Exhibit 4
EXECUTION COPY
VOTING AGREEMENT (this "AGREEMENT"), dated as of May 2, 2005, by and
between LEUCADIA NATIONAL CORPORATION, a New York corporation ("LEUCADIA") and
INMET MINING CORPORATION, an Ontario corporation ("INMET").
WHEREAS, concurrently with the execution of this Agreement, MK
Resources Company, a Delaware corporation (the "COMPANY"), Leucadia and Marigold
Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
Leucadia ("MERGER SUB"), are entering into an Agreement and Plan of Merger of
even date herewith (the "MERGER AGREEMENT"; capitalized terms used but not
defined in this Agreement have the meanings ascribed thereto in the Merger
Agreement);
WHEREAS, as of the date hereof, Leucadia is the record and beneficial
owner of 27,212,735 shares of common stock, $0.01 par value, of the Company
(such shares, together with any other shares of Company Common Stock acquired by
Leucadia after the date hereof, being collectively referred to herein as the
"COMPANY SHARES");
WHEREAS, as a condition to, and simultaneously with, the execution of
the Merger Agreement, the Company, Leucadia and Inmet are entering into a Share
Purchase Agreement (the "SHARE PURCHASE AGREEMENT," and the transactions
contemplated thereby, the "INMET SHARE PURCHASE") pursuant to which the Company
has agreed, among other things, to sell 70% of the issued and outstanding
capital stock of MK Gold Exploration B.V., a private company with limited
liability under the laws of the Netherlands, or 70% of the equity interests of
such other entity mutually acceptable to the Company, Leucadia and Inmet,
owning, directly or indirectly, 100% of the Material Company Subsidiaries (such
capital stock or equity interests, the "PURCHASED SHARES"), and Inmet has
agreed, among other things, to purchase the Purchased Shares for the aggregate
consideration of 5,600,000 Inmet common shares (subject to adjustment as
provided in the Share Purchase Agreement); and
WHEREAS, as a condition to its willingness to enter into the Share
Purchase Agreement, Inmet has required that Leucadia enter into this Agreement
and, in order to induce Inmet to enter into the Share Purchase Agreement,
Leucadia is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Agreements of Leucadia.
(a) Voting. From the date hereof until any termination of this
Agreement in accordance with its terms, at any meeting of the stockholders of
the Company however called or any adjournment thereof, Leucadia shall vote all
Company Shares (or cause them to be voted), (i) in favor of the adoption of the
Merger Agreement and the approval of the Transactions, (ii) against any action
or agreement that would result in a breach of any representation, warranty,
covenant, agreement or other obligation of the Company in the Merger Agreement
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or the Share Purchase Agreement, (iii) against any Takeover Proposal and (iv)
against any agreement, amendment of the Company Charter Documents or other
action that is intended or could reasonably be expected to prevent, impede,
interfere with, delay, postpone or discourage the consummation of the Merger or
the Inmet Share Purchase. Any such vote shall be cast by Leucadia in accordance
with such procedures relating thereto so as to ensure that it is duly counted,
including for purposes of determining that a quorum is present and for purposes
of recording the results of such vote.
(b) Restriction on Transfer; Proxies; Non-Interference; etc. From the
date hereof until any termination of this Agreement in accordance with its
terms, Leucadia shall not (i) sell, transfer (including by operation of law),
give, pledge, encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to the sale,
transfer, gift, pledge, encumbrance, assignment or other disposition of, any
Company Shares, (ii) deposit any Company Shares into a voting trust or grant any
proxies or enter into a voting agreement, power of attorney or voting trust with
respect to any Company Shares or (iii) take any action that would have the
effect of preventing, disabling or delaying Leucadia from performing any of its
obligations under this Agreement.
2. Termination. This Agreement shall automatically terminate on the
termination of the Share Purchase Agreement in accordance with its terms.
Notwithstanding the foregoing, (i) nothing herein shall relieve any party from
liability for fraud or any willful breach of this Agreement and (ii) the
provisions of this Section 2 and Section 3 hereof shall survive any termination
of this Agreement.
3. Miscellaneous.
(a) Action in Stockholder Capacity Only. The parties acknowledge that
this Agreement is entered into by Leucadia in its capacity as owner of the
Company Shares and that nothing in this Agreement shall in any way restrict or
limit any director or officer of the Company from taking any action in his
capacity as a director or officer of the Company that is necessary for him to
comply with his fiduciary duties as a director or officer of the Company,
including, without limitation, participating in his capacity as a director of
the Company in any discussions or negotiations in accordance with Section 5.3 of
the Merger Agreement.
(b) Expenses. Except as otherwise expressly provided in this
Agreement, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such costs
and expenses.
(c) Additional Shares. Until any termination of this Agreement in
accordance with its terms, Leucadia shall promptly notify Inmet of the number of
shares of Company Common Stock, if any, as to which Leucadia acquires record or
beneficial ownership after the date hereof. Any shares of Company Common Stock
as to which Leucadia acquires record or beneficial ownership after the date
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hereof and prior to termination of this Agreement shall be Company Shares for
purposes of this Agreement. Without limiting the foregoing, in the event of any
stock split, stock dividend or other change in the capital structure of the
Company affecting the Company Common Stock, the number of shares of Company
Common Stock constituting Company Shares shall be adjusted appropriately and
this Agreement and the obligations hereunder shall attach to any additional
shares of Company Common Stock or other voting securities of the Company issued
to Leucadia in connection therewith.
(d) Definition of "Beneficial Ownership". For purposes of this
Agreement, "beneficial ownership" with respect to (or to "own beneficially") any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including pursuant to
any agreement, arrangement or understanding, whether or not in writing.
(e) Further Assurances. From time to time, at the request of Inmet
and without further consideration, Leucadia shall execute and deliver such
additional documents and take all such further action as may be reasonably
required to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
(f) Entire Agreement; No Third Party Beneficiaries. This Agreement
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof. This Agreement is not intended to and
shall not confer upon any Person other than the parties hereto any rights
hereunder.
(g) Assignment; Binding Effect. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Any purported
assignment not permitted under this Section 3(g) shall be null and void.
(h) Amendments; Waiver. This Agreement may not be amended or
supplemented, except by a written agreement executed by the parties hereto. Any
party to this Agreement may (A) waive any inaccuracies in the representations
and warranties of any other party hereto or extend the time for the performance
of any of the obligations or acts of any other party hereto or (B) waive
compliance by the other party with any of the agreements contained herein.
Notwithstanding the foregoing, no failure or delay by Inmet in exercising any
right hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right hereunder. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party.
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(i) Severability. If any term or other provision of this Agreement is
determined by a court of competent jurisdiction to be invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
terms, provisions and conditions of this Agreement shall nevertheless remain in
full force and effect. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
(j) Counterparts. This Agreement may be executed in two or more
separate counterparts, each of which shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement. This
Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by the other parties hereto.
(k) Descriptive Headings. Headings of Sections and subsections of
this Agreement are for convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
(l) Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission) and shall
be given,
if to Leucadia, to:
Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, President
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
if to Inmet, to:
Inmet Mining Corporation
000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx
Attention: Xxxxx Astritis
Facsimile: (000) 000-0000
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with a copy (which shall not constitute notice) to:
Torys LLP
Suite 3000
00 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 P.M. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
(m) Drafting. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement and, in the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as jointly drafted by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provision of this Agreement.
(n) Governing Law; Enforcement; Jurisdiction; Waiver of Jury Trial.
(i) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(ii) The federal courts sitting in New York County shall have
jurisdiction to entertain any action arising under this Agreement, and each of
the parties to this Agreement hereby submits to the jurisdiction of the federal
courts sitting in New York County.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
LEUCADIA NATIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President and
Treasurer
INMET MINING CORPORATION
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: President and Chief Operating
Officer
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