APPENDIX C
STOCK PURCHASE AGREEMENT
Stock Purchase Agreement dated as of April 15, 1994 among Amax Gold Inc., a
Delaware corporation ("AGI") and Cyprus Amax Minerals Company, a Delaware
corporation (the "Investor").
Whereas, the parties have previously entered into that certain letter
agreement dated February 11, 1994 as extended by a letter agreement dated March
7, 1994 (the "Commitment Letter") providing for, among other things, agreed
upon share purchase prices and the preparation of definitive documents to
implement the terms thereof;
Whereas, this Stock Purchase Agreement is one of the definitive documents
contemplated in the Commitment Letter that implements the agreement of the
parties therein;
Whereas, as of the date hereof, AGI is authorized by its Certificate of
Incorporation to issue capital stock consisting of 210,000,000 shares, of which
200,000,000 shares are shares of its Common Stock, par value $0.01 per share
(the "Common Stock"); and
Whereas, the Investor desires to purchase from AGI, and AGI desires to sell
to the Investor, 3,000,000 shares of Common Stock at a purchase price of $6.888
per share, as such price was established in the Commitment Letter;
Now Therefore, in consideration of the premises and of the mutual covenants
and agreements hereinafter set forth, the parties hereto agree, intending to be
legally bound, as follows:
1. Purchase of Subscription Shares. Subject to the terms and conditions
herein set forth, the Investor hereby subscribes for, and agrees to purchase,
and AGI agrees to issue and sell, 3,000,000 shares of Common Stock (the shares
of Common Stock subscribed for pursuant to this Agreement being collectively
referred to herein as the "Subscription Shares") at a purchase price of $6.888
per share.
2. Closing.
(a) The closing (the "Closing") of the purchase provided for in Section 1
shall take place at 10:00 a.m., Denver time, on the fifteenth (15th)
business day after the date upon which the Subscription Shares have been
accepted for listing by the New York Stock Exchange, or at such other date
and time as the parties may agree. The Closing shall occur at the offices
of the Investor, 9100 East Mineral Drive, Englewood, Colorado 80112. The
date and time of the Closing are referred to herein as the "Closing Date".
Should the Closing not occur on or before January 4, 1995, this Agreement
shall expire unless extended by mutual agreement.
(b) At the Closing, AGI will deliver to the Investor a certificate or
certificates evidencing the Subscription Shares purchased by the Investor,
registered in the Investor's name and bearing appropriate restrictive
legends, against delivery by the Investor to AGI of the total purchase
price of $20,664,000, which price shall be applied immediately by AGI to
reduce the indebtedness of AGI to the Investor under that certain demand
promissory note dated July 21, 1993 (the "AGI Note") with the payments
first to be applied against interest, if any, and then against principal.
At the Closing, the Investor will mark the AGI Note to evidence payment in
the amount of $20,664,000 against delivery by AGI to the Investor of
certificates evidencing the Subscription Shares.
(c) Each party shall bear its own expenses incurred in connection with
the transactions contemplated by this Agreement or otherwise associated
with the Closing.
3. Representations and Warranties of AGI. AGI represents and warrants that:
(a) AGI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. This Agreement has been
duly authorized, executed and delivered by AGI and is
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a valid and binding obligation of AGI, enforceable against AGI in
accordance with its terms subject only to the approvals that may be
required by the applicable stock exchange for the listing of the
Subscription Shares including, without limitation, the approval of a
majority of AGI's shareholders for the issuance of such Subscription
Shares, if so required as a consideration to such listing.
(b) When certificates evidencing the Subscription Shares have been
delivered against payment therefor as provided herein, such Subscription
Shares will be duly authorized, validly issued, fully paid and
nonassessable.
4. Purchase for Investment; Other Representations and Warranties of
Investor. The Investor represents and warrants that:
(a) This Agreement has been duly authorized, executed and delivered by
the Investor and is a valid and binding obligation of the Investor,
enforceable against the Investor in accordance with its terms.
(b) The Investor acknowledges that the offering and sale of the
Subscription Shares are intended to be exempt from registration under the
Securities Act of 1933, as amended (the "Securities Act"). In furtherance
thereof, the Investor represents and warrants to AGI that:
(i) The Investor is an accredited investor within the meaning of
Regulation D promulgated under the Securities Act ("Regulation D") and,
if there should be any change in such status prior to the Closing Date,
the Investor will immediately inform AGI of such change;
(ii) The Investor is aware of the merits and risks of an investment
in the Subscription Shares to be purchased pursuant hereto by the
Investor and, due to its knowledge and experience in financial and
business matters, is capable of evaluating, and has evaluated, the
merits and risks of such investment; and
(iii) The Investor has been given the opportunity to ask questions
of, and receive answers from, AGI concerning the terms and conditions
of the offering of the Subscription Shares to be purchased by the
Investor and other matters pertaining to an investment in the
Subscription Shares, and has been given the opportunity to obtain such
additional information necessary to evaluate the merits and risks of an
investment in the Subscription Shares to be purchased by the Investor
to the extent AGI possesses such information or can acquire it without
unreasonable effort or expense, and has not been furnished any offering
material in connection with the offering and purchase of the
Subscription Shares.
(c) The Investor has been advised that the Subscription Shares have not
been registered under the Securities Act, or any state securities or blue
sky laws and, therefore, cannot be resold unless they are registered under
such laws or unless an exemption from registration thereunder is available.
The Investor is purchasing the Subscription Shares for its own account for
investment, and not with a view to, or for resale in connection with, the
distribution thereof, and has no present intention of distributing or
reselling any of the Subscription Shares. In making the foregoing
representation, the Investor is aware that it must bear, and the Investor
is able to bear, the economic risk of such investment for an indefinite
period of time.
(d) The Investor acknowledges that AGI is entering into this Agreement in
reliance upon the Investor's representations and warranties in this
Agreement, including, without limitation, those set forth in this Section
4.
5. Demand Registration Rights. After issuance of the Subscription Shares, the
Investor may make one or more written requests to AGI (a "Demand") for
registration under and in accordance with the provisions of the Securities Act
of all or part (but not less than 1,000,000 shares per Demand) of the shares of
Common Stock issued to the Investor pursuant to this Agreement ("Registrable
Shares"). Each such request shall specify the aggregate number of Registrable
Shares proposed to be registered and the intended method of disposition
thereof.
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(ii) Upon receipt of a Demand, AGI shall use its best efforts to effect
such registration to permit the sale of Registrable Shares in accordance
with the intended method of disposition thereof and pursuant thereto, AGI
shall as expeditiously as possible:
(a) execute and deliver all such instruments and documents and do or
cause to be done all such other acts and things as may be necessary or,
in the opinion of the Investor, advisable to register such Registrable
Shares under the provisions of the Securities Act, and to cause the
registration statement relating thereto to become effective and to
remain effective for such period as prospectuses are required by law to
be furnished, and to make all amendments and supplements thereto and to
the related prospectus which, in the opinion of the Investor, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the SEC applicable
thereto;
(b) use its best efforts to qualify the Registrable Shares under the
applicable state securities or "Blue Sky" laws and to obtain all
necessary governmental approvals for the sale of the Registrable
Shares, as requested by the Investor;
(c) make available to the Investor, as soon as practicable, an
earnings statement that will satisfy the provisions of Section 11(a) of
the Securities Act; and
(d) do or cause to be done all such other acts and things as may be
necessary to make such sale of the Registrable Shares or any part
thereof valid and binding and in compliance with applicable law.
(iii) If any such Demand is made at a time when the Investor directly or
indirectly owns less than five percent (5%) of the number of shares of
Common Stock outstanding, AGI may, if its Audit Committee of its Board of
Directors determines in the good faith exercise of its reasonable judgment
that it would be inadvisable to effect a demand registration, defer such
demand registration until the earliest practicable time at which such
demand registration can be reasonably effected, which period shall not
exceed three (3) months.
(iv) All Registration Expenses incurred in connection with the first
registration statement to be filed hereunder or under that certain
Revolving Credit Agreement between AGI and the Investor of even date
herewith (the "Credit Agreement") shall be paid by AGI. All Registration
Expenses incurred in connection with each additional registration statement
to be filed hereunder or under the Credit Agreement shall be paid by the
Investor. For purposes of this Agreement, "Registration Expenses" shall
mean any and all expenses incident to performance of or compliance with
this Section 5, including, without limitation, (i) all SEC and stock
exchange registration and filing fees, (ii) all fees and expenses of
complying with state securities or "Blue Sky" laws (including fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Shares and determination of the eligibility of the Registrable
Shares for investment under the laws of such jurisdiction as the Investor
may indicate), (iii) all printing, messenger and delivery expenses, (iv)
all fees and expenses incurred in connection with the listing of
Registrable Shares on any exchange, and (v) the fees and disbursements of
counsel for AGI and of its independent public accountants, but excluding
underwriting discounts and commissions, brokerage fees, transfer taxes, if
any, fees and disbursements of counsel, accountants or other experts or
advisors to the Investor, and National Association of Securities Dealers
Inc. registration and filing fees.
6. No Prior Offering of Common Stock. AGI agrees that neither it nor any
agent on its behalf will sell or offer, or attempt or offer to dispose of, any
shares of Common Stock to, or solicit any offers to buy any thereof from, or
otherwise approach or negotiate in respect thereof with, any person or persons
whomsoever (other than the Investor) so as to make it necessary in connection
with the sale and delivery hereunder of the Subscription Shares to the Investor
on the Closing Date to register such Subscription Shares under the Securities
Act.
7. Use of Proceeds. AGI covenants and agrees that it will use the net
proceeds received by it from the sale of the Subscription Shares to repay a
portion of the outstanding indebtedness owed by AGI to the Investor as set
forth in Section 2(b) hereof.
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8. Conditions to Obligations of the Investor. The Investor's obligations
hereunder are subject to the condition that, unless waived in writing by the
Investor the representations and warranties made by AGI in Section 3 shall be
true and correct at and as of the Closing Date as if made at such time.
9. Conditions to Obligations of AGI. AGI's obligations hereunder are subject
to the fulfillment, prior to or at the Closing Date, unless waived in writing
by AGI, of each of the following conditions:
(a) The representations and warranties made by the Investor in Section 4
shall be true and correct at and as of the Closing Date as if made at such
time.
(b) AGI and the Investor shall have executed and delivered that certain
Revolving Credit Agreement dated as of April 15, 1994, by and between AGI
and the Investor.
(c) A listing application for the shares to be issued hereunder shall be
accepted by the New York Stock Exchange and any other applicable exchange,
if necessary, and if so required as a condition to such listing, the
majority of the shareholders of AGI shall have approved the issuance of
such Subscription Shares, as to which acceptance and approvals AGI agrees
promptly to make all reasonable efforts to obtain.
10. Survival; Successors and Assigns. All agreements, representations and
warranties made herein and in the certificates delivered pursuant hereto shall
survive the execution and delivery of this Agreement, the delivery to the
Investor of the Subscription Shares to be purchased pursuant hereto and the
payment therefor and, notwithstanding any investigation heretofore or hereafter
made by or on behalf of a party hereto, shall continue in full force and
effect. The rights and obligations of the Investor under this Agreement shall
not be assignable by the Investor without the prior written consent of AGI.
Nothing herein expressed or implied is intended to confer upon any person,
other than the parties hereto or their respective permitted assignees,
successors, heirs and legal representatives, any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
11. Amendment and Modification. Subject to applicable law, this Agreement may
be amended, modified or supplemented only by written agreement of AGI and the
Investor.
12. Waiver of Compliance; Consents. The failure of any of the parties to
comply with any obligation, covenant, agreement or condition herein may be
waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver. Any such waiver or failure
to insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure.
13. Notices. Any notice, request or other document to be given hereunder to
any party shall be effective upon receipt and shall be in writing and delivered
personally or sent by telecopy or certified mail, addressed to such address as
shall from time to time be designated in writing to the other by AGI or the
Investor, or until an address is so furnished, addressed to the address for
notices set forth on the signature pages hereof.
14. Entire Agreement. This Agreement, and the other agreements referred to
herein or expressly contemplated hereby, embody the entire agreement and
understanding between the Investor and AGI with respect to the purchase of
Subscription Shares by Investor contemplated hereby and supersede all prior
oral or written agreements, memoranda, understandings and undertakings among
the parties hereto relating to the subject matter hereof.
15. Construction. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Colorado. The section headings
contained in this Agreement are for reference purposes and shall not affect in
any way the meaning or interpretation of this Agreement.
16. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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In Witness Whereof, the parties hereto have executed this Agreement or caused
it to be executed by their respective officers thereunto duly authorized, as of
the date first above written.
Amax Gold Inc.
9100 East Mineral Drive
Englewood, Colorado 80112
/s/ Mark A. Lettes
By ____________________________________
Name:Mark A. Lettes
Title:Vice President & Chief
Financial Officer
Cyprus Amax Minerals Company
9100 East Mineral Drive
Englewood, Colorado 80112
/s/ Frank J. Kane
By ____________________________________
Name:Frank J. Kane
Title:Vice President Investor
Relations &
Treasurer
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