have, a Material Adverse Effect on Amax or
which is reasonably likely to prevent Amax from performing its
obligations under this Agreement.
(d) Except as described in Section 2.06(d) of the Amax Disclosure
Letter, and except as may be required under any Environmental
Law, each Amax Group Member has duly filed all reports and
returns required to be filed by it with any Government and
obtained all Governmental permits and licenses and other
Governmental consents which are required in connection with the
business and operations of the Amax Group, except for such
reports, returns, permits, licenses and consents which if not
obtained or made would not have a Material Adverse Effect on
Amax.
Section 2.07 Taxes.
Except as described in Section 2.07 of the Amax Disclosure Letter:
(a) Amax and each Amax Group Member has timely filed, or has caused
to be timely filed on its behalf, all Tax Returns required to be
filed by it, and all such Tax Returns are true, complete and
accurate, except to the extent any failure to file or any
inaccuracies in any filed Tax Returns would not, individually or
in the aggregate, have a Material Adverse Effect on Amax. All
Taxes shown to be due on such Tax Returns, or otherwise owed,
have been timely paid, except to the extent that any failure to
pay would not, individually or in the aggregate, have a Material
Adverse Effect on Amax. Amax's most recent financial statements
contained in the Amax SEC Documents reflect a reserve in
accordance with U.S. GAAP for all Taxes payable by Amax and the
Amax Group Members for all taxable periods and portions thereof
through the date of such financial statements. No deficiency with
respect to any Taxes has been proposed, asserted or assessed in
writing against Amax or any Amax Group Member, and no written
requests for waivers of the time to assess any such Taxes are
pending, except to the extent any such deficiency or request for
waiver would not, individually or in the aggregate, have a
Material Adverse Effect on Amax.
(b) The United States federal income tax returns of Amax and each
Amax Group Member consolidated in such returns either have been
examined by and settled with the United States Internal Revenue
Service or the applicable statutes of limitations have expired
for
11
all years through 1993. All material assessments for Taxes due
with respect to such completed and settled examinations or any
concluded litigation have been fully paid. There are no material
liens for Taxes (other than for current Taxes not yet due and
payable or liens for Taxes being contested in good faith by
appropriate proceedings for which reserves have been established
in accordance with U.S. GAAP) on the assets of Amax or any Amax
Group Member. Neither Amax nor any Amax Group Member is bound by
any material agreement with respect to Taxes.
(c) Amax has no reason to believe that any conditions exist that
could reasonably be expected to either:
(i) prevent the Merger from qualifying as a reorganization
within the meaning of Section 368(a) of the Tax Code; or
(ii) cause the Eligible Amax Shareholders to recognize a
taxable gain in the Merger under Section 367(a) of the
Tax Code.
Section 2.08 Pension and Other Employee Plans and Agreements.
(a) Section 2.08 of the Amax Disclosure Letter sets forth all
Employee Plans maintained or contributed to by each Amax Group
Member ("Amax Group Employee Plan"), and Amax has furnished or
made available or will furnish and make available to Kinross and
Merger Corp. true and complete copies of all such Amax Group
Employee Plans as amended and in effect on the date hereof with
copies of all related trust agreements, annuity contracts,
insurance contracts or other funding instruments, actuarial
reports (for the past three years), financial statements (for the
past three years), and plan summaries, booklets and personnel
manuals.
(b) To the knowledge of Amax, except to the extent any of the
following would, individually or in the aggregate, be reasonably
likely to have a Material Adverse Effect on the Amax Group:
(i) the execution and delivery of this Agreement by Amax and
the consummation of the transactions contemplated hereby
do not constitute and will not result in any "prohibited
transaction" within the meaning of Section 406 of ERISA
or Section 4975 of the Tax Code;
(ii) each Amax Group Employee Plan is duly established and,
where applicable, qualified in accordance with all
applicable Laws and no fact or circumstance, where
applicable, exists which is likely to adversely affect
the qualified status of any Employee Plan which is
permitted or required to be qualified;
(iii) each Amax Group Employee Plan and any related trust or
other funding agreements are currently, and have been in
the past, in compliance in all material respects with the
requirements of applicable Laws and applicable collective
bargaining agreements as to the form, operation, and
administration of such plans;
12
(iv) all returns, reports, notices, and applications relating
to each Amax Group Employee Plan required by any
Governmental agency have been in all material respects
timely filed;
(v) all contributions or premiums required to be made on or
before the date hereof to or in respect of each Amax
Group Employee Plan under the terms of such plan, ERISA,
the Tax Code or other applicable Law and applicable
collective bargaining agreements have been in all
material respects timely made and no Taxes, penalties or
fees are owing or payable under or in respect of any such
plan;
(vi) no Amax Group Member or any ERISA Affiliate of any such
Amax Group Member has incurred any Liability (except for
premiums) to the Pension Benefit Guaranty Corporation
which has not been discharged and will not incur any such
Liability as a result of the Merger;
(vii) there exists no Liability of the Amax Group in connection
with any former Employee Plan of the Amax Group or former
Amax ERISA Affiliate Plan that has terminated and all
procedures for termination of each such former plans have
been properly followed in accordance with the terms of
such former Amax Group Employee Plan or any former Amax
ERISA Affiliate Plan and applicable Law;
(viii) except as described in Section 2.08(b) of the Amax
Disclosure Letter, no event has occurred respecting any
of the Amax Group Employee Plans which would entitle the
Pension Benefit Guaranty Corporation to wind-up or
terminate any such Amax Group Employee Plan, in whole or
in part;
(ix) there are no merger or asset transfer applications
pending with any Governmental agency with respect to any
Amax Group Employee Plan;
(x) none of the Amax Group Employee Plans requires or permits
a retroactive increase in premiums or payments and no
improvements to any such plan have been promised to any
person;
(xi) none of the Amax Group Employee Plans is a "multiemployer
plan" (as such term is defined in Section 3(37) of
ERISA);
(c) Except as set forth in Section 2.08(b) of the Amax Disclosure
Letter, neither the execution of this Agreement nor any agreement
referred to or contemplated herein, nor the consummation of the
Merger or the other transactions contemplated by this Agreement,
will: (A) result in any payment (including, without limitation,
severance, unemployment compensation, golden parachute or
otherwise) becoming due under any Amax Group Employee Plan; (B)
increase any benefits otherwise payable under any Amax Group
Employee Plan; or (C) result in the acceleration of the time of
payment or vesting of any such benefits.
(d) The most recent actuarial valuation reports prepared in
connection with each of the Amax Group Employee Plans in respect
of which an actuarial valuation report is required to be prepared
have been provided to Kinross. The information provided by
13
Amax Group Members to the author of each such report for the
purpose of assisting the author in preparing each such actuarial
valuation report was, at the time it was so provided, and
remains, true, accurate and complete in all material respects,
and each such actuarial valuation report is in final form and
remains unamended. There has been no material adverse change to
the funded status of any of the foregoing Amax Group Employee
Plans since the date of the foregoing actuarial valuation reports
which would increase the annual funding liability for such plan
by more than $100,000.
(e) Except to the extent any of the following would, individually or
in the aggregate, not be reasonably likely to have a Material
Adverse Effect on the Amax Group, there are no actions, suits,
claims or proceedings, whether in equity or at law, or
Governmental examinations or investigations pending or, to the
knowledge of Amax or the Significant Shareholder, threatened
against or with respect to any Amax Group Employee Plan or any
assets of any such Amax Group Employee Plan.
(f) Each Foreign Plan of the Amax Group has been maintained in
compliance with its material terms and with the requirements of
any and all applicable Law and has been maintained, where
required, in good standing with applicable regulatory
authorities; no Amax Group Member has incurred any obligations
which remain unpaid in connection with the termination of or
withdrawal from any Foreign Plan of the Amax Group; the present
value of the accrued benefit liabilities (whether or not vested)
under each Foreign Plan of the Amax Group that is a pension or
retirement plan, determined as of the end of the most recently
ended fiscal year of the applicable Amax Group Member on the
basis of actuarial assumptions, each of which is reasonable, did
not exceed the current value of the assets of such Foreign Plan
of the Amax Group allocable to such benefit liabilities; except
in any such case where the failure to be so maintained, or the
incurring of such obligation or the amount of such excess accrued
benefit liabilities would not, individually or in the aggregate,
be reasonably likely to: (x) have a Material Adverse Effect on
Amax; or (y) materially prejudice the ability of Amax to perform
its obligations under this Agreement.
Section 2.09 Labor Relations.
(a) Except as described in Section 2.09 of the Amax Disclosure
Letter, as of the date hereof, no employees of any Amax Group
Member are covered by any collective bargaining agreement.
(b) Except as described in Section 2.09 of the Amax Disclosure
Letter:
(i) there are no representation questions, arbitration
proceedings, labour strikes, slow-downs or stoppages,
material grievances, or other labour troubles pending or,
to the knowledge of Amax, threatened as of the date
hereof with respect to the employees of any Amax Group
Member which would have a Material Adverse Effect on
Amax; and
(ii) to the best of Amax's knowledge, as of the date hereof,
there are no present or pending applications for
certification (or the equivalent procedure under any
applicable Law) of any union as the exclusive bargaining
agent for any employees of any Amax Group Member.
14
Section 2.10 Contracts, Etc.
(a) The Amax SEC Documents contain an accurate and complete listing
of all material Contracts, whether written or oral, required to
be described therein or filed as exhibits thereto pursuant to the
Exchange Act and the applicable rules and regulations thereunder.
Except as set forth in Section 2.10 of the Amax Disclosure
Letter, each of such Contracts is in full force and effect and:
(i) none of the Amax Group Members or, to Amax's best
knowledge, any other party thereto, has breached or is in
default thereunder;
(ii) no event has occurred which, with the passage of time or
the giving of notice would constitute such a breach or
default;
(iii) no claim of material default thereunder has, to Amax's
best knowledge, been asserted or threatened; and
(iv) none of the Amax Group Members or, to Amax's best
knowledge, any other party thereto is seeking the
renegotiation thereof or substitute performance
thereunder,
except where such breach or default, or attempted
renegotiation or substitute performance, individually or
in the aggregate, does not have and would not be
reasonably expected to have a Material Adverse Effect on
Amax.
(b) Except for the contracts, agreements, leases and commitments
listed in Section 2.10 of the Amax Disclosure Letter as of the
date hereof, neither Amax nor any Amax Group Member is a party to
or bound by:
(i) any material Contract, whether written or oral, which was
not entered into or made in the ordinary course of its
business;
(ii) any contract which imposes material geographic or
territorial limitations on the conduct of business by
Amax or any Amax Group Member (excluding customary area
of interest provisions relating to specific properties
and similar restrictions entered into in the ordinary
course of business and which do not have a significant
impact on their ability to conduct business generally in
that geographic area); or
(iii) any joint venture or partnership agreement respecting its
or properties with proven and probable ore reserves with
a fair market value of more than $1,000,000.
(c) As of the date hereof, the net hedge and future position of Amax
is not materially different from that existing on December 31,
1997.
15
Section 2.11 Absence of Certain Changes, Etc.
As of the date of this Agreement, and except as described in Section 2.11 of the
Amax Disclosure Letter and except for any actions required to be performed by
Amax or otherwise permitted pursuant to this Agreement or the Shareholders
Agreements, since September 30, 1997:
(a) there has been no Material Adverse Change in the Amax Group;
(b) no Amax Group Member has:
(i) sold, transferred, distributed or otherwise disposed of
or acquired a material amount of its assets, or agreed to
do any of the foregoing, except in the ordinary course of
business;
(ii) prior to the date hereof, made or agreed to make any
material capital expenditure or commitment for additions
to property, plant, or equipment not reflected in the
Interim Amax Financial Statements or in the capital
budget for the 1998 fiscal year approved by Amax, a copy
of which has been provided to Kinross;
(iii) made or agreed to make any material increase in the
compensation payable to any employee or director except
for increases made in the ordinary course of business and
consistent with presently existing policies or agreements
or past practice;
(iv) conducted its operations otherwise than in all material
respects in the normal course of business;
(v) entered into any material transaction or material
Contract, or amended or terminated any material
transaction or material Contract, except transactions or
Contracts entered into in the ordinary course of
business;
(vi) effected any material change in the practices followed by
the Amax Group in calculating bad debts, contingencies,
or other reserves from that reflected in the Interim Amax
Financial Statements; or
(vii) agreed or committed to do any of the foregoing.
(c) there has not been any declaration, setting aside or payment of
any dividend or other distribution with respect to Amax's capital
stock other than the payment of dividends in accordance with the
terms of the Amax Preferred Shares.
Section 2.12 Subsidiaries.
(a) Section 2.01 of the Amax Disclosure Letter sets forth with
respect to each Amax Group Member:
(i) its jurisdiction of incorporation; and
(ii) the percentage of each class of its equity securities
owned, directly or indirectly, by Amax.
16
(b) Except as set forth in Section 2.01 of the Amax Disclosure
Letter, all of the outstanding shares of capital stock of each
Amax Group Member (other than Amax) owned of record and
beneficially by Amax are so owned free and clear of all Liens.
Except with respect to the subsidiaries listed in Exhibit 2.01,
Amax does not own, directly or indirectly, any material equity
interest of or in any entity or enterprise organized under the
Laws of the United States, any state thereof, the District of
Columbia, Canada, any province thereof, or any other domestic or
foreign jurisdiction.
(c) All outstanding shares of the capital stock of or other equity
interests in each Amax Group Member (other than Amax) have been
duly authorized and are validly issued, fully paid and non-
assessable.
(d) Except as described in Section 2.01 of the Amax Disclosure
Letter, there are no authorized, outstanding or existing:
(i) proxies, voting trusts, or other agreements or
understandings with respect to the voting of any capital
stock of any Amax Group Member (other than Amax) to which
any Amax Group Member is party;
(ii) securities issued by any Amax Group Members that are
convertible into or exchangeable for any capital stock of
any Amax Group Member (other than Amax);
(iii) options, warrants, or other rights to purchase or
subscribe for any capital stock of, or securities
convertible into or exchangeable for any capital stock
of, any Amax Group Member (other than Amax) in each case
granted, extended or entered into by any Amax Group
Member;
(iv) agreements of any kind to which any Amax Group Member is
party relating to the issuance of any capital stock of
any Amax Group Member (other than Amax), any securities,
options, warrants, or rights convertible into or
exchangeable for, Amax Shares;
(v) agreements of any kind to which any Amax Group Member is
party which may obligate any Amax Group Member (other
than Amax) to issue or purchase any of its securities; or
(vi) agreements to which any Amax Group Member is party
containing any right of first negotiation or refusal with
respect to the equity securities of any Amax Group Member
(other than Amax).
Section 2.13 Capitalization.
(a) At the date hereof the authorized capital stock of Amax consists
of 200,000,000 Amax Shares, of which 114,873,878 Amax Shares were
outstanding as of February 6, 1998; 10,000,000 preferred shares,
of which 2,000,000 shares have been designated as $2.25 Series A
Convertible Preferred Stock, none of which are outstanding, and
1,840,000 of which have been designated as $3.75 Series B
Convertible Preferred Stock, of which 1,840,000 were outstanding
as of the date hereof. At the date of this Agreement, of the
authorized but unissued Amax Shares, 12,099,213 shares were
reserved for issuance
17
upon conversion of the Series A Convertible Preferred Stock and
11,152,240 shares were reserved for issuance upon conversion of
the Series B Convertible Preferred Stock. Section 2.13 of the
Amax Disclosure Letter sets forth the number of Amax Shares
reserved for issuance pursuant to the terms of outstanding
employee and director stock options and the number of Amax Shares
reserved for issuance pursuant to options and other stock awards
which may be granted in the future pursuant to existing Amax
Employee Plans, in each case as of the date hereof.
(b) Except as set forth above or in Section 2.13(b) of the Amax
Disclosure Letter, no shares of capital stock or other voting
securities of Amax are issued, reserved for issuance or
outstanding.
(c) All the outstanding Amax Shares and Amax Preferred Shares have
been duly authorized and are validly issued, fully paid and non-
assessable, free of pre-emptive rights.
(d) Except as described above or in Section 2.13(d) of the Amax
Disclosure Letter, there are no authorized, outstanding or
existing:
(i) voting trusts or other agreements or understandings with
respect to the voting of any Amax Shares to which any
Amax Group Member is a party;
(ii) securities issued by any Amax Group Member that are
convertible into or exchangeable for any capital stock of
Amax;
(iii) options, warrants, or other rights to purchase or
subscribe for any capital stock of Amax or securities
convertible into or exchangeable for any capital stock of
Amax, in each case granted, extended or entered into by
any Amax Group Member;
(iv) agreements of any kind to which any Amax Group Member is
party relating to the issuance of any capital stock of
Amax, any such convertible or exchangeable securities, or
any such options, warrants, or rights, or requiring Amax
to register under the Securities Act any of its presently
outstanding securities; or
(v) agreements of any kind which may obligate Amax to issue
or purchase any of its securities.
Section 2.14 Environmental Matters.
Except as to the matters described in Section 2.14 of the Amax Disclosure
Letter, there exists no Environmental Condition which, individually or in the
aggregate, is reasonably likely to have a Material Adverse Effect on Amax.
Section 2.15 Brokers.
Except as set forth in Section 2.15 of the Amax Disclosure Letter, the Amax
Group, their Affiliates, and their respective Advisers have not retained any
broker or finder in connection with the Merger, nor have any of the foregoing
incurred any Liability to any broker or finder by reason of the Merger.
18
Section 2.16 Intercorporate Indebtedness.
As at the date of this Agreement, the total principal amount of indebtedness for
borrowed money owing by the Amax Group to the Significant Shareholder is as set
forth in Section 2.16 of the Amax Disclosure Letter and no amount of past due
interest was owing in respect thereof.
Section 2.17 Reserve Reports and Reserve Estimates.
The reports of proven and probable reserves of Amax summarized in its Annual
Report on Form 10-K for the year ended December 31, 1996 were prepared in all
material respects in accordance with accepted engineering practices and such
reports were, as of their respective dates, in all material respects in
compliance with the requirements applicable to the presentation of such reserves
in documents filed with the SEC.
Section 2.18 Fairness Opinions.
The Special Committee of the Board of Directors of Amax has received an opinion
from SBC Warburg Dillon Read and the Board of Directors of Amax has received an
opinion from Salomon Smith Barney as to the matters set forth therein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF KINROSS AND MERGER CORP.
Except as set forth in the Kinross Securities Documents, each of Kinross
and Merger Corp. hereby represent and warrant as follows to and in favour of
Amax:
Section 3.01 Organization and Good Standing.
(a) Except as set forth in Section 3.01 of the Kinross Disclosure
Letter, Kinross and each Kinross Group Member is a corporation
duly organized, validly existing and in good standing under the
Laws of its jurisdiction of incorporation and is qualified to
transact business and is in good standing as a foreign
corporation in the jurisdictions (which are listed in Section
3.01 of the Kinross Disclosure Letter) where it is required to
qualify in order to conduct its business as presently conducted,
except where the failure to be so qualified would not have a
Material Adverse Effect on Kinross. Except as listed in Section
3.01 of the Kinross Disclosure Letter, there are no subsidiaries
of Kinross and none of Kinross's subsidiaries has any
subsidiaries.
(b) Each Kinross Group Member has the corporate power and authority
to own, lease, or operate its properties and to carry on its
business as now conducted.
(c) Kinross has heretofore delivered or made available to Amax
complete and correct copies of Kinross's Certificate and Articles
of Incorporation and By-laws, as each has been amended and is in
effect on the date hereof.
19
Section 3.02 Consents, Authorizations, and Binding Effect.
(a) Kinross and Merger Corp. may execute, deliver, and perform this
Agreement without the necessity of Kinross or any Kinross Group
Member obtaining any consent, approval, authorization or waiver,
or giving any notice or otherwise, except:
(i) those disclosed in Section 3.02 of the Kinross
Disclosure Letter;
(ii) those, with respect to consents, approvals,
authorizations and waivers, which have been obtained,
are unconditional and are in full force and effect and,
with respect to notices, which have been given on a
timely basis;
(iii) the approval of the issuance of the Kinross Shares
pursuant to the Merger and the transactions contemplated
hereby and by the Related Agreements by the holders of a
majority of the outstanding Kinross Shares present at a
meeting of the Kinross shareholders duly called and held
in accordance with the rules of the TSE and NYSE and
applicable law;
(iv) the filing with the SEC of:
(A) the Registration Statement;
(B) the Joint Proxy Statement; and
(C) such reports and information under the Exchange Act
and the rules and regulations promulgated by the
SEC thereunder, as may be required in connection
with this Agreement and the transactions
contemplated hereby;
(v) the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware;
(vi) such as may be required by state takeover laws;
(vii) such as may be necessary under the HSR Act;
(viii) such as may be required under the Investment Canada Act
and under the Competition Act (Canada); or
(ix) those which, if not obtained or made, would not prevent
or delay the consummation of the Merger or otherwise
prevent Kinross or Merger Corp. from performing its
obligations under this Agreement and would not be
reasonably likely to have a Material Adverse Effect on
Kinross or Merger Corp.
(b) Each of Kinross and Merger Corp. has the full corporate power and
authority to execute this Agreement and to issue the Kinross
Shares contemplated hereby and by the Related Agreements and to
deliver this Agreement, and subject to the approval of a majority
of the holders of the Kinross Shares at the Kinross Shareholders'
Meeting, to perform its obligations hereunder and under the
Related Agreements. Neither Kinross nor any direct or indirect
subsidiary of Kinross beneficially owns (other than pursuant to
this Agreement and the Related Agreements) any Amax Shares or
Amax Preferred Shares.
20
(c) The Board of Directors of Kinross (at a meeting duly called and
held) has by the requisite vote of directors: (i) approved the
Merger, this Agreement, the Related Agreements and the issuance
of Kinross Shares and the Warrant pursuant thereto; and (ii)
directed that the issuance of Kinross Shares and the Warrant
pursuant to this Agreement and the Stockholder Agreement be
submitted for consideration by the holders of Kinross Shares at
the Kinross Shareholders' Meeting and recommended approval of
such issuances.
(d) This Agreement and the Merger have been duly authorized by the
Board of Directors and shareholders of Merger Corp. This
Agreement has been duly executed and delivered by Kinross and
Merger Corp. and constitutes the legal, valid, and binding
obligation of Kinross and Merger Corp., enforceable against each
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 defences and to the discretion of the court
before which any proceeding therefore may be brought.
(e) Except as disclosed in Section 3.02 of the Kinross Disclosure
Letter or referenced in clauses (i) through (ix) of Section
3.02(a) hereof, the execution, delivery, and performance of this
Agreement by Kinross and Merger Corp. will not:
(i) constitute a violation of their respective Certificates
or Articles of Incorporation (or like charter documents)
or By-Laws, each as amended, of any Kinross Group
Member;
(ii) with respect to the Kinross Group, conflict with, result
in the breach of or constitute a default or give to
others a right of termination, cancellation or
acceleration of any obligation under, or the loss of any
material benefit under, any Contract to which any
Kinross Group Member is a party or as to which any of
their respective property is subject which would have a
Material Adverse Effect on Kinross;
(iii) constitute a violation of any Law applicable or relating
to any Kinross Group Member or the businesses of the
Kinross Group except for such violations as would not
have a Material Adverse Effect on Kinross; or
(iv) with respect to the Kinross Group result in the creation
of any Lien upon any of the assets of any Kinross Group
Member, other than such Liens as would not have a
Material Adverse Effect on Kinross.
Section 3.03 Securities Documents; Financial Statements.
Kinross has filed all required documents with the SEC since January 1, 1996 (the
"Kinross SEC Documents" and, together with the documents filed pursuant to the
Canadian Securities Laws, the "Kinross Securities Documents"). As of their
respective dates, the Kinross SEC Documents complied in all material respects
with the then applicable requirements of the Securities Act or the Exchange Act,
as
21
the case may be, and, at the respective times they were filed, none of the
Kinross Securities Documents contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading. Kinross is a reporting issuer under the Canadian
Securities Laws of each of the Provinces of Canada and is not in default of any
requirement of such Canadian Securities Laws. The consolidated financial
statements (including, in each case, any notes thereto) of Kinross included in
the Kinross SEC Documents complied as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto as of their respective dates of filing, were
prepared in accordance with Canadian GAAP applied on a consistent basis during
the period involved (except as may be indicated therein or in the notes thereto)
and fairly presented the consolidated financial position of Kinross and its
consolidated subsidiaries as of the respective dates thereof and the
consolidated cash flows for the periods then ended (subject, in the case of
unaudited statements, to the absence of footnote disclosure and to normal year-
end audit adjustments and to any other adjustments described therein). Except as
disclosed in the Kinross Securities Documents or as required by Canadian GAAP,
Kinross has not, since September 30, 1997, made any change in the accounting
practices or policies applied in the preparation of its financial statements.
Section 3.04 Title and Condition of Assets.
Except as set forth in Section 3.04 of the Kinross Disclosure Letter, to the
knowledge of Kinross, each Kinross Group Member has sufficient title (subject,
in the case of unpatented mining claims located in the United States, to the
paramount title of the United States of America, and including, in the case of
mining concessions, licenses or other governmental permits granting mining
rights on lands in countries other than the United States, the performance of
all material acts and the making of all required payments necessary to obtain
and maintain such concessions, licenses or permits), applying customary
standards in the mining industry, to its operating properties and properties
with proven and probable ore reserves (other than property as to which it is a
lessee, in which case it has a valid leasehold interest), except for such
defects in title known to Kinross that, individually or in the aggregate, would
not be reasonably likely to have a Material Adverse Effect on Kinross.
Notwithstanding the foregoing, no representation or warranty is made as to a
discovery of valuable minerals for any unpatented mining claim located in the
United States. All real and tangible personal property of each Kinross Group
Member is in generally good repair and is operational and usable in the
operation of Kinross, subject to normal wear and tear and technical
obsolescence, repair or replacement, except for such property whose failure to
be in such condition would not be reasonably likely to have a Material Adverse
Effect on Kinross.
Section 3.05 Insurance.
The Kinross Group Members have their respective assets insured against loss or
damage with coverage of a type and in an amount that is consistent with the
types and amounts of insurance maintained by corporations of a size and carrying
on businesses of the type carried on by Kinross and the other Kinross Group
Members.
22
Section 3.06 Litigation and Compliance.
(a) Except as to the matters described in Section 3.06(a) of the
Kinross Disclosure Letter, and except for actions, suits, claims,
and proceedings which are not reasonably likely to have a
Material Adverse Effect on Kinross or where insurance proceeds
will be available to pay in full (subject to any applicable
deductible) any damages awarded as a consequence of any such
action, suit, claim or proceeding:
(i) as of the date of this Agreement, there are no actions,
suits, claims or proceedings, whether in equity or at
law or, to the knowledge of Kinross, any Governmental
investigations pending or threatened against any Kinross
Group Member or with respect to any asset or property
owned, leased or used by any Kinross Group Member; and
(ii) as of the date of this Agreement, there are no actions,
suits, claims or proceedings, whether in equity or at
law or, to the knowledge of Kinross, any Governmental
investigations pending or threatened which question or
challenge the validity of this Agreement or any action
taken or to be taken pursuant to this Agreement.
(b) Each Kinross Group Member is in compliance with and is not in
default or violation under, and has not received notice asserting
the existence of any default or violation under, any Law
applicable to the businesses or operations of the Kinross Group,
including without limitation all Laws relating to occupational
safety or health (but excluding any Environmental Law), except
for noncompliance, defaults, and violations which would not, in
the aggregate, have a Material Adverse Effect on Kinross.
(c) Except as described in Section 3.06(c) of the Kinross Disclosure
Letter, no Kinross Group Member, or material assets of any
Kinross Group Member is subject to any judgment, order or decree
entered in any lawsuit or proceeding which has had, or which is
reasonably likely to have, a Material Adverse Effect on Kinross
or which is reasonably likely to prevent Kinross or Merger Corp.
from performing its obligations under this Agreement.
(d) Except as described in Section 3.06(d) of the Kinross Disclosure
Letter, and except as may be required under any Environmental
Law, each Kinross Group Member has duly filed all reports and
returns required to be filed by it with any Government and
obtained all Governmental permits and licenses and other
Governmental consents which are required in connection with the
business and operations of the Kinross Group, except for such
reports, returns, permits, licenses and consents which if not
obtained or made would not have a Material Adverse Effect on
Kinross.
Section 3.07 Taxes.
Except as described in Section 3.07 of the Kinross Disclosure Letter:
(a) Kinross and each Kinross Group Member has timely filed, or has
caused to be timely filed on its behalf, all Tax Returns required
to be filed by it, and all such Tax Returns are true, complete
and accurate, except to the extent any failure to file or any
inaccuracies in any filed Tax Returns would not, individually or
in the aggregate, have a Material
23
Adverse Effect on Kinross. All Taxes shown to be due on such Tax
Returns, or otherwise owed, have been timely paid, except to the
extent that any failure to pay would not, individually or in the
aggregate, have a Material Adverse Effect on Kinross. Kinross's
most recent financial statements contained in the Kinross
Securities Documents reflect a reserve in accordance with
Canadian GAAP for all Taxes payable by Kinross and the Kinross
Group Members for all taxable periods and portions thereof
through the date of such financial statements. No deficiency with
respect to any Taxes has been proposed, asserted or assessed in
writing against Kinross or any Kinross Group Member, and no
written requests for waivers of the time to assess any such Taxes
are pending, except to the extent any such deficiency or request
for waiver would not, individually or in the aggregate, have a
Material Adverse Effect on Kinross.
(b) There are no assessments or reassessments of Taxes paid by
Kinross that have been issued and are outstanding other than in
the ordinary course of business. No Governmental authority has
challenged or disputed the Taxes paid or payable by Kinross or
any returns, filings or other reports filed under any statute
providing for Taxes which would have a Material Adverse Effect on
Kinross. Kinross has not received any indication from any
Governmental authority that an assessment or reassessment for
additional amounts of Taxes is proposed which would have a
Material Adverse Effect on Kinross. Kinross has not executed or
filed any agreement extending the period for assessment,
reassessment or collection of Taxes which would have a Material
Adverse Effect on Kinross.
Section 3.08 Pension and Other Employee Plans and Agreements.
(a) Section 3.08 of the Kinross Disclosure Letter sets forth all
Employee Plans maintained or contributed to by each Kinross Group
Member, and Kinross has furnished or made available to Amax true
and complete copies of all such Employee Plans as amended and in
effect on the date of this Agreement with copies of all related
trust agreements, annuity contracts, insurance contracts or other
funding instruments, actuarial reports (for the past three
years), financial statements and plan summaries, booklets and
personnel manuals.
(b) To the knowledge of Kinross, except to the extent any of the
following would, individually or in the aggregate, be reasonably
likely to have a Material Adverse Effect on the Kinross Group:
(i) the execution and delivery of this Agreement by Kinross
and the consummation of the transactions contemplated
hereby do not constitute and will not result in any
"prohibited transaction" within the meaning of Section
4.06 of ERISA or Section 4975 of the Tax Code;
(ii) each Kinross Group Employee Plan is duly established
and, where applicable, qualified in accordance with all
applicable Laws and no fact or circumstance, where
applicable, exists which is likely to adversely affect
the qualified status of any Employee Plan which is
permitted or required to be qualified;
(iii) each Kinross Group Employee Plan and any related trust
agreements are currently, and have been in the past, in
compliance in all material respects with
24
the requirements of applicable Laws and applicable
collective bargaining agreements as to the form,
operation, and administration of such plans;
(iv) all returns, reports, notices, and applications relating
to each Kinross Group Employment Plan required by any
Governmental agency have been in all material respects
timely filed;
(v) all contributions or premiums required to be made on or
before the date hereof to or in respect of each Kinross
Group Employee Plan under the terms of such plan or
applicable Law and applicable collective bargaining
agreements have been in all material respects timely
made and no Taxes, penalties or fees are owing or
payable under or in respect of any such plan;
(vi) no Kinross Group Member nor any ERISA Affiliate of any
such Kinross Group Member has incurred any Liability
(except for premiums) to the Pension Benefit Guaranty
Corporation which has not been discharged and will not
incur any such Liability in respect of the Merger;
(vii) there exists no Liability of the Kinross Group in
connection with any former Employee Plan of the Kinross
Group or former Kinross ERISA Affiliate Plan that has
terminated and all procedures for termination of each
such former plan have been properly followed in
accordance with the terms of such former Kinross Group
Employee Plan or any former Kinross ERISA Affiliate Plan
and applicable Law;
(viii) no event has occurred respecting any of the Kinross
Group Employee Plans which would entitle the Pension
Benefit Guaranty Corporation (without the consent of any
Kinross Group Member) to wind-up or terminate any such
Kinross Group Employee Plan, in whole or in part;
(ix) there are no merger or asset transfer applications
pending with any Governmental agency with respect to any
Kinross Group Employee Plan;
(x) none of the Kinross Group Employee Plans requires or
permits a retroactive increase in premiums or payments
and no improvements to any such plan have been promised
to any person;
(xi) none of the Kinross Group Employee Plans is a
"multiemployer plan" (as such term is defined in Section
3(37) of ERISA);
(c) Except as set forth in Section 3.08(c) of the Kinross Disclosure
Letter, neither the execution of this Agreement nor any agreement
referred to or contemplated herein, nor the consummation of the
Merger or the other transactions contemplated by this Agreement,
will: (A) result in any payment (including, without limitation,
severance, unemployment compensation, golden parachute or
otherwise) becoming due under any Kinross Group Employee Plan,
(B) increase any benefits otherwise payable under any Kinross
Group Employee Plan, or (C) result in the acceleration of the
time of payment or vesting of any such benefits; and
25
(d) The most recent actuarial valuation reports prepared in
connection with each of the Employee Plans of the Kinross Group
in respect of which an actuarial valuation report is required to
be prepared have been provided to Amax. The information provided
by members of the Kinross Group to the author of each such
report for the purpose of assisting the author in preparing each
such actuarial valuation report was, at the time it was so
provided, and remains, true, accurate and complete in all
material respects, and each such actuarial valuation report is
in final form and remains unamended. There has been no material
adverse change to the funded status of any of the foregoing
Kinross Group Employee Plans since the date of the foregoing
actuarial valuation reports which would increase the annual
funding liability for such plan by more than $100,000;
(e) Except to the extent any of the following would, individually or
in the aggregate, not be reasonably likely to have a Material
Adverse Effect on the Kinross Group there are no actions, suits,
claims or proceedings, whether in equity or at law, or
Governmental investigations pending or, to the knowledge of
Kinross or Merger Corp., threatened against or with respect to
any Employee Plan of the Kinross Group or any assets of any such
Employee Plan.
(f) Each Foreign Plan of the Kinross Group has been maintained in
compliance with its material terms and with the requirements of
any and all applicable Law and has been maintained, where
required, in good standing with applicable regulatory
authorities; no Kinross Group Member has incurred any
obligations which remain unpaid in connection with the
termination of or withdrawal from any Foreign Plan of the
Kinross Group; the present value of the accrued benefit
liabilities (whether or not vested) under each Foreign Plan of
the Kinross Group that is a pension or retirement plan,
determined as of the end of the most recently ended fiscal year
of the applicable Kinross Group Member on the basis of actuarial
assumptions, each of which is reasonable, did not exceed the
current value of the assets of such Foreign Plan of the Kinross
Group allocable to such benefit liabilities; except in any such
case where the failure to be so maintained, or the incurring of
such obligation or the amount of such excess accrued benefit
liabilities would not, individually or in the aggregate, be
reasonably likely to: (x) have a Material Adverse Effect on
Kinross Group; or (y) materially prejudice the ability of
Kinross to perform its obligations under this Agreement.
Section 3.09 Labor Relations.
(a) Except as described in Section 3.09 of the Kinross Disclosure
Letter, as of the date hereof no employees of any Kinross Group
Member are covered by any collective bargaining agreement.
(b) Except as described in Section 3.09 of the Kinross Disclosure
Letter:
(i) there are no representation questions, arbitration
proceedings, labour strikes, slow-downs or stoppages,
material grievances, or other labour troubles pending
or, to the knowledge of Kinross or Merger Corp.,
threatened as of the date hereof with respect to the
employees of any Kinross Group Member which would have a
Material Adverse Effect on Kinross; and
(ii) to the best of Kinross's knowledge, as of the date
hereof, there are no present or pending applications for
certification (or the equivalent procedure under any
26
applicable Law) of any union as the exclusive bargaining
agent for any employees of any Kinross Group Member.
Section 3.10 Contracts, Etc.
Except as set forth in Section 3.10 of the Kinross Disclosure Letter, all
material Contracts, whether oral or written, to which any Kinross Group Member
is a party or by which any Kinross Group Member is bound are in full force and
effect and:
(a) None of the Kinross Group Members or, to Kinross's best
knowledge, any other party thereto, has breached or is in
default thereunder.
(b) No event has occurred which, with the passage of time or the
giving of notice would constitute such a breach or default.
(c) No claim of material default thereunder has, to Kinross's best
knowledge, been asserted or threatened.
(d) None of the Kinross Group Members or, to Kinross's best
knowledge, any other party thereto is seeking the renegotiation
thereof or substitute performance thereunder, except where such
breach or default, or attempted renegotiation or substitute
performance, individually or in the aggregate, does not have and
would not be reasonably expected to have a Material Adverse
Effect on Kinross.
(e) Except for the contracts, agreements, leases and commitments
listed in Section 3.10 of the Kinross Disclosure Letter, as of
the date hereof, neither Kinross nor any Kinross Group Member is
a party to or bound by:
(i) any material Contract, whether written or oral, which
was not entered into or made in the ordinary course of
its business;
(ii) any contract which imposes material geographic or
territorial limitations on the conduct of business by
Kinross or any Kinross Group Member (excluding customary
area of interest provisions relating to specific
properties and similar restrictions entered into in the
ordinary course of business and which do not have a
significant impact on their ability to conduct business
generally in that geographic area); or
(iii) any joint venture or partnership agreement respecting
its operating properties or properties with proven and
probable ore reserves with a fair market value of more
than $1,000,000.
(f) As of the date hereof, the net hedge and future position of
Kinross is not materially different from that existing on
December 31, 1997.
Section 3.11 Absence of Certain Changes, Etc.
As of the date of this Agreement, and except as described in Section 3.11 of the
Kinross Disclosure Letter and except for any actions required to be performed by
Kinross or Merger Corp. or otherwise permitted pursuant to this Agreement or the
Shareholders Agreements, since September 30, 1997:
27
(a) there has been no Material Adverse Change in the Kinross Group;
(b) no Kinross Group Member has:
(i) sold, transferred, distributed, or otherwise disposed of
or acquired a material amount of its assets, or agreed
to do any of the foregoing, except in the ordinary
course of business;
(ii) prior to the date hereof, made or agreed to make any
material capital expenditure or commitment for additions
to property, plant, or equipment not reflected in the
Interim Kinross Financial Statements or in the capital
budget for the 1998 fiscal year approved by Kinross, a
copy of which has been provided to Amax;
(iii) made or agreed to make any material increase in the
compensation payable to any employee or director, except
for increases made in the ordinary course of business
and consistent with presently existing policies or
agreements or past practice;
(iv) conducted its operations otherwise than in all material
respects in the normal course of business;
(v) entered into any material transaction or material
Contract, or amended or terminated any material
transaction or material Contract, except transactions or
Contracts entered into in the ordinary course of
business;
(vi) effected any material change in the practices followed
by the Kinross Group in calculating bad debts,
contingencies, or other reserves from that reflected in
the Interim Kinross Financial Statements; or
(vii) agreed or committed to do any of the foregoing.
(c) There has not been any declaration, setting aside or payment of
any dividend or other distribution with respect to Kinross'
capital stock other than the payment of dividends in accordance
with the terms of the Kinross Preferred Shares.
Section 3.12 Subsidiaries.
(a) Section 3.01 of the Kinross Disclosure Letter sets forth with
respect to each Kinross Group Member:
(i) its jurisdiction of incorporation or organization; and
(ii) the percentage of each class of its equity securities
owned, directly or indirectly, by Kinross.
(b) Except as set forth in Section 3.01 of the Kinross Disclosure
Letter, all of the outstanding shares of capital stock of each
Kinross Group Member (other than Kinross) owned of record and
beneficially by Kinross are so owned free and clear of all
Liens. Except with respect to the subsidiaries listed in Exhibit
3.01, Kinross does not own, directly or indirectly, any material
equity interest of or in any entity or enterprise
28
organized under the Laws of the United States, any state
thereof, the District of Columbia, Canada, any province thereof,
or any other domestic or foreign jurisdiction.
(c) All outstanding shares of the capital stock of or other equity
interests in each Kinross Group Member (other than Kinross) have
been duly authorized and are validly issued, fully paid and non-
assessable.
(d) Except as described in Section 3.01 of the Kinross Disclosure
Letter, there are no authorized, outstanding or existing:
(i) proxies, voting trusts or other agreements or
understandings with respect to the voting of any capital
stock of any Kinross Group Member (other than Kinross)
to which any Kinross Group Member is party;
(ii) securities issued by any Kinross Group Members that are
convertible into or exchangeable for any capital stock
of any Kinross Group Member (other than Kinross);
(iii) options, warrants, or other rights to purchase or
subscribe for any capital stock of, or securities
convertible into or exchangeable for any capital stock
of, any Kinross Group Member (other than Kinross) in
each case granted, extended or entered into by any
Kinross Group Member;
(iv) agreements of any kind to which any Kinross Group Member
is party relating to the issuance of any capital stock
of any Kinross Group Member (other than Kinross), any
securities, options, warrants, or rights convertible
into or exchangeable for, Kinross Shares;
(v) agreements of any kind to which any Kinross Group Member
is party which may obligate any Kinross Group Member
(other than Kinross) to issue or purchase any of its
securities; or
(vi) agreements to which any Kinross Group Member is party
containing any right of first negotiation or refusal
with respect to the equity securities of any Kinross
Group Member (other than Kinross).
Section 3.13 Capitalization.
(a) At the date hereof, the authorized capital stock of Kinross
consists of an unlimited number of Kinross Shares, of which
126,854,092 Kinross Shares were outstanding as of February 6,
1998 and 384,613 Kinross Preferred Shares, of which 384,613
Kinross Preferred Shares were outstanding as of February 6,
1998. As at the date of this Agreement, 14,668,464 Kinross
Shares are reserved for issuance upon the conversion of
outstanding convertible debentures and 3,175,170 Kinross Shares
are reserved for issuance upon the conversion of the Kinross
Preferred Shares. Section 3.13 of the Kinross Disclosure Letter
sets forth the number of Kinross Shares reserved for issuance
pursuant to the terms of outstanding stock options on the date
hereof.
29
(b) Except as set forth above, or in Section 3.13(b) of the Kinross
Disclosure Letter no shares of capital stock or other voting
securities of Kinross are issued, reserved for issuance or
outstanding.
(c) All outstanding Kinross Shares have been duly authorized and are
validly issued and fully paid and non-assessable, free of pre-
emptive rights.
(d) Except as described above or in Section 3.13(d) of the Kinross
Disclosure Letter, there are no authorized, outstanding, or
existing:
(i) voting trusts or other agreements or understandings with
respect to the voting of any Kinross Shares to which any
Kinross Group Member is a party;
(ii) securities issued by any Kinross Group Member that are
convertible into or exchangeable for any capital stock
of Kinross;
(iii) options, warrants or other rights to purchase or
subscribe for any capital stock of Kinross or securities
convertible into or exchangeable for any capital stock
of Kinross in each case granted, extended or entered
into by any Kinross Group Member;
(iv) agreements of any kind to which any Kinross Group Member
is party relating to the issuance of any capital stock
of Kinross, any such convertible or exchangeable
securities, or any such options, warrants, or rights or
requiring Kinross to register under the Securities Act
any of its presently outstanding securities; or
(v) agreements of any kind which may obligate Kinross to
issue or purchase any of its securities.
Section 3.14 Environmental Matters.
Except as to the matters described in Section 3.14 of the Kinross Disclosure
Letter, there exists no Environmental Condition which, individually or in the
aggregate, is reasonably likely to have a Material Adverse Effect on Kinross.
Section 3.15 Brokers.
Except as set forth in Section 3.15 of the Kinross Disclosure Letter, the
Kinross Group, their affiliates and their respective Advisors have not retained
any broker or finder in connection with the Merger, nor have any of the
foregoing incurred any Liability to any broker or finder by reason of the
Merger.
Section 3.16 Valid Issuance of Kinross Shares.
Upon consummation of the Merger, the Kinross Shares issued hereunder will be
duly and validly authorized and, when issued and delivered in accordance with
the terms and provisions of this Agreement and the Certificate of Merger as
provided for in Article I, will be fully paid and non-assessable. At the
Closing, Kinross will have the power to issue the Kinross Shares hereunder free
and clear of all liens, encumbrances, security agreements, equities, options,
claims, charges, and restrictions, except for generally applicable restrictions
imposed under applicable securities laws.
30
Section 3.17 Reserve Reports and Reserve Estimates.
The reports of proven and probable reserves of Kinross summarized in its Annual
Information Form for the year ended December 31, 1996 were prepared in all
material respects in accordance with accepted engineering practices and such
reports were, as of their respective dates, in all material respects in
compliance with the requirements applicable to the presentation of such reserves
in documents filed with the OSC.
Section 3.18 Ownership of Merger Corp.; No Prior Activities; Assets of Merger
Corp.
(a) Merger Corp. was formed by Kinross solely for the purpose of
engaging in the transactions contemplated hereby.
(b) As of the date hereof and the Effective Time, except as
contemplated hereby, the capital stock of Merger Corp. is and
will be owned 100% by Kinross directly. Further, except as
contemplated hereby, there are not as of the date hereof and
there will not be at the Effective Time any outstanding or
authorized options, warrants, calls, rights, commitments or any
other agreements of any character which Merger Corp. is a party
to, or may be bound by, requiring it to issue, transfer, sell,
purchase, redeem or acquire any shares of capital stock or any
securities or rights convertible into, exchangeable for, or
evidencing the right to subscribe for or acquire, any shares of
stock of Merger Corp.
(c) As of the date hereof and the Effective Time, except for
obligations or liabilities incurred in connection with its
incorporation or organization and the transactions contemplated
thereby and hereby, Merger Corp. has not and will not have
incurred, directly or indirectly through any Subsidiary or
affiliate, any obligations or liabilities or engaged in any
business or activities of any type or kind whatsoever or entered
into any arrangements or arrangements with any Person.
(d) Kinross will take all action necessary to ensure that Merger
Corp. at no time prior to the Effective Time owns any asset
other than an amount of cash necessary to incorporate Merger
Corp. and to pay the expenses of the Merger attributable to
Merger Corp. if the Merger is consummated.
Section 3.19 Cash on Hand.
Without giving effect to the Equity Offering, Kinross has and will at the
Effective Time have readily available to it at least $100,000,000 in cash on
hand or readily marketable securities for application in the manner contemplated
by the Stockholder Agreement.
Section 3.20 Opinions.
The Board of Directors of Kinross has received an opinion from CIBC Wood Gundy
Inc. and an opinion from Merrill Lynch as to the matters respectively set forth
therein.
31
ARTICLE IV
COVENANTS OF AMAX
From and after the date hereof and until the Closing Date (except as
hereinafter otherwise provided), unless Kinross and Merger Corp. shall otherwise
agree in writing:
Section 4.01 Access.
Amax shall permit, and shall use all reasonable efforts to cause each Amax Group
Member, except to the extent such Amax Group Member is subject to contractual
restrictions or restrictions set forth in the organizational documents of such
Amax Group Member which would limit or otherwise restrict its ability to do so,
to permit:
(a) Kinross, Merger Corp. and their Advisers to have reasonable
access at reasonable times to all properties, books, accounts,
records, Contracts, files, correspondence, tax records, and
documents of or relating to the Amax Group including independent
auditors work papers and to discuss such matters with the
executive officers of the Amax Group; Amax shall make available
to Kinross, Merger Corp. and their Advisers a copy of each
report or other document filed with the SEC or pursuant to
Canadian Securities Laws and all other information concerning
its business and properties as Kinross may reasonably request;
and
(b) Kinross and Merger Corp., to conduct, or cause its agents to
conduct, such reasonable reviews, inspections, surveys, tests,
and investigations of the assets of the Amax Group as Kinross or
Merger Corp. deems necessary or advisable, provided such reviews
are conducted at reasonable times and in a reasonable manner.
Section 4.02 Ordinary Course.
Except: (i) as set forth in Section 4.02 of the Amax Disclosure Letter; (ii) to
the extent such an Amax Group Member is subject to contractual restrictions or
restrictions set forth in the organizational documents of such Amax Group Member
which would limit or otherwise restrict its ability to do so; and (iii) for any
actions required to be performed by Amax or otherwise contemplated by this
Agreement or the Stockholder Agreement or approved in advance by Kinross, Amax
shall (and shall cause each Amax Group Member to) conduct its business only in
the ordinary and usual course in all material respects and use all reasonable
efforts to preserve its business organizations intact and its existing relations
with customers, suppliers, employees, and business associates, and Amax shall
not (and shall cause each Amax Group Member not to) do any of the following:
(a) sell or pledge or agree to sell or pledge any capital stock
owned by it in any of its subsidiaries;
(b) amend its Articles or Certificate of Incorporation (or like
charter documents) or By-laws;
(c) subdivide, split, combine, consolidate, or reclassify any of its
outstanding shares of capital stock;
(d) other than in accordance with the terms of the Amax Preferred
Shares, declare, set aside or pay any dividend or make any other
distribution payable in cash, shares, stock,
32
securities or property with respect to any of its shares of
capital stock other than consistent with past practice, and
other than dividends or distributions declared, set aside, paid
or payable by any Amax Group Member (other than Amax) or a
subsidiary of Amax;
(e) repurchase, redeem, or otherwise acquire, directly or
indirectly, any of its capital stock or any securities
convertible into or exchangeable or exercisable into any of its
capital stock other than upon conversion of the Amax Preferred
Shares;
(f) incur, guarantee, assume or modify any additional indebtedness
for borrowed money in an aggregate amount in excess of
$30,000,000 other than in the ordinary course of business or
pursuant to credit facilities and arrangements with the
Significant Shareholder provided, however that any new credit
-------- -------
facility not provided by the Significant Shareholder or any of
its Affiliates shall be provided by a financial institution and
advances thereunder shall not be applied to the reduction of
debt owing to the Significant Shareholder pursuant to the
existing demand loan facility;
(g) enter into any material transaction not in the ordinary course
of its business consistent with past practice;
(h) issue, sell, pledge, dispose of or encumber, or authorize or
propose the issuance, sale, pledge, disposition, or encumbrance
of, any of its capital stock, or any securities convertible into
or exchangeable or exercisable for, or options, puts, warrants,
calls, commitments or rights of any kind to acquire, any of its
shares of capital stock other than:
(i) Amax Shares issued pursuant to the exercise or
conversion of outstanding securities of Amax convertible
into Amax Shares or pursuant to the exercise or
conversion of options outstanding pursuant to Amax's
stock option plans; or
(ii) Amax Shares issued as or with respect to contributions
to or fund transfers within the Amax's 401(k) Plan in
effect on the date hereof;
(i) transfer, lease, license, sell, mortgage, pledge, encumber, or
dispose of any material property or assets other than in the
ordinary and usual course of business consistent with past
practice;
(j) make, whether by merger, consolidation or purchase, any material
acquisition of, or investment in, assets, shares, capital stock
or other securities of any other person or entity other than its
wholly-owned subsidiaries or in the ordinary and usual course of
business consistent with past practice;
(k) except as may be required to satisfy contractual obligations
existing as of the date hereof and the requirements of
applicable Law, establish, adopt, enter into, make, amend in any
material respect, or make any material elections under any
collective bargaining agreement or Employee Plan or enter into
any new or amend in any material respect any existing
employment, consulting or other agreement providing compensation
or benefits to any executive employee or director except for
employment agreements with new employees (other than Amax
corporate staff), entered into in the ordinary course of
33
business which agreements do not provide for the payment of
"golden parachutes" or other amounts in respect of severance
which are triggered by the Merger;
(l) except as may be required to satisfy contractual obligations or
Amax Group Employee Plan obligations existing as of the date
hereof and the requirements of applicable Law: (i) amend any
Amax Group Employee Plan where such amendment would increase any
Amax Group Member's annual or aggregate liability or funding
obligations in connection with such Amax Group Employee Plan by
more than five percent, (ii) terminate or merge any Employee
Plan(s), (iii) transfer assets from any Amax Group Employee
Plan, (iv) extend membership, benefits or coverage under any
Amax Group Employee Plan to any employee who is not currently
eligible to receive such membership, benefits or coverage, (v)
incorporate any "change in control" provision into any Amax
Group Employee Plan, or modify any "change in control" provision
presently contained in any Amax Group Employee Plan [except for
certain clarification amendments to the Amax 1992 Stock Option
Plan, Performance Share Plan and the Key Employees Separation
Plan], (vi) transfer any employee from any Amax Group Member to
any other Amax Group Member in circumstances where such transfer
would increase the Amax Group Members' collective expenses in
connection with the employment of such employee;
(m) implement any change in its accounting principles, practices, or
methods, other than as may be required by generally accepted
accounting principles;
(n) alter (through merger, liquidation, reorganization,
restructuring or in any other fashion) the corporate structure
or ownership of Amax or any Amax Group Member;
(o) withdraw, permit or consent to the removal of any assets of any
of the Employee Plans maintained by any Amax Group Member other
than for the purpose of paying benefits in the ordinary course
and payment of expenses in accordance with past practice and
under the terms of such plan;
(p) take any action that would either:
(i) prevent the Merger from qualifying as a reorganization
within the meaning of Section 368(a) of the Tax Code; or
(ii) cause the Eligible Amax Shareholders to recognize a
taxable gain in the Merger under Section 367(a) of the
Tax Code;
(q) take any action that would prevent the Merger from being
characterized as a "pooling of interests" for the purposes of
Canadian GAAP;
(r) authorize or enter into any agreement or understanding of any
type whatsoever, whether written or oral to take any of the
actions referred to in this Section.
Section 4.03 Insurance.
Amax shall use all reasonable efforts to continue to insure the Amax Group and
all property, real and personal, owned or leased by any Amax Group Member is
insured substantially in the manner and to the extent set forth in Section 2.05;
it being acknowledged and agreed that insofar as such insurance is
34
provided under policies obtained by the Significant Shareholder, such insurance
will be terminated as of the Effective Time.
Section 4.04 Closing Conditions.
Amax shall use all reasonable efforts to cause all of the conditions to the
obligations of Kinross and Merger Corp. under this Agreement to be satisfied on
or prior to the Closing Date (to the extent the satisfaction of such conditions
is within the control of the Amax Group).
Section 4.05 Amax Stockholders' Approval.
Amax shall use all reasonable efforts to obtain its stockholders' approval of
the Merger and, without limitation, its Board of Directors shall specifically
recommend that its stockholders approve the Merger. The Board of Directors of
Amax shall call a stockholders' meeting ("Amax Stockholders' Meeting") to be
held at the earliest practicable date following mailing of the Joint Proxy
Statement to the Amax stockholders for the purpose of voting on the adoption of
the Merger, this Agreement and each of the other transactions contemplated by
this Agreement and the Related Agreements as required by the GCL, the NYSE and
the TSE.
In addition, Amax agrees with, and covenants to Kinross and Merger Corp. that
Amax shall use all reasonable efforts to permit Amax shareholders to effect
Approval by Consent to adopt and approve for purposes of Section 251 of the GCL,
the Merger, this Agreement and each of the other transactions contemplated by
this Agreement and the Stockholder Agreement and to comply with and satisfy as
promptly as practicable any legal, regulatory or stock exchange requirements
that apply to approving this Agreement, the Merger and the other transactions
contemplated by this Agreement by way of Approval by Consent. The Board of
Directors of Amax has resolved that for purposes of an Approval by Consent or
action at a stockholders' meeting, this Agreement is fair to and in the best
interests of Amax and its stockholders and that this Agreement be approved and
adopted and that the Board of Directors of Amax recommends the Merger to the
stockholders of Amax.
Kinross, Merger Corp. and Amax agree that if Amax stockholder adoption and
approval is obtained by Approval by Consent, Amax shall not be obligated to call
the Amax Stockholders' Meeting and all references to the preparation, filing and
mailing of the Joint Proxy Statement shall, unless the context otherwise
requires, be deemed appropriately modified so as to reflect such method of
stockholder adoption and approval.
Section 4.06 Rule 145 Affiliates.
Prior to the Effective Time, Amax shall cause to be delivered to Kinross a list
identifying all persons who were, at the time of the Amax Stockholders' Meeting,
deemed to be a Securities Act Affiliate of Amax. Amax shall use its reasonable
efforts to cause each person who is identified as a possible Securities Act
Affiliate to enter into, prior to the Effective Time, an agreement in the form
attached hereto as Exhibit 4.06 pursuant to which each such Person acknowledges
its responsibilities as such a Securities Act Affiliate.
Section 4.07 No Shop.
(a) From and after the date hereof until the Closing Date, Amax shall
not, and it shall use its best efforts to ensure that no other Amax
Group Member or their respective directors do
35
not, and shall not permit the respective officers, employees,
representatives, and other Advisors of the Amax Group to, directly or
indirectly,
(i) solicit, initiate, or engage in discussions or negotiations with
any person, encourage submission of any inquiries, proposals, or
offers by, or take any other action intended or designed to
facilitate the efforts of any person, other than Kinross,
relating to:
(A) the possible acquisition of, or business combination with,
Amax or any of its material subsidiaries (whether by way of
merger, consolidation, take-over bid, tender offer, purchase
of shares, purchase of assets, or otherwise);
(B) the possible acquisition of any material portion of its or
their shares of capital stock or assets;
(C) any tender offer or exchange offer or other secondary
purchase that, if consummated, would result in any person
(other than the Significant Shareholder) beneficially owning
more than 20% or more of any class of equity securities of
Amax; or
(D) any other transaction, the consummation of which would
reasonably be expected to prevent or materially impede,
interfere with or delay the consummation of the Merger;
(any of the foregoing, a "Competing Proposal"); or
(ii) provide non-public information with respect to Amax or any
Amax Group Member, or afford any access to the properties, books,
or records of the same, to any Person, other than Kinross, that
may wish to propose or pursue a Competing Proposal.
Without limiting the foregoing, it is understood that any violation of the
restrictions set forth in the preceding sentence by any officer, director
or employee or other Advisor or representative of Amax or any of its
subsidiaries shall be deemed to be a breach of this paragraph by Amax.
Amax shall, and shall direct its subsidiaries, directors, officers,
employees, representatives, and other Advisors to, immediately cease any
and all activities, discussions, or negotiations with any parties conducted
heretofore with respect to any of the foregoing.
(b) Neither the Board of Directors of Amax nor any committee thereof shall:
(i) withdraw or modify, or propose to withdraw or modify, in a manner
adverse to Kinross or Merger Corp., the approval or recommendation
by such Board of Directors or any such committee of the Merger or
this Agreement;
(ii) approve or recommend, or propose to approve or recommend, any
Competing Proposal; or
36
(iii) cause or permit Amax or any of its subsidiaries to enter into
any agreement, including an agreement in principle or letter of
intent (any such agreement, a "Transaction Agreement") to
effect a Competing Proposal.
(c) Amax shall promptly advise Kinross orally and in writing of:
(i) any request for information which may relate to a Competing
Proposal,
(ii) any Competing Proposal, or
(iii) any inquiry with respect to or that could lead to any Competing
Proposal.
(d) Nothing contained in this Section 4.07 shall prohibit Amax from taking
and disclosing to its stockholders a position contemplated by Rule
14e-2(a) promulgated under the Exchange Act or from making any legally
required disclosure to the stockholders of Amax provided, however,
that neither Amax nor the Board of Directors of Amax shall withdraw or
modify, or propose to withdraw or modify, its position with respect to
this Agreement or the Merger or approve or recommend, or propose to
approve or recommend, a Competing Proposal (it being understood that
an affirmation of the recommendation will satisfy this proviso).
Section 4.08 Information in Joint Proxy Statement and Canadian Prospectus
None of the information to be supplied by Amax for inclusion or incorporation by
reference in the Registration Statement, Joint Proxy Statement and Canadian
Prospectus will:
(a) in the case of the Registration Statement, at the time it becomes
effective and at the Effective Time, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading;
(b) in the case of the Joint Proxy Statement, at the time of the mailing
of the Joint Proxy Statement and at the time of each meeting, and
(c) in the case of the Canadian Prospectus, at the time of the filing of
the preliminary prospectus and the final prospectus in respect of the
Equity Offering;
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. If at any time prior to the Effective Time any event with respect
to Amax, its officers and directors or any Amax Group Member shall occur that is
required to be described in the Joint Proxy Statement, Amax shall give prompt
notice to Kinross of such event. The Joint Proxy Statement will comply (with
respect to Amax) as to form in all material respects with the provisions of the
Exchange Act.
37
ARTICLE V
KINROSS AND MERGER CORP.'S COVENANTS
From and after the date hereof and until the Closing Date (except as
hereinafter otherwise provided), unless Amax shall otherwise agree in writing:
Section 5.01 Access.
Kinross and Merger Corp. shall permit, and shall use all reasonable efforts to
cause each Kinross Group Member, except to the extent such Kinross Group Member
is subject to contractual restrictions or restrictions set forth in the
organizational documents of such Kinross Group Member which would limit or
otherwise restrict its ability to do so, to permit:
(a) Amax and its Advisers to have reasonable access at reasonable times
to all properties books, accounts, records, Contracts, files,
correspondence, tax records, and documents of or relating to the
Kinross Group including independent auditor's work papers and to
discuss such matters with the executive officers of the Kinross
Group; Kinross shall make available to Amax and its Advisers a copy
of each report or other document filed with the SEC or pursuant to
Canadian Securities Laws and all other information concerning its
business and properties as Amax may reasonably request; and
(b) Amax to conduct, or cause its agents to conduct, such reasonable
reviews, inspections, surveys, tests, and investigations of the
assets of the Kinross Group as Amax deems necessary or advisable
provided such reviews are conducted at reasonable times and in a
reasonable manner.
Section 5.02 Ordinary Course.
Except: (i) as set forth in Section 5.02 of the Kinross Disclosure Letter; (ii)
to the extent such Kinross Group Member is subject to contractual restrictions
or restrictions set forth in the organizational documents of such Kinross Group
Member which would limit or otherwise restrict its ability to do so; and (iii)
for any actions required to be performed by Kinross or Merger Corp. or otherwise
contemplated by this Agreement or the Stockholder Agreement or approved in
advance by Amax, Kinross shall (and shall cause each Kinross Group Member to)
conduct its business only in the ordinary and usual course in all material
respects and use all reasonable efforts to preserve its business organizations
intact and its existing relations with customers, suppliers, employees, and
business associates, and Kinross shall not (and shall cause each Kinross Group
Member not to) do any of the following:
(a) sell or pledge or agree to sell or pledge any capital stock owned by
it in any of its subsidiaries;
(b) amend its Articles or Certificate of Incorporation (or like charter
documents) or By-laws;
(c) subdivide, split, combine, consolidate, or reclassify any of its
outstanding shares of capital stock;
(d) other than in accordance with the Kinross Preferred Shares, declare,
set aside or pay any dividend or make any other distribution payable
in cash, shares, stock, securities or property with respect to any
of its shares of capital stock other than consistent with past
38
practice, and other than dividends or distributions declared, set aside
paid or payable by any Kinross Group Member (other than Kinross) or a
subsidiary of Kinross;
(e) repurchase, redeem, or otherwise acquire, directly or indirectly, any of
its capital stock or any securities convertible into or exchangeable or
exercisable into any of its capital stock except pursuant to the terms of
any securities outstanding as of the date hereof and which are set forth in
Section 5.02 of the Kinross Disclosure Letter which require such
repurchase, redemption, acquisition, or exchange;
(f) enter into any material transaction not in the ordinary course of its
business consistent with past practice;
(g) issue, sell, pledge, dispose of or encumber, or authorize or propose the
issuance, sale, pledge, disposition, or encumbrance of, any of its capital
stock, or any securities convertible into or exchangeable or exercisable
for, or options, puts, warrants, calls, commitments or rights of any kind
to acquire, any of its shares of capital stock other than Kinross Shares or
securities directly or indirectly convertible into or exchangeable or
exercisable for Kinross Shares in connection with the Merger, the Equity
Offering, the issued and outstanding convertible shares and debentures of
Kinross, pursuant to Section 5.02(j) and pursuant to the exercise of
options outstanding under Kinross's stock option plan;
(h) transfer, lease, license, sell, mortgage, pledge, encumber, or dispose of
any property or assets other than in the ordinary course of business
consistent with past practice;
(i) incur, guarantee, assume, or modify any indebtedness or other liability in
an aggregate amount in excess of $15,000,000 other than in the ordinary and
usual course of business consistent with past practice;
(j) make, whether by merger, consolidation or purchase, any material
acquisition of, or investment in, assets, shares, capital stock or other
securities of any other person or entity other than its wholly-owned
subsidiaries provided, however, that Kinross may acquire minority or
-------- -------
majority equity interests in natural resource companies through the
purchase of their issued and outstanding capital stock or acquire interests
in prospective mineral prospects, in either case in consideration of the
issue of Kinross Shares, so long as such transaction will not delay or
prevent the consummation of the transactions contemplated by this Agreement
and the Related Agreements or require an amendment or supplement to the
Registration Statement after the same is declared effective and the
aggregate number of Kinross Shares issued in respect of all such
acquisitions does not exceed 2% of the number of Kinross Shares issued and
outstanding on the date of this Agreement;
(k) except as may be required to satisfy contractual obligations existing as of
the date hereof and the requirements of applicable Law, establish, adopt,
enter into, make, amend in any material respect, or make any material
elections under any collective bargaining agreement or Employee Plan or
enter into any new or amend in any material respect any existing
employment, consulting or other agreement providing compensation or
benefits of any executive employee or director except for employment
agreements with new employees (other than Kinross corporate staff) entered
into in the ordinary course of
39
business, which agreements do not provide for the payment of "golden
parachutes" or other amounts in respect of severance which are
triggered by the Merger;
(l) except as may be required to satisfy contractual obligations or Kinross
Group Employee Plan obligations existing as of the date hereof and the
requirements of applicable Law: (i) amend any Kinross Group Employee
Plan where such amendment would increase any Kinross Group Member's
annual or aggregate liability or funding obligations in connection with
such Kinross Group Employee Plan by more than five percent, (ii)
terminate or merge any Employee Plan(s), (iii) transfer assets from any
Kinross Group Employee Plan, (iv) extend membership, benefits or
coverage under any Kinross Group Employee Plan to any employee who is
not currently eligible to receive such membership, benefits or
coverage, (v) incorporate any "change in control" provision into any
Kinross Group Employee Plan, or modify any "change in control"
provision presently contained in any Kinross Group Employee Plan, (vi)
transfer any employee from any Kinross Group Member to any other
Kinross Group Member in circumstances where such transfer would
increase the Kinross Group Members' collective expenses in connection
with the employment of such employee;
(m) implement any change in its accounting principles, practices, or
methods, other than as may be required by generally accepted accounting
principles;
(n) alter (through merger, liquidation, reorganization, restructuring or in
any other fashion) the corporate structure or ownership of Kinross or
any Kinross Group Member;
(o) withdraw, permit or consent to the removal of any assets of any of the
Employee Plans maintained by any Kinross Group Member other than for
the purpose of paying benefits in the ordinary course and the payment
of expenses in accordance with past practice and under the terms of
such plan;
(p) take any action that would either:
(i) prevent the Merger from qualifying as a reorganization within the
meaning of Section 368(a) of the Tax Code; or
(ii) cause the Eligible Amax Shareholders to recognize a taxable gain in
the Merger under Section 367(a) of the Tax Code;
(q) take any action that would prevent the Merger from being characterized
as a "pooling of interests" for the purposes of Canadian GAAP; or
(r) authorize or enter into any agreement or understanding of any type
whatsoever, whether written or oral to take any of the actions referred
to in this Section.
Section 5.03 Insurance.
Kinross shall use all reasonable efforts to continue to insure the Kinross Group
and all property, real and personal, owned or leased by any Kinross Group Member
is insured substantially in the manner and to the extent set forth in Section
3.05.
40
Section 5.04 Closing Conditions.
Kinross and Merger Corp. shall use all reasonable efforts to cause all of the
conditions to the obligations of Amax under this Agreement to be satisfied on or
prior to the Closing Date (to the extent the satisfaction of such conditions is
within the control of the Kinross Group). Without limiting the foregoing,
Kinross shall use all commercially reasonable efforts to consummate the Equity
Offering and shall provide Amax and the Significant Shareholder with a
reasonable opportunity to comment on any material in any prospectuses, offering,
circulars or other disclosure documents utilized in connection with the Equity
Offering which relates to Amax or any Amax Group Member, the Significant
Shareholder, the Merger or the transactions contemplated by the Related
Agreements and shall not file any such prospectus or offering document or any
amendment or supplement thereto with any securities regulatory authority or
stock exchange or distribute or use the same prior to obtaining the consent of
Amax, which consent may not be unreasonably withheld or delayed.
Section 5.05 Kinross Shareholders' Approval.
The Board of Directors of Kinross shall call a shareholders' meeting ("Kinross
Shareholders' Meeting") to be held at the earliest practicable date following
mailing of the Joint Proxy Statement to the Kinross shareholders for the purpose
of approving the issue of Kinross Shares pursuant to the Merger and the
Stockholder Agreement, and, if required, to approve the Merger. Kinross shall
use its best efforts to obtain its shareholders' approval of the foregoing and,
without limitation, its Board of Directors shall specifically recommend that its
shareholders vote to approve the foregoing, subject only to Section 5.07 hereof.
Section 5.06 Stock Exchange Listing.
Kinross shall use all reasonable efforts to cause the Kinross Shares to be
issued in connection with the Merger, including Kinross Shares issuable upon
exercise of the Substitute Options and upon conversion of the Amax Preferred
Shares and exercise of the Warrant, to be listed on the TSE and the NYSE.
Section 5.07 No Shop.
(a) From and after the date hereof until the Closing Date, Kinross
shall not, and it shall use its best efforts to ensure that no
other Kinross Group Member or their respective directors do not,
and shall not permit the respective officers, employees,
representatives, and other Advisors of the Kinross Group to,
directly or indirectly,
(i) solicit, initiate, or engage in discussions or negotiations
with any person, encourage submission of any inquiries,
proposals, or offers by, or take any other action intended or
designed to facilitate the efforts of any person, other than
Amax, relating to:
(A) the possible acquisition of, or business combination with,
Kinross or any of its material subsidiaries (whether by
way of merger, amalgamation, arrangement, consolidation,
take-over bid, tender offer, purchase of shares, purchase
of assets, or otherwise);
(B) the possible acquisition of any material portion of its or
their shares of capital stock or assets;
41
(C) any take over bid, tender offer or exchange offer or other
secondary purchase that, if consummated, would result in any
person beneficially owning more than 20% or more of any class
of equity securities of Kinross; or
(D) any other transaction, the consummation of which would
reasonably be expected to prevent or materially impede,
interfere with or delay the consummation of the Merger;
(any of the foregoing, a " Kinross Competing Proposal"); or
(ii) provide non-public information with respect to Kinross or any
Kinross Group Member, or afford any access to the properties,
books, or records of the same, to any Person, other than Amax,
that may wish to propose or pursue a Kinross Competing Proposal,
provided, however, that prior to the Kinross Shareholders'
Meeting (as defined in Section 5.05), in response to an
unsolicited bona fide Kinross Competing Proposal that in the good
faith opinion of the Board of Directors of Kinross, based on the
advice of an independent nationally recognized financial advisor
would reasonably be expected to result in a Kinross Superior
Proposal (as defined below), Kinross may: (A) furnish such
information or access with respect to Kinross to the person
making such Kinross Competing Proposal pursuant to a customary
confidentiality agreement with such person, or (B) participate in
negotiations regarding such Kinross Competing Proposal, but in
each case only if (x) the Board of Directors of Kinross
determines in good faith, based on the advice of outside legal
counsel, that such action is necessary in order for such Board to
act in a manner consistent with its fiduciary duties under
applicable law, and (y) Kinross complies with Section 5.07(c)
with respect to such proposal.
Without limiting the foregoing, it is understood that any violation of the
restrictions set forth in the preceding sentence by any officer, director
or employee or other Advisor or representative of Kinross or any of its
subsidiaries shall be deemed to be a breach of this paragraph by Kinross.
Kinross shall and shall direct its subsidiaries and their respective
directors, officers, employees, representatives, and other Advisors to,
immediately cease any and all activities, discussions, or negotiations with
any parties conducted heretofore with respect to any of the foregoing.
(b) Except as set forth in this Section 5.07(b), neither the Board of
Directors of Kinross nor any committee thereof shall:
(i) withdraw or modify, or propose to withdraw or modify, in a manner
adverse to Amax, the approval by such Board of Directors or any
such committee of the Merger or this Agreement or the
transactions contemplated hereby;
(ii) approve or recommend, or propose to approve or recommend, any
Kinross Competing Proposal; or
(iii) cause or permit Kinross or any of its subsidiaries to enter into
any agreement, including an agreement in principle or letter of
intent (any such agreement a "Kinross Transaction Agreement") to
effect a Kinross Competing Proposal.
42
Notwithstanding the foregoing, prior to the Kinross Shareholders'
Meeting if Kinross has received a Kinross Superior Proposal, the Board
of Directors of Kinross may (subject to the other terms of this
Section 5.07(b)): (A) withdraw or modify its recommendation of the
Merger or this Agreement; (B) approve or recommend a Kinross Superior
Proposal; or (C) cause Kinross or any of its subsidiaries to enter
into a Kinross Transaction Agreement to effect a Kinross Superior
Proposal, but in each case only if: (x) the Board of Directors of
Kinross determines in good faith, based on the advice of outside legal
counsel, that such action is necessary in order for such Board to act
in a manner consistent with its fiduciary duties under applicable law,
and (y) Kinross shall have furnished Amax with written notice at least
four business days prior to the date any such actions are proposed to
be taken specifying which actions are proposed to be taken and after
taking into account modifications to this Agreement proposed by Amax
during such four business day period, such Kinross Competing Proposal
would still constitute a Kinross Superior Proposal. In addition, if
Kinross or the Board of Directors of Kinross takes any of the actions
permitted by the preceding sentence with respect to any Kinross
Competing Proposal, then Kinross must, prior to the taking of such
action, pay, or cause to be paid, to Amax the Amax Expenses (as
defined in Section 10.04) and the Amax Termination Fee (as defined in
Section 10.04). The term "Kinross Superior Proposal" shall mean any
bona fide written Kinross Competing Proposal that has the following
characteristics: (1) it is a definitive proposal to acquire, directly
or indirectly, for consideration consisting of cash and/or readily
marketable securities (x) Kinross Shares representing 100% of the
voting power of the outstanding Kinross Shares, or (y) all or
substantially all of the assets and liabilities of Kinross; (2) the
terms of such proposal in the good faith judgement of the Board of
Directors of Kinross (based on the written opinion of an independent
nationally recognized financial advisor) provide consideration
imputing aggregate post-transaction value to Kinross's shareholders
that is superior to the consideration provided by the Merger (after
taking into account any modifications to this Agreement proposed by
Amax), and (3) the transactions envisioned by such proposal, in the
good faith judgement of the Board of Directors of Kinross, based on
the advice of an independent nationally recognized financial advisor,
are readily financeable, are reasonably likely to be approved by the
shareholders of Kinross in accordance with applicable Law and are
reasonably likely to be consummated without unreasonable delay
compared to the transactions contemplated by this Agreement.
(c) Kinross shall promptly advise Amax orally and in writing of:
(i) any request for information which may relate to a Kinross
Competing Proposal,
(ii) any Kinross Competing Proposal,
(iii) any inquiry with respect to or that could lead to any Kinross
Competing Proposal, or
(iv) any action taken in accordance with clauses (A) or (B) of the
proviso to Section 5.07(a)(ii), including in each case the
material terms and conditions of such request, Kinross Competing
Proposal, inquiry or action, the identity of the person making
any such request, Kinross Competing Proposal or inquiry or with
respect to which such action is taken and whether or not Kinross
believes any
43
Kinross Competing Proposal so reported is or could result in a
Kinross Superior Proposal. Kinross will keep Amax fully and
timely informed of the status and details (including amendments
or proposed amendments) of any such request, Kinross Competing
Proposal, inquiry or action and any restrictions relating
thereto.
(d) Nothing contained in this Section 5.07 shall prohibit the Board of
Directors of Kinross from distributing a director's circular in
response to a take over bid in accordance with Section 99 of the
Securities Act (Ontario) and the equivalent provisions of other
Canadian Securities Laws provided, however, that neither Kinross
nor the Board of Directors of Kinross shall, except as permitted by
Section 5.07(b), withdraw or modify, or propose to withdraw or
modify, its position with respect to this Agreement or the Merger
or approve or recommend, or propose to approve or recommend, a
Kinross Competing Proposal (it being understood that an affirmation
of the recommendation will satisfy this proviso).
Section 5.08 Information in Registration Statement and Joint Proxy Statement.
Kinross covenants that none of the information to be supplied by Kinross for
inclusion or incorporation by reference in the Registration Statement or the
Joint Proxy Statement will: (a) in the case of the Registration Statement, at
the time it becomes effective and at the Effective Time, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; or (b) in the case of the Joint Proxy Statement, at the time of the
mailing of the Joint Proxy Statement and at the time of each meeting, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. If at any time prior to the Effective Time any event with respect
to Kinross, its officers and directors or any Kinross Group Member shall occur
that is required to be described in the Joint Proxy Statement, Kinross shall
give prompt notice to Amax of such event. The Joint Proxy Statement will comply
(with respect to Kinross) as to form in all material respects with the
provisions of the Exchange Act.
Section 5.09 Compliance with Canadian Securities Laws.
Kinross covenants that the preliminary and final short form prospectuses
relating to the Equity Offering (the "Canadian Prospectus") will be filed with
the securities regulatory authorities in each of the Provinces of Canada and
will comply as to form in all material respects with applicable Canadian
Securities Laws and, as at the date of each Canadian Prospectus, will contain
full, true and plain disclosure of all material facts relating to the securities
issued thereunder. Kinross represents and warrants that the Equity Offering
will be effected in such a manner that no offering materials will be required to
be filed with the SEC in respect thereof.
ARTICLE VI
OTHER COVENANTS OF THE PARTIES
Section 6.01 Consents and Notices.
Promptly after the date hereof and, if necessary, for a reasonable time after
the Closing Date:
44
(a) The Parties shall use all reasonable efforts, and the Parties shall
cooperate with each other to obtain, all consents, waivers, approvals,
and authorizations, in addition to those set forth in clause (b) below
which may be necessary to effect the Merger and the transactions
contemplated by the Stockholder Agreement, including, without
limitation, obtaining those consents, waivers, approvals, and
authorizations described in Section 8.04 of the Amax Disclosure Letter
and Section 7.04 of the Kinross Disclosure Letter;
(b) Each of Amax and Kinross will promptly execute and file, or join in the
execution and filing of, any application or other document that may be
necessary in order to obtain the authorization, approval or consent of
any Governmental Entity which may be reasonably required, or which the
other party may reasonably request in connection with the consummation
of the transactions contemplated by this Agreement. Each of Amax and
Kinross will use reasonable efforts to obtain promptly all such
authorizations, approvals and consents. Without limiting the generality
of the foregoing, as promptly as practicable after the execution of
this Agreement, each of Amax and Kinross shall file with the Federal
Trade Commission (the "FTC") and the Antitrust Division of the
Department of Justice (the "DOJ"), a pre-merger notification report
under the HSR Act and shall make such filings as are necessary under
the Investment Canada Act and the Competition Act (Canada).
Section 6.02 Joint Proxy Statement and Registration Statement; Equity Offering.
(a) Amax and Kinross shall promptly prepare and file with the SEC a joint
proxy statement/prospectus and information circular (together with any
amendments or supplements thereto, the "Joint Proxy Statement") and
Kinross shall prepare and file with the SEC a registration statement on
Form F-4 (the "Registration Statement"), of which the Joint Proxy
Statement will form a part. Each of Kinross and Amax shall use all
reasonable efforts to have the Registration Statement declared
effective under the Securities Act as promptly as practicable after
such filing. As promptly as practicable after the Registration
Statement shall have become effective, each of Kinross and Amax shall
mail the Joint Proxy Statement to its respective stockholders or
shareholders. Kinross shall also take any action (other than qualifying
to do business in any jurisdiction in which it is currently not so
qualified) required to be taken under any applicable state securities
laws in connection with the issuance of Kinross Shares in the Merger
and the issuance of the Warrant Shares and shall take all action
required under Canadian Securities Laws in order for the issuance of
Kinross Shares pursuant to the Merger (including the Kinross Shares
issuable upon exercise of the Substitute Options, upon conversion of
the Amax Preferred Shares and upon exercise of the Warrant) to be
exempt from the prospectus delivery requirements and resale
restrictions of applicable Canadian Securities Laws, and Amax shall
furnish all information concerning Amax and the holders of Amax Shares
as may be reasonably requested in connection with any such action.
(b) Kinross covenants to Amax, and Amax covenants to Kinross and Merger
Corp., that all filings and applications for exemptions required by
Canadian Securities Laws to be made by Kinross or Amax, as applicable,
in the various jurisdictions in Canada shall be made in connection with
the Joint Proxy Statement and the Registration Statement.
(c) Amax shall use all reasonable efforts to cause "comfort" letters of
Price Waterhouse LLP or other nationally recognized certified public
accounting firm to be delivered to
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Kinross, dated the date of the Joint Proxy Statement and addressed
to Kinross and Merger Corp., in form and substance reasonably
satisfactory to Kinross and reasonably customary in scope and
substance for letters delivered by independent public accountants
in connection with transactions such as those contemplated by this
Agreement.
(d) Kinross shall use all reasonable efforts to cause "comfort"
letters of Deloitte & Touche or other nationally recognized
certified public accounting firm to be delivered to Amax dated the
date of the Joint Proxy Statement, and addressed to Amax in form
and substance reasonably satisfactory to Amax and reasonably
customary in scope and substance for letters delivered by
independent public accountants in connection with transactions
such as those contemplated by this Agreement.
Section 6.03 Press Releases.
Before issuing any press release or otherwise making any public statements with
respect to the Merger and the transactions contemplated by the Related
Agreements, Kinross, Merger Corp. and Amax shall consult with each other and
shall undertake reasonable efforts to agree upon the terms of such press
release, and shall not issue any such press release or make any such public
statement prior to such consultation, except as may be required by applicable
Law or by obligations pursuant to any listing agreement with any stock exchange
or national securities exchange.
Section 6.04 Tax Representation Letters.
For purposes of the tax opinions described in Section 7.05 and Section 8.05 of
this Agreement, each of Amax and Kinross shall provide, representation letters
reasonably customary in scope and substance, each dated as of the date that is
two business days prior to the date the Joint Proxy/Registration Statement is
mailed to shareholders of Amax and reissued as of the Closing Date.
Section 6.05 Transfer Taxes.
Kinross and Amax shall cooperate in the preparation, execution and filing of all
returns, applications or other documents regarding any real property transfer,
stamp, recording, documentary or other taxes (including, without limitation, any
New York State Real Estate Transfer Tax) and any other fees and similar taxes
which become payable in connection with the Merger (collectively, "Transfer
--------
Taxes"). From and after the Effective Time, Amax shall pay or cause to be paid,
- -----
without deduction or withholding from any amounts payable to the holders of Amax
Shares, all Transfer Taxes.
Section 6.06 Indemnification of Directors and Officers.
(a) From and after the Effective Time, Kinross shall, and shall cause
the Surviving Corporation to, indemnify, defend and hold harmless
the present and former officers, directors and employees of Amax
and any of its subsidiaries, whether any such Person is or was an
officer, director or employee of Amax or any of its subsidiaries,
or is or was serving at the request of Amax as an officer, director
or employee or agent of another Person, against all losses,
expenses, claims, damages or liabilities arising out of actions or
omissions occurring on or prior to the Effective Time (including,
without limitation, the transactions contemplated by this
Agreement) to the full extent permitted or required under
applicable law (and shall also advance expenses as incurred to the
fullest extent permitted under applicable law, provided that the
Person to whom expenses are
46
advanced provides an undertaking to repay such advances if it is
ultimately determined that such Person is not entitled to
indemnification). Kinross and Merger Corp. agree that all rights to
indemnification, including provisions relating to advances of expenses
incurred in defense of any action, suit or proceeding, whether civil,
criminal, administrative or investigative (each, a "Claim"), existing
in favour of the present or former directors, officers, employees,
fiduciaries and agents of Amax or any of its subsidiaries, whether any
such Person is or was an officer, director or employee of Amax or any
of its subsidiaries, or is or was serving at the request of Amax as an
officer, director or employee or agent of another Person
(collectively, the "Indemnified Parties") as provided in Amax's
Certificate of Incorporation or By-Laws or pursuant to other
agreements, or certificates of incorporation or By-Laws or similar
documents of any of Amax's subsidiaries, as in effect as of the date
hereof, with respect to matters occurring through the Effective Time,
shall survive the Merger and shall continue in full force and effect
for a period of not less than six years from the Effective Time;
provided, however, that all rights to indemnification in respect of
any Claim asserted, made or commenced within such period shall
continue until the final disposition of such Claim. Kinross shall
cause to be maintained in effect for not less than six years after the
Effective Time the current policies of directors' and officers'
liability insurance maintained by Amax and Amax's subsidiaries with
respect to matters occurring on or prior to the Effective Time,
provided, however, that (i) Kinross may substitute therefor policies
of at least the same coverage with insurers of comparable credit
quality containing terms and conditions which are no less advantageous
to the Indemnified Parties and (ii) Kinross shall not be required to
pay an annual premium for such insurance in excess of two times the
last annual premium paid prior to the date hereof, but in such case
shall purchase as much coverage as possible for such amount.
(b) This Section 6.06 is intended to benefit and be enforceable by the
Indemnified Parties and shall be binding on all successors and assigns
of Kinross, Merger Corp., and Amax and the Surviving Corporation.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF KINROSS AND MERGER CORP.
The obligations of Kinross and Merger Corp. to consummate the Merger
are subject to the satisfaction of the following conditions on or prior to the
Closing Date, each of which may be waived by Kinross and Merger Corp.:
Section 7.01 Representations and Warranties.
The representations and warranties of Amax set forth in Article II qualified as
to materiality shall be true and correct, and the representations and warranties
not so qualified shall be true and correct in all material respects as of the
date of this Agreement and on the Closing Date as if made on the Closing Date,
except for such representations and warranties made expressly as of a specified
date, which shall be true and correct in all material respects as of such date;
and Kinross and Merger Corp. shall have received a certificate signed on behalf
of Amax by an executive officer thereof to such effect dated as of the Closing
Date.
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Section 7.02 Compliance with Covenants.
Amax shall have performed and complied in all material respects with all
covenants and agreements required by this Agreement to be performed or complied
with by Amax prior to or on the Closing Date and shall have received
certificates signed on behalf of Amax by an executive officer thereof to such
effect. Amax and the Significant Shareholder shall have performed and complied
in all material respects with all covenants and agreements required by the
Related Agreements to be performed or complied with by Amax or the Significant
Shareholder, as the case may be, on or prior to the Closing Date.
Section 7.03 No Material Adverse Change.
There shall not have occurred any Material Adverse Change in the Amax Group
since the date of this Agreement.
Section 7.04 Consents.
The consents, waivers, approvals, and authorizations expressly designated in
Section 7.04 of the Kinross Disclosure Letter as required to be obtained as a
condition to Closing shall have been obtained.
Section 7.05 Tax Opinion.
Kinross shall have received an opinion of counsel to Kinross, dated the Closing
Date, to the effect that the Merger will be treated for United States Federal
income tax purposes as a reorganization within the meaning of Section 368(a) of
the Tax Code, that each of Kinross, Merger Corp. and Amax will be a party to
that reorganization within the meaning of Section 368(b) of the Tax Code and
that the Eligible Kinross Shareholders will not recognize a taxable gain under
Section 367(a) of the Tax Code; it being understood that in rendering such
opinion, such tax counsel shall be entitled to rely upon representations
provided by the parties hereto and certain shareholders of Kinross in the
representation letters referred to in Section 6.04.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF AMAX
The obligation of Amax to consummate the Merger is subject to the
satisfaction of the following conditions on or prior to the Closing Date, each
of which may be waived by Amax:
Section 8.01 Representations and Warranties.
The representations and warranties of Kinross and Merger Corp. set forth in
Article III qualified as to materiality shall be true and correct, and the
representations and warrantees not so qualified shall be true and correct in all
material respects as of the date hereof and on the Closing Date as if made on
the Closing Date, except for such representations and warranties made expressly
as of a specified date which shall be true and correct in all material respects
as of such date, and Amax shall have received a certificate signed on behalf of
Kinross by an executive officer thereof to such effect dated as of the Closing
Date.
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Section 8.02 Compliance with Covenants.
Kinross and Merger Corp. shall have performed and complied in all material
respects with all covenants and agreements required by this Agreement to be
performed or complied with by Kinross or Merger Corp. prior to or on the Closing
Date and shall have received certificates signed on behalf of Kinross and
Merger Corp. by an executive officer thereof in the case of Kinross and by the
President of Merger Corp. to such effect. Kinross and the Significant
Shareholder shall have performed and complied in all material respects with all
covenants and agreements required by the Related Agreements to be performed or
complied with by Kinross and the Significant Shareholder, as the case may be,
prior to the Closing Date.
Section 8.03 No Material Adverse Change.
There shall not have occurred any Material Adverse Change in the Kinross Group
since the date of this Agreement.
Section 8.04 Consents.
The consents, waivers, approvals, and authorizations expressly designated in
Section 8.04 of the Amax Disclosure Letter as required to be obtained as a
condition to Closing shall have been obtained.
Section 8.05 Tax Opinion.
Amax shall have received an opinion of counsel to Amax, dated the Closing Date,
to the effect that the Merger will be treated for United States Federal income
tax purposes as a reorganization within the meaning of Section 368(a) of the Tax
Code, that each of Kinross, Merger Corp. and Amax will be a party to that
reorganization within the meaning of Section 368(b) of the Tax Code and that the
Eligible Amax Shareholders will not recognize a taxable gain under Section
367(a) of the Tax Code; it being understood that in rendering such opinion, such
tax counsel shall be entitled to rely upon representations provided by the
parties hereto and certain stockholders of Amax in the representation letters
referred to in Section 6.04.
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF AMAX AND KINROSS
The obligations of Amax and Kinross to consummate the Merger are subject to
the satisfaction of the following conditions on or prior to the Closing Date,
each of which may be waived only with the consent in writing of Amax and
Kinross:
Section 9.01 Equity Offering.
The Equity Offering shall have been completed in accordance with the terms of
the letter from CIBC Wood Gundy Inc. to Kinross dated the date of this
Agreement, a copy of which has been delivered to Amax concurrent with the
execution and delivery hereof, and Kinross shall be entitled to receive at the
Effective Time from escrow, aggregate gross proceeds of at least (Canadian)
$140,000,000 (prior to giving effect to the underwriters' over-allotment option)
at a discount to market and with underwriting fees payable which are not, in
either case, in excess of those set forth in the said letter.
49
Section 9.02 No Injunctions.
No temporary restraining order, preliminary injunction, permanent injunction or
other order preventing the consummation of the Merger shall have been issued by
any federal, state, or provincial court (whether domestic or foreign) having
jurisdiction and remain in effect.
Section 9.03 Stock Exchange Approval - Kinross.
There shall have been authorized for listing on the NYSE and TSE, subject to
official notice of issuance and other normal conditions, the Kinross Shares
issuable pursuant to the Merger and the Stockholder Agreement, upon conversion
of the Amax Preferred Shares, exercise of the Warrants and exercise of the
Substitute Options and Kinross shall have obtained the approval of the holders
of a majority of the Kinross Shares present in person or by proxy at the Kinross
Shareholders' Meeting to approve such issuances of Kinross Shares.
Section 9.04 Shareholder Approval - Amax.
This Agreement and the Merger shall have been adopted and/or approved by the
stockholders of Amax in accordance with the GCL, the policies of the NYSE, the
TSE, Amax's Certificate of Incorporation and By-Laws and applicable Law.
Section 9.05 Securities Filings.
Prior to the first date upon which the Joint Proxy Statement is mailed to the
Amax stockholders and the Kinross shareholders, the SEC shall have declared the
Registration Statement effective, and any required approvals or exemption orders
of state or provincial securities administrators shall have been obtained and
appropriate filings made. On the Closing Date, no stop order, cease trade order
or similar restraining order that has been entered by the SEC, the OSC or any
other state or provincial securities administrator in relation to the Kinross
Shares or the Amax Shares shall still be in effect.
Section 9.06 No Litigation.
There shall not be pending or threatened any suit, action or proceeding by any
Governmental entity, before any court or governmental authority, agency or
tribunal, domestic or foreign, that has a significant likelihood of success,
seeking to restrain or prohibit the consummation of the Merger or any of the
other transactions contemplated by this Agreement or seeking to obtain from
Kinross or Merger Corp. any damages that are material in relation to Kinross,
Amax and their subsidiaries taken as a whole.
Section 9.07 Completion of Transactions.
The transactions contemplated by the Stockholder Agreement to occur on or prior
to the Effective Time shall have been consummated or shall be completed
simultaneously with the completion of the Merger except to the extent any such
failure results from a breach by the party purporting to rely on this condition.
50
ARTICLE X
CLOSING AND TERMINATION
Section 10.01 Closing.
The Closing shall take place at such place and on such date as Amax and Kinross
may agree, which date, subject to fulfilment or waiver of the conditions set
forth in Articles VII, VIII and IX (other than such conditions as can only be
fulfilled at the Closing) shall be no later than the second business day
following the day on which the last of the conditions set forth in Articles VII,
VIII and IX (other than such conditions as can only be fulfilled at the Closing)
shall have been fulfilled or waived, or at such other time and place as Kinross
and Amax shall agree.
Section 10.02 Termination of this Agreement.
This Agreement may be terminated at any time prior to the Effective Time,
whether before or after approval of any matters presented in connection with the
Merger by the shareholders of Amax or Kinross:
(a) By mutual written consent of Kinross and Amax.
(b) By either Kinross or Amax if there has been a breach of any of the
representations, warranties, covenants and agreements on the part of the
other (the "Breaching Party") set forth in this Agreement, which breach
has or is likely to result in the failure of the conditions set forth in
Section 7.01, 7.02, 8.01 or 8.02 as the case may be to be satisfied and
in each case has not been cured within fifteen business days following
receipt by the Breaching Party of notice of such breach from the non-
breaching party (the "Non-Breaching Party").
(c) By either Kinross or Amax if any permanent order, decree, ruling or
other action of a court or other competent authority restraining,
enjoining or otherwise preventing the consummation of the Merger shall
have become final and non-appealable.
(d) By either Kinross or Amax if the Merger shall not have been completed by
August 31, 1998 (the "Termination Date").
(e) By Kinross if:
(i) the Board of Directors of Amax, or any committee thereof,
withdraws or modifies in a manner adverse to Kinross or Merger
Corp. its approval or recommendation of this Agreement or the
Merger or approves or recommends a Competing Proposal or resolves
to do any of the foregoing, or
(ii) Amax shall have entered into a Transaction Agreement to effect a
Competing Transaction, or
(iii) unless prior approval is given by way of Approval by Consent, (A)
the Amax Stockholders' Meeting or any other meeting of the Amax
stockholders called for the purpose of voting on the Merger or the
transactions contemplated hereby shall have been convened, (B)
Kinross shall have voted all Amax Shares over
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which it has voting power to approve the Merger and such
transactions, and (C) the Amax stockholders shall have failed to
approve the Merger and such transactions for purposes of GCL Section
251, or
(iv) Amax wilfully fails to take any action within its power required by
the terms of, or wilfully takes any action prohibited by the terms
of, Section 4.05 or Section 4.07(b); provided, however, that a right
of termination pursuant to this clause (iv) shall only arise if
within five Business Days of written notice of the asserted breach to
Amax, Amax has not cured or taken substantial steps to cure such
breach, or
(v) Amax is unable to comply with Section 4.05 or Section 4.07(b) hereof
but Kinross is not entitled to terminate this Agreement pursuant to
Section 10.02(e)(iv);
it being understood that the foregoing shall in no way limit the obligations of
Amax under Section 4.05 or Section 4.07 hereof or, subject to the proviso to the
final sentence of Section 10.03, Kinross's right to relief for breaches of
Section 4.05 or Section 4.07.
(f) By Amax if:
(i) the Board of Directors of Kinross or any committee thereof withdraws
or modifies in a manner adverse to Amax its approval of this
Agreement or the Merger or approves or recommends a Kinross Competing
Proposal or resolves to do any of the foregoing;
(ii) Kinross shall have entered into a Kinross Transaction Agreement to
effect a Kinross Competing Proposal; or
(iii) the Kinross shareholders do not approve the issuance of Kinross
Shares contemplated by Section 9.03 of this Agreement and the
Stockholder Agreement at the Kinross Shareholders' Meeting or any
other meeting of the Kinross Shareholders called for the purpose of
voting on the issuance of Kinross Shares pursuant to the Merger and
the Stockholder Agreement.
(g) By Kinross if:
(i) Kinross enters into a Kinross Transaction Agreement in a manner
permitted by Section 5.07(b); and
(ii) Kinross has previously paid or simultaneously with terminating pays
Amax all Amax Expenses and the Amax Termination Fee in cash and
otherwise complies with the provisions of Section 5.07(b).
(h) By Amax or Kinross at any time on or after June, 30, 1998 if:
(i) Kinross has not at the time of termination received and retained
proceeds of at least Canadian $140,000,000 and otherwise consummated
the transactions contemplated by the Equity Offering in accordance
with the terms thereof; or
52
(ii) the application of the net proceeds of the Equity Offering at
the Effective Time in the manner contemplated by the Canadian
Prospectus shall have become incapable of completion.
Subject to Section 10.03 and Section 10.04 hereof, in the event of termination
of this Agreement and abandonment of the Merger pursuant to this Article X, no
party hereto (or any of its directors or officers) shall have any liability or
other obligation to any other party to this Agreement, except that nothing
herein will relieve any party from liability for any breach by such party prior
to termination of any covenant or agreement set forth in this Agreement.
Section 10.03 Termination Fee and Expenses Kinross.
In the event:
(a) Kinross terminates this Agreement pursuant to Section 10.02(e)(i),
Section 10.02(e)(ii) or Section 10.02(e)(iv); or
(b) Kinross terminates this Agreement pursuant to Section 10.02(e)(iii),
such right to terminate arose due to a willful breach within the
Stockholders' (as defined in the Stockholder Agreement) power of the
Stockholder Agreement by the Stockholders resulting in the failure or
inability of the Stockholders or the inability of Kinross to vote
sufficient Amax Shares to approve the Merger and the transactions
contemplated by this Agreement for purposes of GCL Section 251 and
within 12 months of termination of this Agreement any Amax Group
Member or the Significant Shareholder enters into an agreement to
effect an Alternative Transaction or an Alternative Transaction is
consummated; or
(c) Kinross terminates this Agreement pursuant to Section 10.02(e)(iii)
(other than in the circumstances to which clause (b) of this Section
10.03 applies) or 10.02(e)(v) and within 12 months of termination of
this Agreement any Amax Group Member or the Significant Shareholder
enters into an agreement to effect an Alternative Transaction or an
Alternative Transaction is consummated;
then, unless theretofore paid, Amax shall promptly (but not later than the First
Business Day following termination or, in the case of clause (b), the date of
entry into or consummation of the applicable Alternative Transaction) pay to
Kinross (by wire transfer of immediately available funds) a fee (the "Kinross
Termination Fee") of US$16,000,000 and shall reimburse Kinross as promptly as
practicable after such amount becomes payable (which, in the case of clause (b)
or (c), shall be at the time of the entry into or consummation of the applicable
Alternative Transaction) for all out-of-pocket costs up to a maximum of
US$8,000,000 (the "Kinross Expenses") incurred by Kinross in connection with the
negotiation, preparation, execution and delivery of this Agreement and the
preparations to complete the Merger including, without limitation, any
commission payable to CIBC Wood Gundy in respect of the Equity Offering and the
fees and expenses of Kinross's Advisors provided, however, that in the event of
a payment pursuant to clause (c) of this Section 10.03, instead of payment of
the Kinross Termination Fee and the Kinross Expenses, Kinross shall only be
entitled to reimbursement of the Kinross Expenses up to a maximum of
US$8,000,000. The amount of Kinross Expenses payable in accordance with this
Section 10.03 shall be the amount set forth in an estimate delivered by Kinross
at the time Kinross Expenses become payable subject to upward or downward
adjustment as provided in the next sentence. In the event that Kinross's actual
out-of-pocket costs exceed such estimate, the amount of any such excess shall be
payable upon demand, and in the event that Kinross's actual costs are less than
the
53
amount of such estimate, Kinross shall promptly refund such lesser amount. If
Amax certifies to Kinross that Amax reasonably believes that within two days the
Kinross Expenses will become payable hereunder, then Kinross shall immediately
provide Amax with its best estimate of the Kinross Expenses.
For purposes of the foregoing, "Alternative Transaction" means (i) the sale,
assignment, lease, conveyance, disposition or transfer, directly or indirectly,
in any transaction or series of related transactions of all or substantially all
the assets of Amax or (ii) any transaction or series of transactions that
results in any person or group (other than the Significant Shareholder or any of
its Affiliates) obtaining beneficial ownership (as such term is used in Exchange
Act Rule 13d-3, except that (A) a person will be deemed to have "beneficial
ownership" of all Amax Shares that such person has the right to acquire, whether
such right to acquire is exercisable immediately or only after the passage of
time and (B) any determination of beneficial ownership shall treat as
outstanding all Amax Shares issuable in respect of indebtedness outstanding
under the Credit Agreement dated as of March 19, 1996, by and between Amax and
the Significant Shareholder), of greater than 50% of the Amax Shares; it being
understood that if an Alternative Transaction is consummated, or any agreement
is entered into to effect an Alternative Transaction, through a series of
related transactions, an Alternative Transaction shall be deemed to have
occurred on the earlier of the date of the first of such transactions or the
entering into of such agreement.
Any obligation to pay a Termination Fee and reimburse expenses is not intended
by any Party as a penalty nor is it intended to limit Kinross's right to such
recovery of other damages it may sustain as a result of any breach by Amax of
this Agreement; provided, however, that with respect to clause (c) of this
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Section 10.03 only, Amax's obligation to reimburse the Kinross Expenses is in
lieu of any damages or any other payment which Amax might otherwise be obliged
to pay Kinross as a result of the events contemplated by such clause (c).
Section 10.04 Termination Fee and Expenses - Amax.
In the event :
(a) this Agreement is terminated by Amax pursuant to Section
10.02(f)(iii); or;
(b) Amax terminates this Agreement in accordance with Section
10.02(f)(i) or Section 10.02(f)(ii); or
(c) Kinross terminates this Agreement in accordance with Section
10.02(g);
then Kinross shall promptly (but not later than the First Business Day following
termination) pay to Amax (by wire transfer of immediately available funds) a fee
(the "Amax Termination Fee") of US$16,000.000 in the aggregate and shall
reimburse as promptly as practicable Amax for all out-of-pocket costs up to a
maximum of US$8,000,000 (the "Amax Expenses") incurred by Amax in connection
with the negotiation, preparation, execution and delivery of this Agreement and
the preparations to complete the Merger including, without limitation, the fees
and expenses of Amax's Advisors.
The amount of Amax Expenses payable in accordance with this Section 10.04 shall
be the amount set forth in an estimate delivered by Amax at the time Amax
Expenses become payable subject to upward or downward adjustment as provided in
the next sentence. In the event that Amax's actual out-of-pocket costs exceed
such estimate, the amount of any such excess shall be payable upon demand, and
in the event that Amax's actual costs are less than the amount of such estimate,
Amax shall promptly refund such lesser amount. If Amax certifies to Kinross
that Amax reasonably believes that within two days the
54
Amax Expenses will become payable hereunder, then Amax shall immediately provide
Kinross with its best estimate of the Amax Expenses.
Any obligation to pay a Termination Fee and reimburse expenses is not intended
by any Party as a penalty nor is it intended to limit Amax's right to such
recovery of other damages it may sustain as a result of any breach by Kinross of
this Agreement.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Further Actions.
From time to time, as and when requested by any Party, the other Parties shall
execute and deliver, and use all reasonable efforts to cause to be executed and
delivered, such documents and instruments and shall take, or cause to be taken,
such further or other actions as may reasonably requested in order to:
(a) carry out the intent and purposes of this Agreement;
(b) effect the Merger (or to evidence the foregoing); and
(c) consummate and give effect to the other transactions, covenants, and
agreements contemplated by this Agreement.
Section 11.02 Expenses.
Except as otherwise specifically provided herein, Amax, Kinross and Merger Corp.
shall each bear their own legal fees and other costs and expenses with respect
to the negotiation, execution, and the delivery of this Agreement and the
consummation of the Merger.
Section 11.03 Entire Agreement.
This Agreement, which includes the Exhibits hereto and the other documents,
agreements, and instruments executed and delivered pursuant to or in connection
with this Agreement, contains the entire Agreement among the Parties with
respect to the Merger and, except as expressly provided herein, supersedes all
prior arrangements or understandings with respect thereto.
Section 11.04 Descriptive Headings.
The descriptive headings of this Agreement are for convenience only and shall
not control or affect the meaning or construction of any provision of this
Agreement.
Section 11.05 Notices.
All notices or other communications which are required or permitted hereunder
shall be in writing and sufficient if delivered personally or sent by
telecopier, nationally recognized over-night courier, or registered or certified
mail, postage prepaid, addressed as follows:
(a) If to Amax:
55
9100 East Mineral Circle
P.O. Box 6940
Englewood, Colorado USA 80155
Attention: President
Telephone: (303) 643-5507
Fax: (303) 643-5500
with a copy to the General Counsel of Amax, at the address set
forth above.
(b) If to Kinross or Merger Corp.:
5700 Scotia Plaza
40 King Street West
Toronto, Ontario M5H 3Y2
Attention: Chairman
Telephone: (416) 365-5123
Fax: (416) 363-6622
with a copy to:
Smith Lyons
5800 Scotia Plaza
40 King Street West
Toronto, Ontario M5H 3Y2
Attention: Cameron Mingay
Telephone: (416) 369-7200
Fax: (416) 369-7250
Any such notices or communications shall be deemed to have been received: (i)
if delivered personally or sent by telecopier (with transmission confirmed) or
nationally recognized overnight courier, on the date of such delivery; or (ii)
if sent by registered or certified mail, on the third Business Day following the
date on which such mailing was postmarked. Any Party may by notice change the
address to which notices or other communications to it are to be delivered or
mailed.
Section 11.06 Governing Law.
(a) This Agreement shall be governed by and construed in accordance
with the Laws of the State of Delaware (other than the choice of
law principles thereof), except that any representations and
warranties with respect to real and tangible property shall be
governed by and construed in accordance with the Laws of the
jurisdiction where such property is situated if other than in the
State of Delaware.
(b) Any action, suit, or other proceeding initiated by Amax, Kinross,
or Merger Corp. against the other under or in connection with
this Agreement may be brought in any
56
federal or state court in the State of Delaware, as the Party
bringing such action, suit, or proceeding shall elect, having
jurisdiction over the subject matter thereof, Amax, Kinross, and
Merger Corp. hereby submit themselves to the jurisdiction of any
such court for the purpose of any such action and agree that
service of process on them in any such action, suit, or
proceeding may be effected by the means by which notices are to
be given to it under this Agreement
Section 11.07 Assignability.
This Agreement shall be binding upon and shall enure to the benefit of and be
enforceable by the Parties and their respective successors and assigns, provided
that this Agreement shall not be assignable otherwise than by operation of law
by any Party without the prior written consent of the other Parties, and any
purported assignment by any Parties without the prior written consent of the
other Party shall be void.
Section 11.08 Employee Benefit Plan.
Nothing in this agreement shall be construed so as to limit the right of any
Kinross Group Member, Amax Group Member or the Surviving Corporation to amend,
modify merge, consolidate, terminate or replace the Employee Plans maintained by
any of them, in whole or in part, at any time at or following the Closing Date,
provided that no such amendment, modification, merger, consolidation,
termination or replacement shall operate to reduce the vested benefits under
such plans accrued to the date of such amendment, modification, merger,
consolidation, termination or replacement.
Section 11.09 Remedies.
The Parties acknowledge that the remedy at law for any breach of the obligations
undertaken by the Parties is and shall be insufficient and inadequate and that
the Parties shall be entitled to equitable relief, in addition to remedies at
law. In the event of any action to enforce the provisions of this Agreement,
each of the Parties waive the defense that there is an adequate remedy at law.
The Parties acknowledge that the Amax Shares and Kinross Shares are unique.
Without limiting any remedies any Party may otherwise have, in the event any
other Party refuses to perform its obligations under this Agreement, the Parties
shall have, in addition to any other remedy at law or in equity, the right to
specific performance.
Section 11.10 Waivers and Amendments.
Any waiver of any term or condition of this Agreement, or any amendment or
supplementation of this Agreement, shall be effective only if in writing. A
waiver of any breach or failure to enforce any of the terms or conditions of
this Agreement shall not in any way affect, limit, or waive a Party's rights
hereunder at any time to enforce strict compliance thereafter with every term or
condition of this Agreement. Amax agrees, for the benefit of the Significant
Shareholder, that it will not (i) enter into any amendment to this Agreement
that would alter or change any of the terms and conditions of this Agreement,
(ii) waive any condition set forth in Article VIII or IX of this Agreement, or
(iii) consummate the Merger after a time at which it would be entitled to
terminate this Agreement pursuant to Section 10.02 (without regard to any
amendment of such Section not approved by the Significant Shareholder) without
the consent of the Significant Shareholder.
57
Section 11.11 Third-Party Rights.
Other than pursuant to Section 1.10, Section 6.06 and Section 11.10,
notwithstanding any other provision of this Agreement, this Agreement shall not
create benefits on behalf of any stockholder or employee of the Amax Group or
the Kinross Group, any third party or any other Person (including without
limitation any broker or finder, notwithstanding the provisions of Section 2.15
and Section 3.15) and this Agreement shall be effective only as between the
Parties, their successors and permitted assigns.
Section 11.12 Illegalities.
In the event that any provision contained in this Agreement shall be determined
to be invalid, illegal, or unenforceable in any respect for any reason, the
validity, legality, and enforceability of any such provision in every other
respect and the remaining provisions of this Agreement shall not, at the
election of the Party for whose benefit the provision exists, be in any way
impaired.
Section 11.13 Currency.
Except as otherwise set forth herein, all references to amounts of money in this
Agreement are to United States Dollars.
58
Section 11.14 Counterparts.
This Agreement may be executed in any number of counterparts, each of which will
be an original as regards any party whose signature appears thereon and all of
which together will constitute one and the same instrument. This Agreement will
become binding when one or more counterparts hereof, individually or taken
together, will bear the signatures of all the parties reflected hereon as
signatories.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the day and year first above written.
KINROSS GOLD CORPORATION
By: _______________________________________
Name:
Title:
KINROSS MERGER CORPORATION
By: _______________________________________
Name:
Title:
AMAX GOLD INC.
By: _______________________________________
Name:
Title:
59
SCHEDULE A
CERTAIN DEFINITIONS
"1996 Amax Financial Statements" shall mean the audited consolidated balance
sheet of Amax and its subsidiaries as of December 31, 1996, with the related
audited consolidated statements of income and retained deficits and of cash
flows for the fiscal year ended as of such date (together with the related notes
and schedules thereto), which financial statements contain a letter from
reporting thereon.
"1996 Kinross Financial Statements" shall mean the audited consolidated
balance sheet of the Kinross Group as of December 31, 1996, with the related
audited consolidated statements of income and retained deficits and of cash
flows for the fiscal year ended as of such date (together with the related notes
and schedules thereto), which financial statements contain a letter from
reporting thereon.
"Advisers" when used with respect to any Person shall mean such Person's
directors, officers, employees, representatives, agents, counsel, accountants,
advisers, engineers, and consultants.
"Affiliate" shall mean as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person and, if such Person is an individual, any member of the immediate family
(including parents, spouse, children and grandchildren) of such individual and
any trust whose principal beneficiary is such individual or one or more members
of such immediate family and any Person who is controlled by any such member or
trust. As used in this definition, "control" (including, with its correlative
meanings, "controlled by" and "under common control with") shall mean
possession, directly or indirectly, of power to direct or cause the direction of
the management or policies (whether through the ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"Agreement" shall mean this Merger Agreement, as it may be amended or
supplemented at any time and from time to time after the date hereof.
"Amax Disclosure Letter" means a letter dated the date of this Agreement
and delivered by Amax to Kinross concurrently with the execution of this
Agreement.
"Amax Group" shall mean and include Amax and the other Amax Group Members.
"Amax Group Employee Plan" shall have the meaning ascribed in Section 2.08.
"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 Amax beneficially owns or controls, directly
or indirectly, more than 50% of the equity, voting rights, profit interests,
capital or other similar interest thereof and that: (a) owns or operates
producing properties or properties with proven and probable ore reserves with a
fair market value of more than $1,000,000; or (b) has cash or other liquid
assets with a fair market value of more than $1,000,000.
"Amax Preferred Shares" means the $3.75 Series B Convertible Preferred Stock,
$1.00 par value per share, of Amax;
"Amax SEC Documents" shall have the meaning ascribed in Section 2.03.
60
"Amax Shares" shall have the meaning ascribed in the Recitals.
"Amax Stock Option" means an option granted pursuant to Amax's 1992 Stock
Option Plan or Stock Grant Plan for Non-Employee Directors which is outstanding
as of the Effective Time.
"Amax Stockholders' Meeting" shall have the meaning ascribed in Section 4.05.
"Approval by Consent" shall have the meaning ascribed in Section 2.02.
"Average Closing Price" shall have the meaning ascribed in Section 1.11.
"Breaching Party" shall have the meaning ascribed in Section 10.02.
"Business Day" shall mean any day on which commercial banks are not authorized
or required to close in Toronto, Ontario, Canada and New York, New York, U.S.A.
"Canadian GAAP" shall mean generally accepted accounting principles in Canada,
consistently applied.
"Canadian Prospectus" shall have the meaning ascribed in Section 5.09.
"Canadian Securities Laws" means the Securities Act (or equivalent
legislation) in each of the Provinces of Canada and the respective regulations
under such legislation together with applicable published policy statements,
national instruments and memoranda of understanding of the Canadian Provincial
Securities Administrators and the securities regulatory authorities in such
provinces.
"Certificate" shall have the meaning ascribed in Section 1.13(a).
"Certificate of Merger" shall have the meaning ascribed in Section 1.05.
"Closing" shall mean the consummation of the Merger in accordance with the
provisions of this Agreement.
"Closing Date" shall mean the date on which the Closing occurs.
"Competing Proposal" shall have the meaning ascribed in Section 4.07.
"Constituent Corporations" shall have the meaning ascribed in Section 1.02.
"Contract" shall mean any contract, lease, agreement, instrument, license,
commitment, order, or quotation, written or oral.
"Credit Agreement" means the Revolving Credit Agreement dated as of April 15,
1994 made between Amax and the Significant Shareholder as amended by an amending
agreement dated as of March 10, 1995.
"Effective Time" shall have the meaning ascribed in Section 1.05.
"Employee Plans" shall mean all plans, arrangements, agreements, programs,
policies or practices, whether oral or written, formal or informal, funded or
unfunded, maintained for employees, including, without limitation:
61
(a) any employee benefit plan (as defined in Section 3(3) of ERISA) or
material fringe benefit plan (as defined in Section 6039D of the Tax
Code);
(b) any retirement savings plan, pension plan or compensation plan, including,
without limitation, any defined benefit pension plan, defined contribution
pension plan, group registered retirement savings plan or supplemental
pension or retirement income plan;
(c) any bonus, profit sharing, deferred compensation, incentive compensation,
stock compensation, stock purchase, hospitalization, health, drug, dental,
legal disability, insurance (including without limitation unemployment
insurance), vacation pay, severance pay or other benefit plan, arrangement
or practice with respect to employees or former employees, individuals
working on contract, or other individuals providing services of a kind
normally provided by employees; and
(d) where applicable, all statutory plans, including, without limitation, the
Canada or Quebec Pension Plans.
"Environmental Condition" shall mean and include the generation,
discharge, emission, or release into the environment (including without
limitation ambient air, surface water, groundwater or land), spill, receiving,
handling, use, storage, containment, treatment, transportation, shipment or
disposition prior to the Closing of any Hazardous Substance by any Person (or
their predecessors) as to which Remedial Action required under any Environmental
Laws or as to which any Liability is currently or in the future imposed on any
Person based on the actions or omissions prior to the Closing of any Person (or
their predecessors) with respect to any Hazardous Substance or reporting with
respect thereto.
"Environmental Laws" shall mean Laws regulating or pertaining to the
generation, discharge, emission or release into the environment (including
without limitation ambient air, surface water, groundwater or land), spill,
receiving, handling, use, storage, containment, treatment, transportation,
shipment, disposition or remediation or clean-up of any Hazardous Substance, as
such Laws are amended and in effect as of the date hereof, including without
limitation the following Laws of the United States: the Clean Air Act; the Clean
Water Act; the Comprehensive Environmental Response, Compensation and Liability
Act of 1980; the Resource Conservation and Recovery Act of 1976; and the Toxic
Substances Control Act.
"Equity Offering" shall mean the offering and sale by Kinross during the
period between the date hereof and the closing of subscription rights in
accordance with the letter from CIBC Wood Gundy Inc. to Kinross dated the date
hereof, a copy of which has been delivered to Amax concurrent with the execution
and delivery of this Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" of any entity shall mean any other entity that, together
with such entity would be treated as a single employer under Section 414(b),
(c), (m) or (o) of the Tax Code.
"ERISA Affiliate Plan" means an Employee Plan, which is (a) a "pension plan"
within the meaning of Section 3(2) of ERISA; and (b) maintained or contributed
to by an ERISA Affiliate of any entity.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
62
"Exchange Agent" shall have the meaning ascribed in Section 1.13(a).
"Exchange Fund" shall have the meaning ascribed in Section 1.13(a).
"Exchange Ratio" shall have the meaning ascribed in Section 1.06.
"Exploration Joint Venture Agreement" means the Exploration Joint Venture
Agreement effective January 1, 1994 made between Amax and the Significant
Shareholder, as amended by an amending agreement dated December 29, 1995.
"Foreign Plan" shall mean any plan, fund (including, without limitation, any
superannuation fund) or other similar program established or maintained outside
the United States of America primarily for the benefit of employees residing
outside the United States of America, which plan, fund or other similar program:
(a) provides for retirement income or other employee benefits for such employees
or a deferral of income for such employees in contemplation of retirement; and
(b) is not subject to ERISA or the Tax Code where applicable. "Foreign Plans"
shall include, without limitation, the Canada or Quebec Pension Plans.
"GCL" shall mean the General Corporation Law of the State of Delaware.
"Government" shall mean:
(a) the government of the United States, Canada, or any other foreign country;
(b) the government of any state, province, county, municipality, city, town,
or district of the United States, Canada, or any other foreign country;
and any multi-county district; and
(c) any ministry, agency, department, authority, commission, administration,
corporation, bank, court, magistrate, tribunal, arbitrator,
instrumentality, or political subdivision of, or within the geographical
jurisdiction of, any government described in the foregoing clauses (a) and
(b).
"Governmental" shall mean pertaining to any Government.
"Hazardous Substance" shall include petroleum products, hazardous substances,
hazardous waste, or hazardous materials, or pollutants or contaminants, as such
terms are defined in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980; the Resource Conservation and Recovery Act of 1976; or
any other Environmental Law (including any foreign Environmental Law); all as
amended and in effect as of the date hereof.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
"Income Tax" shall mean any Tax based on or measured by income (including
without limitation based on net income, gross income, income as specifically
defined, earnings, profits or selected items of income, earnings or profits);
and any interest, Penalties and additions to tax with respect to any such tax
(or any estimate or payment thereof).
"Interim Amax Balance Sheet" shall mean the unaudited consolidated balance
sheet included in the Interim Amax Financial Statements.
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"Interim Amax Financial Statements" shall mean the unaudited financial
statements of Amax dated as of September 30, 1997.
"Interim Kinross Balance Sheet" shall mean the unaudited consolidated balance
sheet included in the Interim Kinross Financial Statements.
"Interim Kinross Financial Statements" shall mean the unaudited financial
statements of Kinross dated as of September 30, 1997.
"Investor Agreement" means the agreement between Kinross and the Significant
Shareholder entered into at the time of execution of this Agreement and dated
the date of this Agreement;
"Joint Proxy Statement" shall have the meaning ascribed in Section 6.02.
"Kinross Competing Proposal" shall have the meaning ascribed in Section 5.07.
"Kinross Disclosure Letter" means the letter dated the date of this agreement
and delivered by Kinross to Amax concurrent with the execution of this
Agreement.
"Kinross Group" shall mean and include Kinross and the other Kinross Group
Members.
"Kinross Group Member" shall mean and include Kinross, Merger Corp., and any
corporation, partnership or company in which Kinross beneficially owns or
controls, directly or indirectly, more than 50% of the equity, voting rights,
profit interest, capital or other similar interest thereof or any joint venture
in which Kinross has an interest and which in each case: (a) owns or operates
producing properties or properties with proven and probable ore reserves with a
fair market value of more than $1,000,000; or (b) has cash or other liquid
assets with a fair market value of more than $1,000,000.
"Kinross Preferred Shares" means the redeemable, retractable preferred shares
of Kinross.
"Kinross SEC Documents" shall have the meaning ascribed in Section 3.03.
"Kinross Securities Documents" shall have the meaning ascribed in Section
3.03.
"Kinross Shareholders' Meeting" shall have the meaning ascribed in Section
5.05.
"Kinross Shares" shall have the meaning ascribed in the Recitals.
"Kinross Transaction Agreement" shall have the meaning ascribed in Section
5.07.
"Law" shall mean any of the following of, or issued by, any Government, in
effect on or prior to the date hereof, including any amendment, modification or
supplementation of any of the following from time to time subsequent to the
original enactment, adoption, issuance, announcement, promulgation or granting
thereof and prior to the date hereof: any statute, law, act, ordinance, code,
rule or regulation of any writ, injunction, award, decree, judgment or order.
"Liability" of any Person shall mean and include:
(a) any right against such Person to payment, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured;
64
(b) any right against such Person to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether or
not such right to any equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or
unsecured; and
(c) any obligation of such Person for the performance of any covenant or
agreement (whether for the payment of money or otherwise).
"Liens" shall mean liens, encumbrances, licenses, claims, security interests,
mortgages, pledges, charges, escrows, options or rights of first refusal or
offer.
"Material Adverse Change" or "Material Adverse Effect" shall mean, with
respect to Amax, Kinross, the Amax Group or the Kinross Group a material adverse
change in, or material adverse effect on, the business, properties, assets,
liabilities, results of operations or financial condition of the Amax Group or
Kinross Group (as applicable) taken as a whole. The foregoing shall not include
any change or effect attributable to changes in the economy (of the United
States, Canada, or any other country) generally, changes in the industries in
which the applicable Group engages, changes in metal prices or seasonality of
the businesses of the Group.
"Material Tangible Personal Property" shall mean any item of machinery,
equipment or apparatus which is or may be used in the conduct of exploration or
mining activities which has a book value of at least $250,000.
"Merger" shall have the meaning ascribed in Section 1.02.
"Non-Breaching Party" shall have the meaning ascribed in Section 10.02.
"OSC" means the Ontario Securities Commission.
"Parties" and "Party" means the parties to this Agreement.
"Penalty" shall mean any civil or criminal penalty (including any interest
thereon), fine, levy, lien, assessment, charge, monetary sanction or payment, or
any payment in the nature thereof, of any kind, required to be made to any
Government under any Law.
"Permitted Liens" shall mean Liens arising out of the ordinary course of
business which do not, individually or in the aggregate, materially detract from
the use, value or enjoyment (in the ordinary course of business as presently
conducted) of the assets which are the subject of such Liens.
"Person" shall mean any corporation, partnership, limited liability company or
partnership, joint venture, trust, unincorporated association or organization,
business, enterprise or other entity; any individual; and any Government.
"Registration Statement" shall have the meaning ascribed in Section 6.02.
"Related Agreements" means the Stockholder Agreement and the Investor
Agreement.
"Remedial Action" shall mean any investigation, feasibility study, monitoring,
testing, sampling, removal (including without limitation removal of underground
storage tanks), restoration, clean-up, remediation, collective action, closure,
site restoration, remedial response or remedial work with respect to any
Environmental Condition.
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"SEC" shall mean the Securities and Exchange Commission of the United
States.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securities Act Affiliate" shall mean any affiliate of a Person for
purposes of Rule 145 of the Securities Act.
"Stockholder Agreement" means the agreement among Kinross, Merger Corp.
the Significant Shareholder , certain of its subsidiaries and Amax entered into
at the time of execution of this Agreement and dated the date of this Agreement.
"Significant Shareholder" means Cyprus Amax Minerals Company.
"subsidiary" shall mean, with respect to a specified corporation, any
corporation of which more than fifty per cent (50%) of the outstanding shares
ordinarily entitled to elect a majority of the Board of Directors thereof
(whether or not shares of any other class or classes shall or might be entitled
to vote upon the happening of any event or contingency) are at the time owned
directly or indirectly by such specified corporation, and shall include any
corporation in like relation to a subsidiary.
"Substitute Option" shall have the meaning ascribed to such term in
Section 1.10.
"Surviving Corporation" shall have the meaning ascribed in Section 1.02.
"Tax" shall mean any tax, levy, charge or assessment imposed by or due
any Government, together with any interest, Penalties, and additions to tax
relating thereto, including without limitation, any of the following:
(a) any Income Tax;
(b) any franchise, sales, use and value added tax or any license or
withholding tax; any payroll, employment, excise, severance,
stamp, occupation, premium, windfall profits, alternative or
add-on minimum tax; and any customs duties or other taxes;
(c) any "trust fund" tax under Subtitle C, Chapter 24A of the Tax
Code;
(d) any tax on property (real or personal, tangible or intangible,
based on transfer or gains);
(e) any estimate or payment of any of tax described in the foregoing
clauses (a) through (d); and
(f) any interest, Penalties and additions to tax with respect to any
tax (or any estimate or payment thereof) described in the
foregoing clauses (a) through (e).
"Tax Code" shall mean the Internal Revenue Code of 1986, as amended, and
the rules and regulations promulgated thereunder.
"Tax Return" shall mean all returns, amended returns and reports
(including elections, declarations, disclosures, schedules, estimates and
information returns) required to be supplied to a Tax authority.
"Termination Date" shall have the meaning ascribed to such term in
Section 10.02(d).
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"Termination Fee" shall have the meaning ascribed in Section 10.03.
"Transaction Agreement" shall have the meaning ascribed in Section 4.07.
"U.S. GAAP" shall mean generally accepted accounting principles in the
United States consistently applied.
"Warrant" means the warrant to purchase Kinross Shares issued by Kinross
to the Significant Shareholder.
"Warrant Shares" means the Kinross Shares to be issued on exercise of
the Warrant.
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