STOCK PURCHASE AGREEMENT
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STOCK PURCHASE AGREEMENT, dated as of September 1, 1999, between MK
Gold Company, a Delaware corporation having an office at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (the "Company"), and Leucadia National Corporation, a
New York corporation having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ("LUK").
W I T N E S S E T H:
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WHEREAS, of the issued and outstanding common stock, par
value $.01 per share of the Company (the "Common Stock"), 9,000,000 shares
representing 46.7% of the Common Stock are beneficially owned by LUK; and
WHEREAS, to enable the Company to make the Acquisition (as
defined below) LUK has agreed (i) to purchase additional shares of Common Stock
from the Company and, because funding of the Acquisition is required prior to
satisfaction of all conditions set forth herein, (ii) to loan the purchase price
for such shares to the Company, upon the terms of the promissory note attached
hereto as Exhibit A (the "Promissory Note").
WHEREAS, simultaneous with the execution of this Agreement,
(i) the Company has borrowed $15,806,723 from LUK as evidenced by the Promissory
Note dated the date hereof in the principal amount of $15,806,723 and has used
the proceeds thereof to fund part of the Purchase Price for the Acquisition and
(ii) the Company has acquired a 100% interest in the Las Cruces Copper Project
(the "Project") from Rio Tinto plc, subject to an option in favor of Straits
Resources Ltd to acquire a 35% interest in the Project, and has entered into
certain related transactions (the "Acquisition"); and
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
I. DEFINITIONS
References to this "Agreement" shall mean this Stock Purchase
Agreement, including all amendments, modifications and supplements and any
exhibits or schedules to any of the foregoing, and shall refer to this Agreement
as the same may be in effect at the time such reference becomes operative.
The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole, including the schedules and
exhibits hereto, as the same may from time to time be amended or supplemented,
and not to any particular section, subsection or clause contained in this
Agreement.
II. PURCHASE OF SECURITIES
2.1 Purchase of Securities. Upon the terms and subject to the
conditions set forth in this Agreement, on the Closing Date (as defined herein)
the Company shall issue, sell and deliver to LUK, free and clear of all liens,
and LUK shall purchase from the Company 18,058,635 shares of Common Stock (the
"Securities") for the consideration specified in Section 3.1.
III. PURCHASE PRICE AND PAYMENT
3.1 Amount of Purchase Price. The aggregate purchase price for the
Securities (the "Purchase Price") shall be $15,806,723, representing a per share
price equal to the $0.8753 per share book value of the Shares as at June 30,
1999.
3.2 Payment of Purchase Price. (a) Upon the terms and subject to the
conditions set forth in this Agreement, on the Closing Date, LUK shall pay to
the Company the Purchase Price and the Company shall deliver to LUK the
Securities issued in the name of LUK or such other person or persons as LUK
shall direct.
(b) Payment of the Purchase Price shall be made by delivery of the
Promissory Note to the Company
IV. THE COMPANY'S REPRESENTATIONS AND WARRANTIES
The Company makes the following representations and warranties to
LUK, each and all of which shall survive the execution and delivery of this
Agreement and the Closing (as defined herein) hereunder:
4.1 Organization. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own, lease and operate its
properties and to conduct its business as currently being and as proposed to be
conducted. The Company is qualified as a foreign corporation to transact
business in Utah and in any other jurisdiction where it is required to be so
qualified, except where the failure to be so qualified would not have a material
adverse effect on the condition, financial or otherwise, or the results of
operations, business or business prospects of the Company and its subsidiaries
taken as a whole (a "Material Adverse Effect").
4.2 Due Authorization. The Company has the requisite corporate power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the
Company and, assuming that this Agreement has been duly executed and delivered
by LUK, constitutes a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity hereunder may be limited by federal or state securities laws and
except as enforceability may be limited by bankruptcy,
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insolvency, fraudulent conveyance, moratorium, reorganization and similar laws
relating to or affecting creditors' rights generally and general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
4.3 Authorized and Outstanding Shares of Capital Stock. The
authorized capital stock of the Company consists of forty million (40,000,000)
shares of Common Stock, of which 19,261,365 shares currently are issued and
outstanding as of the date hereof. Except for 2,500,000 shares issuable under
the Company's Stock Incentive Plan (the "Stock Incentive Plan") and 180,000
shares issuable under the Company's Stock Option Plan for Non-Employee Directors
(the "Non-Employee Director Plan"), no subscription, warrant, option or other
right to purchase or acquire any shares of any class of capital stock of Company
or securities convertible into such capital stock is authorized or outstanding,
and other than this Agreement or pursuant to outstanding stock options issued
under the Stock Incentive Plan and the Non-Employee Director Plan, there is no
commitment of Company to issue any such shares, warrants, options or other such
rights or securities.
4.4 Authorization and Issuance of Securities. The issuance of the
Securities has been duly authorized and, upon delivery to LUK of certificates
therefor against payment in accordance with the terms hereof, the Securities
will have been validly issued and fully paid and non-assessable, free and clear
of all pledges, liens, encumbrances and preemptive rights.
4.5 Subsidiary Organizations. Each subsidiary of the Company has been
duly organized and is validly existing and in good standing under the laws of
their jurisdictions of incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as currently being
and as proposed to be conducted and is qualified as a foreign entity to transact
business in each other jurisdiction where the failure to do so would have a
Material Adverse Effect. All of the issued and outstanding capital stock of each
such subsidiary has been duly authorized and validly issued, is fully paid and
nonassessable and is owned directly by the Company.
4.6 No Other Rights. The issuance of the Securities is not subject to
preemptive or other similar rights.
4.7 No Conflicts. Neither the Company nor any of its subsidiaries is
in violation of its charter or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any of its subsidiaries is subject, the effect of which
default in performance or observance would have a Material Adverse Effect. None
of the execution and delivery of this Agreement will conflict with or constitute
a breach of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or
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other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or any applicable law, administrative
regulation or administrative or court decree.
4.8 No Consents. Except for filings required under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 as amended (the "HSR Act"),
the Securities Act of 1933, as amended (the "Securities Act"), the Securities
Exchange Act of 1934, as amended (the "Exchange Act") or state securities or
"blue sky" laws, no authorization, approval or consent of, or filing with, any
court or governmental authority or agency, is necessary or required in
connection with the sale of the Securities hereunder or the transactions
contemplated hereby.
4.9 Litigation. There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now pending or,
to the best knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries, which is reasonably likely to have a
Material Adverse Effect. There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending or, to
the best knowledge of the Company, threatened, which would materially and
adversely affect the consummation of the transactions contemplated by this
Agreement.
▇. ▇▇▇'▇ REPRESENTATIONS AND WARRANTIES
LUK makes the following representations and warranties to the
Company, each and all of which shall survive the execution and delivery of this
Agreement and the Closing hereunder:
5.1 Organization. LUK has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of New
York with corporate power and authority to own, lease and operate its properties
and to conduct its business as currently being and as proposed to be conducted
and to enter into and perform its obligations under this Agreement. LUK is
qualified as a foreign corporation to transact business in each jurisdiction
where it is required to be so qualified, except where the failure to be so
qualified would not have a material adverse effect on the business, financial
condition or results of operation of LUK and its subsidiaries taken as a whole.
5.2 Due Authorization. LUK has the requisite corporate power and
authority to enter into this Agreement and consummate the transactions
contemplated hereby. This Agreement and the transactions contemplated hereby
have each been duly authorized, executed and delivered by LUK, and this
Agreement constitutes a legal, valid and binding agreement of the Company,
enforceable against LUK in accordance with its terms, except as rights to
indemnity hereunder may be limited by federal or state securities laws and
except as enforceability may be limited by bankruptcy, insolvency,
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fraudulent conveyance, moratorium, reorganization and similar laws relating to
or affecting creditors' rights generally and general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
5.3 No Conflicts. LUK is not in violation of its certificate of
incorporation or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which LUK is a party or by which it may be bound, or to which any
of the property or assets of LUK or any of its subsidiaries is subject, the
effect of which default in performance or observance would have a material
adverse effect on the condition, financial or otherwise, or the results of
operations, business or business prospects of LUK and its subsidiaries
considered as one enterprise. The execution and delivery of this Agreement will
not conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the LUK or any of its subsidiaries pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which LUK or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of LUK or
any of its subsidiaries is subject, nor will such action result in any violation
of the provisions of the certificate of incorporation or by-laws of LUK or any
applicable law, administrative regulation or administrative or court decree.
5.4 No Consents. Except for filings under the HSR Act and under the
Securities Act and the Exchange Act, no authorization, approval or consent of,
or filing with, any court or governmental authority or agency, or under the
certificate of incorporation of the Company, is necessary or required in
connection with the purchase of the Securities hereunder or the execution,
delivery or performance of this Agreement or the transactions contemplated
hereby.
5.5 LUK's Investment Intention. LUK represents and warrants that it
is purchasing the Securities for its own account, for investment purposes and
not with a view to the distribution thereof, except in compliance with the
provisions of the Securities Act of 1933, as amended (the "Act"). LUK agrees
that it will not, directly or indirectly, offer, transfer, sell, assign, pledge,
hypothecate or otherwise dispose of any of the Securities (or solicit any offers
to buy, purchase, or otherwise acquire or take a pledge of any of the
Securities), except in compliance with the Act and the rules and regulations
thereunder.
5.6 Access to Data. LUK has had an opportunity to discuss the
Company's business, management, and financial affairs with its management and to
review the Company's records and facilities, and LUK is relying for purposes of
this Agreement upon its own due diligence review of the Company, not on any
representation or warranty of the Company other than as expressly set forth in
this Agreement.
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VI. COVENANTS
6.1 Tax Compliance. The Company shall pay all transfer, excise or
similar taxes in connection with the issuance, sale, delivery or transfer by the
Company to LUK of the Securities and shall save LUK harmless without limitation
as to time against any and all liabilities with respect to such taxes. The
obligations of Company under this Section 6.1 shall survive the payment,
prepayment or redemption of the Securities and the termination of this
Agreement.
6.2 Registration Rights. At any time after the date hereof, upon the
written request of LUK that the Company effect the registration under the Act
(which shall be a shelf registration if requested by LUK) of all or part of the
shares of Common Stock (including the Securities upon their issuance) owned by
LUK (including any affiliate of LUK) and specifying the intended method or
methods of disposition thereof, the Company shall, at its own cost, cooperate
with LUK and effect the registration under the Act of such shares as soon as
practicable after receipt of such request.
VII. CONDITIONS PRECEDENT
7.1 Conditions Precedent to Obligations of LUK. The obligation of LUK
to purchase the Securities and to consummate the transactions contemplated by
this Agreement is subject to satisfaction of the following conditions on or
prior to the Closing Date (unless expressly waived in writing by LUK on or prior
to the Closing Date):
(a) All of the terms, covenants and conditions of this Agreement to
be complied with and performed by the Company on or prior to the Closing Date
shall have been complied with and performed by it in all material respects, and
the representations and warranties made by the Company in this Agreement shall
be true and correct in all material respects on and as of the Closing Date
(except that representations and warranties qualified by the terms "material" or
"Material Adverse Effect" shall be true and correct in all respects) with the
same force and effect as though such representations and warranties had been
made on and as of the Closing Date, except as a result of actions contemplated
or permitted by this Agreement and except that any such representations and
warranties that are given as of a particular date and relate solely to a
particular date or period shall be true and correct as of such date or period.
(b) The Company shall deliver to LUK a certificate dated as of the
Closing Date and signed by an executive officer of the Company certifying that
the conditions specified in this Section have been fulfilled.
(c) No temporary restraining order, preliminary or permanent
injunction or other order issued by any governmental authority or other legal
restraint or prohibition preventing the consummation of the Closing shall be in
effect.
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(d) The waiting period (and any extensions thereof) applicable to the
transactions contemplated hereby under the HSR Act shall have been terminated or
shall have otherwise expired.
(e) LUK will have received from the Company a certificate of its
Secretary or Assistant Secretary certifying as to (i) the resolutions of the
Board of Directors of the Company approving this Agreement and authorizing the
consummation of the transactions contemplated hereby and (ii) the incumbency and
signatures of the officers of Seller executing this Agreement.
7.2 Conditions Precedent to Obligations of the Company. The
obligation of the Company to issue the Securities pursuant to this Agreement is
subject to satisfaction of the following conditions on or prior to the Closing
Date (unless expressly waived in writing by the Company on or prior to the
Closing Date):
(a) All of the terms, covenants and conditions of this Agreement to
be complied with and performed by LUK on or prior to the Closing Date shall have
been complied with and performed by it in all material respects, and the
representations and warranties made by LUK in this Agreement shall be true and
correct in all material respects on and as of the Closing Date (except that
representations and warranties qualified by the terms "material" or "material
adverse effect" shall be true and correct in all respects) with the same force
and effect as though such representations and warranties had been made on and as
of the Closing Date, except as a result of actions contemplated or permitted by
this Agreement and except that any such representations and warranties that are
given as of a particular date and relate solely to a particular date or period
shall be true and correct as of such date or period.
(b) LUK shall deliver to the Company a certificate dated as of the
Closing Date and signed by an executive officer of LUK certifying that the
conditions specified in this Section 7.2 have been fulfilled.
(c) No temporary restraining order, preliminary or permanent
injunction or other order issued by any governmental authority or other legal
restraint or prohibition preventing the consummation of the Closing shall be in
effect.
(d) The waiting period (and any extension thereof) applicable to the
transactions contemplated hereby under the HSR Act shall have been terminated or
shall have otherwise expired.
(e) The Company will have received from LUK a certificate of its
Secretary or Assistant Secretary certifying as to (i) the resolutions of the
Board of Directors of Buyer approving this Agreement and authorizing the
consummation of the transactions contemplated hereby and (ii) the incumbency and
signatures of the officers of LUK executing this Agreement.
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VIII. CLOSING
8.1 Closing Date. (a) The closing of the sale and purchase of the
Shares provided for in Article III hereof (the "Closing") shall take place at
the offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP, New York, New York at 10:00 a.m. (New
York City time) (or at such time and at such place as the parties may designate)
on the second business day following the date on which each of the conditions
specified in Article VII hereof has been fulfilled (or waived by the party
entitled to waive that condition). The date on which the Closing occurs is
referred to in this Agreement as the "Closing Date".
8.2 Specific Performance. The parties hereto acknowledge that
irreparable damage would result if this Agreement were not specifically
enforced, and they therefore consent that the rights and obligations of the
parties under this Agreement, including the Company's obligation to sell the
Securities to LUK, may be enforced by a decree of specific performance issued by
a court of competent jurisdiction. Such remedy shall, however, not be exclusive
and shall be in addition to any other remedies which any party may have under
this Agreement or otherwise.
IX. SECURITIES LAW MATTERS
9.1 Legends. Unless the Securities are the subject of an effective
registration statement, each certificate representing the Securities shall bear
a legend substantially in the following form:
"THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED ("THE ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT
BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION THEREFROM."
X. INDEMNIFICATION AND EXPENSES
10.1 Indemnification by the Company. The Company agrees to indemnify,
defend and hold LUK and its respective officers, directors, employees, agents
and controlling persons (collectively, the "LUK Indemnitees") harmless from and
against any and all expenses, losses, claims, damages and liabilities which are
incurred by or threatened against the LUK Indemnitees, or any of them,
including, without limitation, reasonable attorneys' fees and expenses, caused
by, or in any way resulting from or relating to the Company's breach of any of
the representations, warranties, covenants or agreements of the Company set
forth in this Agreement.
10.2 Indemnification by LUK. LUK agrees to indemnify, defend and hold
harmless the Company and its respective officers, directors, employees, agents,
partners
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and controlling persons (collectively, the "Company Indemnitees") harmless from
and against any and all expenses, losses, claims, damages and liabilities which
are incurred by or threatened against the Company Indemnitees, or any of them,
including, without limitation, reasonable attorneys' fees and expenses, caused
by, or in any way resulting from or relating to LUK's breach of any of the
representations, warranties, covenants or agreements of LUK set forth in this
Agreement.
XI. TERMINATION
11.1 Termination. This Agreement may be terminated at any time prior
to the Closing: (i) by mutual written consent of the Company and LUK or (ii) by
either LUK or the Company if the Closing shall not have occurred on or before
December 31, 1999; provided, however, that the right to terminate this Agreement
under Section 11.1(ii) will not be available to any party whose failure to
fulfill any obligations under this Agreement has been the cause of, or resulted
in, the failure of the Closing to occur on or before such date.
11.2 Effect of Termination. If this Agreement is terminated pursuant
to Section 11.1, this Agreement shall become void and of no effect with no
liability on the part of any party hereto, except with respect to Section 12.8
and except that nothing herein will relieve any party from liability for any
prior breach of this Agreement.
XII. MISCELLANEOUS
12.1 Notices. Whenever it is provided herein that any notice, demand,
request, consent, approval, declaration or other communication shall or may be
given to or served upon any of the parties by another, or whenever any of the
parties desires to give or serve upon another any such communication with
respect to this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and either shall be
delivered in person with receipt acknowledged or by registered or certified
mail, return receipt requested, postage prepaid, or by telecopy and confirmed by
telecopy answerback addressed as follows:
If to Company at:
MK Gold Company
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to:
Stoel Rives LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to LUK at:
Leucadia National Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, telecopied and confirmed by telecopy answerback, or
three (3) business days after the same shall have been deposited with the United
States mail.
12.2 Binding Effect; Benefits. Except as otherwise provided herein,
this Agreement shall be binding upon and inure to the benefit of the parties to
this Agreement and their respective successors, transferees and permitted
assigns. Except as expressly set forth herein, nothing in this Agreement,
express or implied, is intended or shall be construed to give any person other
than the parties to this Agreement or their respective successors, transferees
or permitted assigns any legal or equitable right, remedy or claim under or in
respect of any agreement or any provision contained herein.
12.3 Waiver. Either party hereto may by written notice to the other
(a) extend the time for the performance of any of the obligations or other
actions of the other party under this Agreement; (b) waive compliance with any
of the conditions or covenants of the other party contained in this Agreement;
and (c) waive or modify performance of any of the obligations of the other party
under this Agreement. Except as provided in the preceding sentence, no action
taken pursuant to this Agreement, including, without
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limitation, any investigation by or on behalf of either party, shall be deemed
to constitute a waiver by the party taking such action, of compliance with any
representations, warranties, covenants or agreements contained herein. The
waiver by either party hereto of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any preceding or succeeding
breach and no failure by either party to exercise any right or privilege
hereunder shall be deemed a waiver of such party's rights or privileges
hereunder or shall be deemed a waiver of such party's rights to exercise the
same at any subsequent time or times hereunder.
12.4 Amendment. This Agreement may be amended, modified or
supplemented only by a written instrument executed by LUK and the Company.
12.5 Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by Company. Neither this Agreement nor any right, remedy, obligation
or liability arising hereunder or by reason hereof shall be assignable by LUK
without the prior written consent of the Company; provided, however, that
without the consent of the Company, LUK may assign this Agreement and any or all
rights or obligations hereunder (including, without limitation, LUK's rights to
purchase the Securities and LUK's rights to seek indemnification hereunder) to
any affiliate of LUK. Upon any such permitted assignment, the references in this
Agreement to LUK shall also apply to any such assignee unless the context
otherwise requires; provided, however, that the conditions set forth in Section
7.2 shall continue to apply to LUK.
12.6 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the principles thereof regarding conflict of laws.
12.7 Section and Other Headings. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
12.8 Certain Fees and Expenses. Whether or not the transactions
contemplated hereby are consummated, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby,
including all fees and expenses of agents, representatives, counsel and
accountants shall be paid by the party for whom such costs or expenses were
incurred.
12.9 Severability. In the event that any one or more of the
provisions 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 or provisions in every other respect
and the remaining provisions of this Agreement shall not be in any way impaired.
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12.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
MK GOLD COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
LEUCADIA NATIONAL CORPORATION
By: /s/
--------------------------------------
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TABLE OF CONTENTS
Page
I. DEFINITIONS....................................................................................................1
II. PURCHASE OF SECURITIES.........................................................................................2
2.1 Purchase of Securities...............................................................................2
III. PURCHASE PRICE AND PAYMENT.....................................................................................2
3.1 Amount of Purchase Price.............................................................................2
3.2 Payment of Purchase Price............................................................................2
IV. THE COMPANY'S REPRESENTATIONS AND WARRANTIES...................................................................2
4.1 Organization.........................................................................................2
4.2 Due Authorization....................................................................................2
4.3 Authorized and Outstanding Shares of Capital Stock...................................................3
4.4 Authorization and Issuance of Securities.............................................................3
4.5 Subsidiary Organizations.............................................................................3
4.6 No Other Rights......................................................................................3
4.7 No Conflicts.........................................................................................3
4.8 No Consents..........................................................................................4
4.9 Litigation...........................................................................................4
▇. ▇▇▇'▇ REPRESENTATIONS AND WARRANTIES...........................................................................4
5.1 Organization.........................................................................................4
5.2 Due Authorization....................................................................................4
5.3 No Conflicts.........................................................................................5
5.4 No Consents..........................................................................................5
5.5 LUK's Investment Intention...........................................................................5
5.6 Access to Data.......................................................................................5
VI. COVENANTS......................................................................................................6
6.1 Tax Compliance.......................................................................................6
6.2 Registration Rights..................................................................................6
VII. CONDITIONS PRECEDENT...........................................................................................6
7.1 Conditions Precedent to Obligations of LUK...........................................................6
7.2 Conditions Precedent to Obligations of the Company...................................................7
VIII. CLOSING........................................................................................................8
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8.1 Closing Date.........................................................................................8
8.2 Specific Performance.................................................................................8
IX. SECURITIES LAW MATTERS.........................................................................................8
9.1 Legends..............................................................................................8
X. INDEMNIFICATION AND EXPENSES...................................................................................8
10.1 Indemnification by the Company.......................................................................8
10.2 Indemnification by LUK...............................................................................8
XI. TERMINATION....................................................................................................9
11.1 Termination..........................................................................................9
11.2 Effect of Termination................................................................................9
XII. MISCELLANEOUS..................................................................................................9
12.1 Notices..............................................................................................9
12.2 Binding Effect; Benefits............................................................................10
12.3 Waiver..............................................................................................10
12.4 Amendment...........................................................................................11
12.5 Assignability.......................................................................................11
12.6 Applicable Law......................................................................................11
12.7 Section and Other Headings..........................................................................11
12.8 Certain Fees and Expenses...........................................................................11
12.9 Severability........................................................................................11
12.10 Counterparts........................................................................................12
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PROMISSORY NOTE
$15,806,723 New York, New York
September 1, 1999
FOR VALUE RECEIVED, the undersigned, MK Gold Company, a
Delaware corporation with offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ (the "Maker"), hereby promises to pay to Leucadia National Corporation, a
New York corporation (the "Payee"), at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as Payee or any holder
hereof may from time to time designate to Maker in writing, the principal sum of
$15,806,723 on September __, 2001 (the "Maturity Date"). Maker promises to pay
interest in lawful money of the United States on the unpaid principal amount of
this Note from the date hereof until such principal amount is paid in full, at
the interest rate specified in the next sentence. Interest shall accrue on the
unpaid principal balance hereof at an annual rate of 8% per annum for a period
of 60 days from the date hereof, and thereafter at the annual rate of 12% per
annum until payment of this Note in full. Interest hereunder shall be payable
semi-annually in arrears on the last day of September and March, beginning on
March 31, 2000 and on the Maturity Date and shall be computed on the basis of
the actual number of days elapsed over the period of a 360-day year. On any day
on which the Maker is to pay any amount due under this Promissory Note ("Payment
Day"), funds must be received at or before 11:00am New York time. Funds received
after 11:00am on any Payment Day will be treated as having been received on the
next day banks are open for business in New York.
The following shall constitute Events of Default under this
Note:
(a) failure by Maker to make any payment of interest
required under this Note and such failure remains unremedied for 5 days;
(b) failure by Maker to make any payment of the principal
of this Note when the same becomes due and payable at maturity, by acceleration
or otherwise;
(c) Maker pursuant to or within the meaning of any
bankruptcy law:
(i) commences a voluntary case; (ii) consents to the entry
of an order for relief against him in an involuntary case; (iii) consents to the
appointment of a custodian for him or for all or substantially all of his
property; (iv) makes a general assignment for the benefit of his creditors; or
(v) admits in writing his inability generally to pay its debts as the same
become due.
Upon the occurrence of an Event of Default specified in
clause (c) above, the principal amount of this Promissory Note, together with
all accrued and unpaid interest thereon and all other amounts owing hereunder,
shall become immediately due and payable, without presentment, demand, notice,
protest or other requirements of any
kind (all of which are hereby expressly waived by maker). If any other Event of
Default occurs and is continuing, then and in every such case, Payee, by notice
to Maker, may declare the unpaid principal of, and any accrued but unpaid
interest on, this Note to be due and payable. Upon such declaration, the
principal and interest on this Note shall be due and payable immediately.
Maker hereby waives diligence, demand, presentment, protest
and (except as herein provided) notice, and assents to extensions of time of
payments, releases, surrender or forbearance or other indulgence, without
notice.
Maker acknowledges and agrees that Maker's obligation to
pay principal and interest hereunder shall not be subject to any counterclaims,
offsets or defenses against Payee or any holder of this Note that are presently
existing or which may arise in the future.
If this Note is referred to an attorney or other person for
collection, Maker shall be liable for the reasonable fees and expenses of such
attorney or person and the other reasonable expenses and costs of collection.
No failure or delay on the part of Payee to exercise any
right, power or privilege under this Promissory Note and no course or privilege
or operate as a waiver of any default or an acquiescence therein, nor shall any
single or partial exercise of any such right, power or privilege preclude any
other right, power or privilege. The rights and remedies expressly provided for
in this Note are cumulative to, and not exclusive of, any rights or remedies
that Payee otherwise would have.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK AND SHALL BE BINDING UPON THE SUCCESSORS
AND ASSIGNS OF MAKER AND SHALL INURE TO THE BENEFIT OF PAYEE, ITS SUCCESSORS,
ENDORSEES AND ASSIGNS.
Nothing contained in this Note shall be deemed to establish
or require the payment of a rate of interest in excess of the maximum rate
legally enforceable. If the rate of interest called for under this Note at any
time exceeds the maximum rate legally enforceable, the rate of interest required
to be paid hereunder shall be automatically reduced to the maximum rate legally
enforceable. If such interest rate is so reduced and thereafter the maximum rate
legally enforceable is increased, the rate of interest required to be paid
hereunder shall be automatically increased to the maximum rate legally
enforceable, which in no event shall exceed the rate otherwise provided for in
this Note.
Maker hereby irrevocably consents to the jurisdiction of
the Courts of the State of New York and of any Federal Court located in such
State in connection with any action or proceeding arising out of or relating to
this Note. Maker further agrees that Maker will not commence or move to transfer
any action or proceeding, arising out or relating to the provisions of this
Note, in any Court other than one located in the State of New York. In any such
litigation, Maker waives personal service of any summons,
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complaint or other process and agrees that the service thereof may be made by
certified mail directed to Maker at the address set forth above or at such other
place as Maker may from time to time designate to Payee in writing.
This Note may not be changed, modified or terminated
orally, but only by an agreement in writing signed by Maker and Payee.
At any time and from time to time the holder of this Note,
subject to compliance with applicable securities laws, may transfer this Note
and assign its rights hereunder pursuant to a written instrument of transfer
duly executed by the holder of this Note or its attorney duly authorized in
writing.
If any term or provision of this Note shall be held
invalid, illegal or unenforceable, the validity of all other terms and
provisions hereof shall in no way be affected.
MK GOLD COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
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