EXHIBIT 10.2
February 9, 1998
Guanaco Mining Company Inc.
Los Immigrantes Xx. 000
Xxxxxxx 0
Xxxxxxxxxxx, Xxxxx
NOMINEE AGREEMENT
Dear Sirs:
We refer you to the Sponsor Guarantee Agreement, dated February 9,
1998 (the "Sponsor Guarantee Agreement"), between Cyprus Amax Minerals Company
("Cyprus Amax") and Amax Gold Inc. ("Amax Gold"), the Recognition of Debt to be
dated as of the Closing Date (the "Recognition of Debt"), between Minera Cyprus
Amax Chile Limitada ("MCCL") and Compania Minera Amax Guanaco ("Guanaco"), and
the Letter Agreement, dated February 9 , 1998 (the "Letter Agreement"), between
MCCL and Guanaco. In consideration of the execution and delivery of this
Nominee Agreement (the "Agreement"), the Sponsor Guarantee Agreement, the
Recognition of Debt and the Letter Agreement by the other parties hereto and
thereto, each of Guanaco Mining Company Inc. ("GMC"), Cyprus Xxxxx Mineral
Company ("Cyprus Xxxxx") and Cyprus Specialty Metals Company ("Cyprus Metals"
and, together with Cyprus Xxxxx, the "Nominees"), hereby agrees as follows.
1. Share Subscription and Duties of Nominees. (a) Cyprus Xxxxx, as
nominee on behalf of GMC, agrees to subscribe for 1,759 new Class A common
shares (the "Xxxxx Shares") of Guanaco, representing 76.15% of the outstanding
Class A common shares of Guanaco after giving effect to such subscription, on
the date on which all of the conditions precedent contained in Section 5 are
satisfied or waived (the "Closing Date"), for a subscription price (the "Xxxxx
Subscription Price") equal to US$42,315,675, payable on the Closing Date.
(b) Cyprus Metals, as nominee on behalf of GMC, agrees to subscribe
for 371 new Class A common shares (the "Metals Shares" and, together with the
Xxxxx Shares and any securities issued in exchange therefor or in replacement
thereof, the "New Shares") of Guanaco, representing 16.06% of the outstanding
Capital A common shares of Guanaco after giving effect to such subscription, on
the Closing Date for a subscription price (the "Metals Subscription Price" and,
together with the Xxxxx Subscription Price, the "Subscription Price") equal to
US$8,925,021, payable on the Closing Date.
(c) Each Nominee agrees to hold any dividends or other distributions
on the New Shares received by it in trust for the benefit of GMC, and to pay
such dividends or other distributions to GMC promptly upon receipt.
(d) GMC shall be the sole beneficial owner of all right, title and
interest in the New Shares. Each Nominee agrees, promptly upon the request of
GMC, to surrender and return the New Shares held by such Nominee to GMC and to
effect any transfers necessary to reflect GMC or its designee as the record
owner of such New Shares.
(e) Each Nominee shall exercise any voting or other rights arising
out of its record ownership of New Shares only in accordance with the
instructions of GMC. Promptly upon the request of GMC, each Nominee shall
execute such documents as may be necessary to give any designee of GMC a valid
and effective power of attorney in respect of the New Shares held by such
Nominee.
(f) Each Nominee shall not sell, assign, pledge or otherwise transfer
or dispose of New Shares held by it without the prior written consent of GMC.
Each Nominee shall transfer New Shares as directed by GMC promptly after receipt
from GMC of instructions for transfer.
2. Reimbursement of Nominees. On the Closing Date, and subject to
receipt by Amax Gold or its designated subsidiary on the Closing Date of amounts
outstanding under certain intercompany notes issued by Guanaco in an amount
equal to or greater than the Subscription Price, GMC shall (i) reimburse Cyprus
Xxxxx or its designee in cash for the full amount of the Xxxxx Subscription
Price, and (ii) reimburse Cyprus Metals in cash for the full amount of the
Metals Subscription Price.
3. Indemnity. (a) GMC shall indemnify, defend and hold harmless
each Nominee, together with its directors, officers and employees, from and
against any cost, expense, loss, liability, penalty or tax not arising from such
Nominee's gross negligence or willful misconduct (including, without limitation,
any environmental liability), whether accruing before or after the Closing Date,
(i) arising out of Guanaco's operation of its business or (ii) resulting from
actions taken by such Nominee at the direction of GMC pursuant to clauses (d),
(e) and (f) of Section 1 hereof.
(b) With respect to third party claims, promptly after receipt by
either Nominee of notice of the commencement of any action or the presentation
or other assertion of any claim which could result in a claim for
indemnification, such Nominee shall give prompt written notice thereof to GMC,
and GMC shall be entitled to assume the defense thereof; provided, however, that
the Nominees may participate in the defense at their own cost. GMC shall have
the right to settle or compromise any claim or liability
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subject to indemnification; provided, however, that unless such settlement or
compromise includes a full release of the Nominees, any such settlement or
compromise shall require the consent of the Nominees, which consent shall not be
unreasonably withheld. The parties agree to provide all reasonable cooperation
in connection with any claim for which indemnification is or may be sought under
this Agreement.
4. Conditions Precedent. The obligations of each party hereto are
subject to satisfaction or waiver prior to the Closing Date of each of the
following conditions:
(i) no court or governmental or regulatory authority of competent
jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, or non-appealable
judgment, decree, injunction or other order which is in effect on
the Closing Date and prohibits the consummation of this
Agreement, the Sponsor Guarantee Agreement, the Recognition of
Debt or the Letter Agreement;
(ii) the shareholders of Guanaco shall have approved the issuance of
the New Shares;
(iii) the Central Bank of Chile shall have approved a prepayment by
Guanaco to Amax Gold or its designated subsidiary on certain
intercompany notes issued by Guanaco in a gross amount equal to
or greater than the sum of the Subscription Price plus US$6.1
million;
(iv) each party shall have received any other Chilean government
approvals necessary to give effect to the transactions
contemplated hereby;
(v) each party shall have received (A) an opinion of Xxxxxxxx,
Yrarrazaval, Xxxxxx & Xxxxxxx as to Chilean legal matters and (B)
an opinion of Xxxxxx Xxxxxxxx as to Chilean tax matters, in each
case on terms reasonably satisfactory to such party; and
(vi) the Recognition of Debt, the Letter Agreement and the Sponsor
Guarantee Agreement shall have been executed and delivered by (A)
in the case of obligations of the Nominees, each of Amax Gold and
Guanaco party thereto and (B) in the case of obligations of GMC,
each of Cyprus Amax, Cyprus Xxxxx, Cyprus Metals and MCCL party
thereto.
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5. Unwinding. In the event that the Nominees make full or partial
payment of the Share Subscription Price on the Closing Date and GMC fails to
reimburse the Nominees for the entire amount of such payment in cash on the
Closing Date as contemplated by Section 2, this Agreement, the Nominee Agreement
and the Letter Agreement, shall terminate and GMC shall cause Guanaco
immediately to return to the Nominees, without set-off for any reason, the
entire amount of the Share Subscription Price.
6. Termination. This Agreement shall terminate at such time as no
Nominee is record owner of any New Shares, provided that the obligations of GMC
under Section 2 and Section 3, in each case accruing prior to such termination,
shall survive such termination.
7. Amendment and Modification. This Agreement may not be modified or
amended except in a writing signed by both parties, and each party agrees not to
take any judicial or administrative action seeking modification or waiver of any
of its provisions.
8. Severability. If any provision of this Agreement is held to be
invalid, void or unenforceable, the remainder of this Agreement shall remain in
full force and effect.
9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
This Agreement may be executed in any number of separate counterparts,
each of which when so executed and delivered shall be an original, but all
counterparts together shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
this
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letter and return it to us, and upon the acceptance hereof by you, this letter
and such acceptance hereof shall constitute a legally binding agreement between
you and us.
Yours sincerely,
CYPRUS XXXXX MINERALS COMPANY
By:___________________________________
Name:
Title:
CYPRUS SPECIALTY METALS COMPANY
By:___________________________________
Name:
Title:
Agreed and accepted as of the date hereof:
GUANACO MINING COMPANY INC.
By:_______________________________
Name:
Title:
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