<PAGE>
As filed with the Securities and Exchange Commission on July 13, 1994
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-------------------
AMAX GOLD INC.
(Exact name of registrant as specified in its charter)
-------------------
Delaware 06-1199974
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
9100 East Mineral Circle
Englewood, Colorado 80112
(303) 643-5500
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Deferred Compensation Plan For Members of the Board of Directors of
Amax Gold Inc.;
Stock Grant Plan For Nonemployee Directors of Amax Gold Inc.;
Amax Gold Inc. 1992 Stock Option Plan; Amax Gold Inc. Performance Share Plan
(Full title of plan)
-------------------
Paul J. Hemschoot, Jr. With copies to:
Amax Gold Inc. Paul Hilton, Esq.
9100 East Mineral Circle Davis, Graham & Stubbs
Englewood, Colorado 80112 370 Seventeenth Street, Suite 4700
(303) 643-5540 Denver, Colorado 80202
(303) 892-9400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================================================================================================================
Proposed Proposed
Amount maximum maximum
Title of each class of to be offering price aggregate Amount of
securities to be registered registered/1/ per share/2/ offering price/2/ registration fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock ($0.01 par value)...... 4,200,000 shares 7.73 32,466,000.00 11,195.17
========================================================================================================================
</TABLE>
(1) The Registration Statement covers 100,000 shares which are issuable
pursuant to the Deferred Compensation Plan For Members of the Board of
Directors of Amax Gold Inc.; 100,000 shares which are issuable pursuant to
the Stock Grant Plan For Nonemployee Directors of Amax Gold Inc.; 525,650
shares which are issuable pursuant to options outstanding under and
2,474,350 which may be issuable pursuant to the Amax Gold Inc. 1992 Stock
Option Plan and 850,000 shares which may be issuable pursuant to the Amax
Gold Inc. Performance Shares Plan. The Registration Statement also covers
150,000 shares which may be issued pursuant to awards of Dividend
Equivalents under the Amax Gold Inc. Performance Share Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee. The price per share and aggregate offering price are
based upon the actual exercise price of shares to be issued pursuant to
options previously granted under the Amax Gold Inc. 1992 Stock Option Plan;
and the average of the high and low prices of the Company's Common Stock on
July 8, 1994 as reported on the New York Stock Exchange for shares to be
awarded or subject to options to be granted under the Deferred Compensation
Plan For Members of the Board of Directors of Amax Gold Inc.; Stock Grant
Plan For Nonemployee Directors of Amax Gold Inc.; Amax Gold Inc. 1992 Stock
Option Plan and Amax Gold Inc. Performance Share Plan.
<PAGE>
REOFFER PROSPECTUS
9,758 SHARES
AMAX GOLD INC.
COMMON STOCK
($.01 PAR VALUE)
----------------
This Prospectus relates to the offer and sale by certain stockholders (the
"Selling Stockholders") for their respective accounts of shares of Common
Stock, par value $.01 per share (the "Common Stock") of Amax Gold Inc. (the
"Company" or "Amax Gold") which have been issued by the Company pursuant to
the Deferred Compensation Plan for members of the Board of Directors of Amax
Gold Inc. As of the date hereof, a total of 9,758 shares of Common Stock
granted to the Selling Stockholders pursuant to the employee benefit plan are
outstanding. All of such shares are offered hereby. See "Plan of Distribution."
The Company will not receive any of the proceeds from sales of Common Stock
by the Selling Stockholders.
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK. PROSPECTIVE
PURCHASERS SHOULD CAREFULLY REVIEW THE MATTERS SET FORTH IN "RISK FACTORS."
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
----------------
The date of this Prospectus is July 13, 1994
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at its Regional
Offices located at Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511, and 7 World Trade Center, 13th Floor, New
York, New York 10048. Copies of such material can be obtained at prescribed
rates from the Public Reference Section of the Commission, 450 Fifth Street,
N.W. Plaza, Washington, D.C. 20549. The Company is also subject to the
information and reporting requirements of the securities regulatory authorities
of certain provinces of Canada and files similar reports, proxy statements and
other information with such authorities. The Common Stock is listed on the New
York and Toronto Stock Exchanges and certain warrants to purchase Common Stock
are listed on the American and Toronto Stock Exchanges. Such reports, proxy
statements and other information can also be inspected and copied at the
respective offices of these exchanges at the New York Stock Exchange, 20 Broad
Street, New York, New York 10005, the Toronto Stock Exchange, 2 First Canadian
Place, Toronto, Ontario, Canada M5X 1J2, and the American Stock Exchange, 86
Trinity Place, New York, New York 10006-1881.
The Company has filed with the Commission a Registration Statement on Form S-
8 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Common Stock offered hereby. This
Prospectus, which constitutes a part of the Registration Statement, does not
contain all the information set forth in the Registration Statement, certain
parts of which have been omitted in accordance with the rules and regulations
of the Commission. Reference is hereby made to the Registration Statement and
the exhibits thereto for further information with respect to the Company and
the Common Stock. The Registration Statement and the exhibits thereto can be
obtained from or inspected and copied at the public reference facilities
maintained by the Commission as described in the prior paragraph.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents which have been filed by the Company with the
Commission pursuant to the Exchange Act are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993 (No. 1-9620), filed with the Commission on March
18, 1994, pursuant to Section 13(a) or 15(d) of the Exchange Act.
(b) The Company's Quarterly Report on Form 10-Q for the period ended
March 31, 1994 filed on May 16, 1994, (No. 1-9620) pursuant to
Section 13(a) or 15(d) of the Exchange Act.
(c) The Company's Current Report on Form 8-K, dated March 7, 1994.
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8A (No. 1-9617), filed
with the Commission pursuant to the Exchange Act on July 9, 1987,
as amended by filings on Form 8 constituting Amendment No. 1 to the
Form 8A, filed with the Commission on July 28, 1987.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Common Stock
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of filing of such documents.
Any statement contained herein, or in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this
2
<PAGE>
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will furnish without charge to each person, including any
beneficial owner of Common Stock, to whom this Prospectus is delivered, upon the
written or oral request of such person, a copy of any and all of the documents
incorporated by reference herein, except for the exhibits to such documents
(unless such exhibits are specifically incorporated by reference into such
documents). Requests should be directed to Investor Relations, 9100 East
Mineral Circle, Englewood, Colorado 80112. Telephone requests may be directed
to Investor Relations at (303) 643-5522.
----------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE
IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON
MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON
TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. THE DELIVERY OF THIS
PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT INFORMATION HEREIN IS CORRECT AS OF
ANY TIME SUBSEQUENT TO THE DATE HEREOF.
3
<PAGE>
THE COMPANY
The Company is engaged in the mining and processing of gold and silver ore in
the United States and Chile, the sale of refined gold and silver bullion and
the exploration for, and acquisition and development of, gold-bearing
properties in North, Central and South America. The Company's operating
properties consist of a 100% interest in the Sleeper mine, an open pit gold
mine in Humboldt County, Nevada; a 100% interest in the Hayden Hill mine, an
open pit gold mine in Lassen County, California; an indirect 90% interest in
the Guanaco mine, an open pit gold mine in the Guanaco Mining District
approximately 145 miles southeast of Antofagasta, Chile; and a 100% interest in
the Wind Mountain mine, an open pit gold mine in Washoe County, Nevada, at
which mining ceased on January 30, 1992, although residual heap leach
production has continued. The Company, having realized all future economic
benefit from its 33.53% interest in the Waihi gold mine in New Zealand
effective April 30, 1993, retains a nominal interest in such mine. At December
31, 1993, the Company had proven/probable gold reserves of approximately 268
million tons of ore containing approximately 7.4 million ounces of gold. In
1993, the Company produced approximately 210,900 ounces of gold and
approximately 673,500 ounces of silver.
The Company has two major gold development projects, Refugio and Fort Knox,
which are in advanced stages of development. The Refugio project is a large
scale, low grade gold deposit in central Chile in which the Company has an
indirect 50% interest. The Fort Knox project is a 100% owned, large scale, low
grade gold deposit located approximately 15 miles northeast of Fairbanks,
Alaska. Feasibility studies have been completed with respect to both
of these projects. In addition, the Company has a 62.5% joint venture interest
in the Haile gold project in Lancaster County, South Carolina, which is in the
evaluation stage. Since these development and evaluation projects are not on
federal lands, none of them would be subject to currently proposed legislation
in Congress to alter the General Mining Law. As a result of the Company's
ongoing exploration and development efforts, the Company also has the right to
earn a 60% interest in the Robertson property, an advanced-stage exploration
prospect in Crescent Valley, Nevada, by completing a bankable feasibility study
by November 1994.
The Company was incorporated as a wholly-owned subsidiary of AMAX Inc., a New
York corporation ("Amax"), in April 1987 to acquire the gold interests of Amax
in the United States, Canada and the North Island of New Zealand. Amax sold
approximately 13% of the then outstanding shares of Common Stock of the Company
in the Company's initial public offering in July 1987. On November 15, 1993,
Amax was merged with and into Cyprus Minerals Company (the "Cyprus Amax
Merger"), which was renamed Cyprus Amax Minerals Company ("Cyprus Amax").
Immediately prior to the Cyprus Amax Merger, Amax, which at that time held
approximately 68% of the Company's outstanding Common Stock, distributed
approximately 21.8 million shares (approximately 28%) of the Company's Common
Stock (together with all of the outstanding shares of common stock of Alumax
Inc., a Delaware corporation that controlled Amax's aluminum business) in a
distribution to its stockholders. Immediately following the stock distribution
and the Cyprus Amax Merger, Cyprus Amax indirectly held approximately 31.3
million shares of the Company's Common Stock, which constituted approximately
40% of the then outstanding shares of Common Stock of the Company. Subsequent
to the Cyprus Amax Merger, the Company and Cyprus Amax entered into a $100
million double convertible revolving line of credit (the "DOCLOC Agreement"),
under which the Company could issue up to 12,099,213 shares of Common Stock to
Cyprus Amax, and a stock purchase agreement providing for the purchase of
3,000,000 shares of the Company's Common Stock by Cyprus Amax (the "Stock
Purchase Agreement"), both of which agreements are subject to stockholder
approval. The issuance of Common Stock under these two agreements with Cyprus
Amax could potentially increase Cyprus Amax's share of the outstanding shares
of the Company's Common Stock to approximately 46.4 million shares (or
approximately 49.7% prior to any sale of any Common Stock hereunder). See "Risk
Factors--Stock Ownership of Cyprus Amax."
The Company's Common Stock is listed on the New York and Toronto Stock
Exchanges and certain warrants to purchase the Company's Common Stock are
listed on the American and Toronto Stock Exchanges. The Company's executive
offices are located at 9100 East Mineral Circle, Englewood, Colorado 80112, and
its telephone number is (303) 643-5500.
4
<PAGE>
RISK FACTORS
Prospective purchasers of Common Stock should carefully read this
Prospectus and the documents incorporated by reference herein. Ownership of
Common Stock involves certain risks. In determining whether to purchase Common
Stock, prospective investors should consider carefully the following risk
factors and the other information contained in this Prospectus.
PROJECT DEVELOPMENT RISKS
The Company's principal development projects are an indirect 50% interest in
the Refugio gold project and a 100% interest in the Fort Knox gold project. In
addition, the Company has a 62.5% joint venture interest in the Haile gold
project. The Company has completed feasibility studies for the Refugio and Fort
Knox projects. There can be no assurance, however, that all of the remaining
permits and regulatory approvals required for development of these projects
will be issued in the time frame contemplated by the Company. Currently, the
Company estimates that the additional capital expenditures for the Refugio and
Fort Knox projects will total approximately $370 million to $410 million (of
which the Company's share is between $310 million and $340 million in addition
to capitalized acquisition and development costs of approximately $205 million
as of December 31, 1993). The Company's estimated capital expenditures for the
Refugio and Fort Knox projects are based upon currently available data and
could increase or decrease depending upon a number of factors beyond the
Company's control. In addition, the Company will not be able to commence
construction until financing has been arranged. There can be no assurance that
such financing can be arranged. Production will not commence until virtually
all of the capital expenditures have been incurred. If capital expenditures are
higher than currently estimated, additional financing may be required, and
there can be no assurance that such additional financing will be available.
Development projects have no operating history upon which to base estimates
of future cash operating costs. Particularly for development projects,
estimates of reserves and cash operating costs are, to a large extent, based
upon the interpretation of geologic data obtained from drill holes and other
sampling techniques, and feasibility studies which derive estimates of cash
operating costs based upon anticipated tonnage and grades of ore to be mined
and processed, the configuration of the ore body, expected recovery rates of
the gold from the ore, comparable facility and equipment operating costs,
anticipated climatic conditions and other factors. As a result, it is possible
that actual cash operating costs and economic returns may differ significantly
from those currently estimated. It is not unusual in new mining operations to
experience unexpected problems during the start-up phase. For example, the
Company experienced such problems at its Hayden Hill mine during the second
half of 1992 and the first half of 1993. See "Reserve Estimates."
GOLD PRICE VOLATILITY
The profitability of the Company's operations can be significantly affected
by changes in the market price of gold. The market price of gold has fluctuated
widely and is affected by numerous factors beyond the Company's control,
including international economic trends, currency exchange fluctuations,
expectations for inflation, speculative activities, consumption patterns (such
as purchases of gold jewelry and the development of gold coin programs),
purchases and sales of gold bullion holdings by central banks or other large
gold bullion holders or dealers and global or regional political events,
particularly in major gold-producing countries such as South Africa and some of
the countries that formerly comprised the Soviet Union. Gold market prices are
also affected by worldwide production levels, which have increased in recent
years. The aggregate effect of these factors, all of which are beyond the
Company's control, is impossible for the Company to predict. In addition, the
market price of gold has on occasion been subject to rapid short-term changes
because of market speculation. The following table sets forth for the years
indicated the high and low selling prices of gold, first position, as provided
by the Commodity Exchange, Inc. ("COMEX") in New York and the approximate
average selling price for such years:
5
<PAGE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------------
1994(1) 1993 1992 1991 1990 1989 1988 1987
------- ---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
High................................. $394 $407 $359 $403 $422 $419 $487 $497
Low.................................. $371 $326 $330 $344 $347 $358 $394 $392
Average.............................. $383 $360 $344 $362 $384 $382 $437 $447
</TABLE>
- --------
(1) Through June 30, 1994.
If the gold price is below the Company's cash production costs and remains
below such level for any sustained period, the Company could experience
additional losses and could determine that it is not economically feasible to
continue commercial production at some or all of its operations or to continue
the development of some or all of its projects. While the Company has
historically used hedging techniques successfully to reduce the Company's
exposure to such volatility, there can be no assurance that it will be able to
do so effectively in the future.
RESERVE ESTIMATES
While the Company's ore reserves have been reviewed by independent
consultants, the ore reserve estimates presented in this Prospectus or
incorporated herein by reference are necessarily imprecise and depend to some
extent on statistical inferences drawn from limited drilling, which may, on
occasion, prove unreliable. Should the Company encounter mineralization or
formations at any of its mines or projects different from those predicted by
drilling, sampling and similar examinations, reserve estimates may have to be
adjusted and mining plans may have to be altered in a way that might adversely
affect the Company's operations. Moreover, short-term operating factors
relating to the ore reserves, such as the need for sequential development of
ore bodies and the processing of new or different ore grades, may adversely
affect the Company's profitability in any particular accounting period.
Declines in the market price of gold may also render ore reserves containing
relatively lower grades of gold mineralization, such as those currently
identified at the Company's Hayden Hill mine and at the Company's Refugio and
Fort Knox projects, uneconomic to exploit unless the utilization of forward
sales or other hedging techniques is sufficient to offset the effects of a drop
in the market price of the gold expected to be mined from such reserves.
Proven/probable reserves at the Company's mines and development projects were
calculated at December 31, 1993 based upon varying gold prices ranging from
$300 per ounce of gold for Refugio to $375 and $400 per ounce of gold for the
Company's other properties. If the Company's realized price per ounce of gold,
including hedging benefits, were to decline substantially below these levels
for an extended period, there could be material delays in the development of
new projects, increased net losses, reduced cash flow, reductions in reserves
and asset write-downs.
In July 1993, the Company determined, as a result of its first year's mining
experience and a thorough reevaluation of geologic data, that the mill grade
ore at the Hayden Hill mine occurs in thinner, less continuous structures than
was originally interpreted. As a result, the Company restated its
proven/probable reserves at Hayden Hill to reclassify a significant portion of
the deposit as a mineralized material until such time, if ever, that additional
data from drilling and further mining establish otherwise. As a result of the
restatement of the Hayden Hill reserves and the decision to reconfigure the
mine as a heap leach operation and place the mill on standby status, the
Company recognized a $64.1 million pre-tax ($41.9 million after-tax) write-down
of the Hayden Hill asset as of June 30, 1993. In addition, after seven years of
operation, recent production experience and a reinterpretation of geologic and
metallurgical data at the Sleeper mine during the fourth quarter of 1993 led to
a reduction of the proven/probable ore reserves at that mine. As a result, Amax
Gold recognized a $23.6 million pre-tax ($15.6 million after-tax) write-down of
the Sleeper asset as of December 31, 1993. See Note 7 to Consolidated Financial
Statements in the Company's 1993 Form 10-K incorporated by reference herein.
6
<PAGE>
ENVIRONMENTAL RISKS
Mining is subject to potential risks and liabilities associated with
pollution of the environment and the disposal of waste products occurring as a
result of mineral exploration and production. While the Company currently has
insurance against environmental risks (including potential liability for
pollution or other hazards as a result of the disposal of waste products
occurring from exploration and production) through Cyprus Amax, such insurance
may not always be available at a reasonable price. To the extent the Company
is subject to environmental liabilities, the payment of such liabilities would
reduce funds otherwise available to the Company and could have a material
adverse effect on the Company. Should the Company be unable to fully fund the
cost of remedying an environmental problem, the Company might be required to
suspend operations or enter into interim compliance measures pending
completion of the required remedy. The potential exposure may be significant
and could have a material adverse effect on the Company.
In the context of environmental permitting, including the approval of
reclamation plans, the Company must comply with standards, laws and regulations
which may entail greater or lesser costs and delays depending on the nature of
the activity to be permitted and how stringently the regulations are
implemented by the permitting authority. It is possible that the costs and
delays associated with compliance with such laws, regulations and permits could
become such that the Company would not proceed with the development of a
project or the operation or further development of a mine. Laws and regulations
involving the protection and remediation of the environment are constantly
changing and are generally becoming more restrictive. The Company has made, and
expects to make in the future, significant expenditures to comply with such
laws and regulations.
Pending bills which affect environmental laws applicable to mining include
versions which may substantially alter the Clean Water Act, Safe Drinking Water
Act, Endangered Species Act and a bill which will introduce additional
protection of wetlands (Wetlands Protection and Management Act). Adverse
development and operating requirements in these acts could impair the ability
of the Company as well as others to develop mineral resources. Revisions to
current versions of these bills could occur prior to passage.
The Environmental Protection Agency ("EPA") continues the development of a
solid waste regulatory program specific to mining operations under the Resource
Conservation and Recovery Act ("RCRA"). Of particular concern to the mining
industry is a proposal by EPA titled "Recommendations for a Regulatory Program
for Mining Waste and Materials Under Subtitle D of the Resource Conservation
and Recovery Act" ("Strawman II") which, if implemented, would create a system
of comprehensive federal regulation of the entire mine site. Many of these
requirements would be duplicative of existing state regulations. Strawman II as
currently proposed would regulate not only mine and mill wastes, but also
numerous production facilities and processes which could limit internal
flexibility in operating a mine. To implement Strawman II as proposed, the EPA
must seek additional statutory authority, which is expected to be requested in
connection with Congress' reauthorization of the RCRA.
Operations at the Company's Guanaco mine and development of the Company's
Refugio project are subject to regulation under the laws of Chile. In March
1994, the country's first comprehensive environmental framework law became
effective. Among other things, this law (i) provides for the establishment of a
comprehensive program for the issuance of permits for future exploration and
mining activities, (ii) imposes the obligation to perform environmental impact
analyses for mining and exploration projects or activities, (iii) creates a
liability scheme for forms of environmental damage, and (iv) contemplates the
issuance of regulations which will impose operating standards. The full impact
of the new law on the mining industry in Chile is unclear at present.
OTHER GOVERNMENTAL REGULATION
The Company's mining operations and exploration activities are subject to
extensive federal, state, local and foreign laws and regulations governing
exploration, development, production, exports, taxes, labor
7
<PAGE>
standards, occupational health, mine safety and other matters. The Company
believes that it is in substantial compliance with all such material laws and
regulations. New laws and regulations, amendments to existing laws and
regulations, or more stringent implementation of existing laws and regulations
could have a material adverse impact on the Company, prohibit, reduce or delay
production at operating mines or prevent the development of new mining
properties.
PROPOSED FEDERAL LEGISLATION
The U.S. Congress is actively considering a proposed major revision of the
General Mining Law, which governs mining claims and related activities on
federal public lands. The Senate and House of Representatives each has passed a
separate bill for mining law revisions and following conference committee
action, a law may be enacted before the end of 1994. The Company anticipates
that when this law is effective, it will impose a royalty upon production of
minerals from federal lands and will contain new requirements for mined land
reclamation and similar environmental control and reclamation measures. It
remains unclear to what extent such new legislation will affect existing
mining claims and operations. The effect of any revision of the General Mining
Law on the Company's United States operations cannot be determined
conclusively until such revision is enacted; however, such legislation could
materially increase costs at Hayden Hill, which is primarily located on
federal lands, and could impair the Company's ability to develop future
mineral prospects on unpatented mining claims. Because the Refugio, Fort Knox
and Haile projects are not on federal lands, none of these projects would be
subject to such currently proposed federal legislation.
FOREIGN OPERATIONS
Foreign operations and investments are subject to the risks normally
associated with conducting business in foreign countries, including foreign
exchange controls and currency fluctuations, limitations on repatriation of
earnings, foreign taxation, laws or policies of particular countries, labor
disputes and uncertain political and economic environments as well as risks of
war and civil disturbances or other risks which could cause production
difficulties or stoppages, restrict the movement of funds or result in the
deprivation or loss of contract rights or the taking of property by
nationalization or expropriation without fair compensation. Foreign operations
could also be impacted by laws and policies of the United States affecting
foreign trade, investment and taxation. The Company currently has significant
operations and a significant development project in Chile, a nominal interest
in a mine in New Zealand and an option on an exploration prospect in Panama.
EXPLORATION RISKS
Mineral exploration, particularly for gold, is highly speculative in nature,
involves many risks and frequently is nonproductive. There can be no assurance
that the Company's mineral exploration efforts will be successful. Once
mineralization is discovered, it usually takes a number of years from the
initial phases of exploration until production is possible, during which time
the economic feasibility of production may change. Substantial expenditures are
required to establish ore reserves through drilling, to determine metallurgical
processes to extract the metal from the ore and, in the case of new properties,
to construct mining and processing facilities. As a result of these
uncertainties, no assurance can be given that the Company's exploration
programs will result in the expansion or replacement of existing reserves, some
of which are being depleted by current production.
The Company expects to enter into an Exploration Joint Venture Agreement (the
"Exploration JV") with Cyprus Amax effective January 1, 1994, under which the
Company and Cyprus Amax will pool their efforts for the principal purpose of
discovering and developing future gold prospects, with Cyprus Amax providing
75% and the Company providing 25% of the initial exploration funding for such
prospects. Such Exploration JV is expected to broaden the geographic reach of
the Company's gold exploration program and reduce its cost by sharing key
personnel and spreading the high risks associated with exploration.
Nevertheless, the Company will initially have only a 25% interest in any
prospects discovered through the
8
<PAGE>
Exploration JV. Cyprus Amax's 75% interest in gold prospects developed through
the Exploration JV will be available for Amax Gold to purchase prior to a
decision to place such prospect in production, but only at the then fair market
value for such interest (which may be determined by mutual agreement). This
could ultimately increase the Company's cost of acquiring such prospects.
MINING RISKS AND INSURANCE
The business of gold mining generally is subject to a number of risks and
hazards, including environmental hazards, industrial accidents and rock falls,
labor disputes, flooding, interruptions due to inclement or hazardous weather
conditions and other acts of God. Such risks could result in damage to, or
destruction of, mineral properties or production facilities, personal injury,
environmental damage, process and production delays, monetary losses and
possible legal liability. While the Company maintains through Cyprus Amax, and
intends to continue to maintain, insurance consistent with industry practice,
no assurance can be given that such insurance will continue to be available, be
available at economically acceptable premiums or be adequate to cover any
resulting liability.
TITLE TO PROPERTIES
The validity of unpatented mining claims, which constitute a significant
portion of the Company's property holdings in the United States, is often
uncertain and may be contested. Three of the Company's properties--the Sleeper
mine, the Wind Mountain mine and a portion of the Hayden Hill mine--are located
on unpatented federal lode and placer mining claims. In addition, most of the
Company's exploration properties in the United States also consist of
unpatented federal mining claims or leases of such claims. Unpatented mining
claims are unique property interests and are generally considered subject to
greater title risk than patented mining claims and real property interests
owned in fee simple. Substantially all of the Fort Knox property is located on
Alaska State mining claims which are subject to certain title risks similar to
those affecting federal unpatented mining claims. In addition, these lands have
been included in a list of lands submitted to the Alaska State Legislature to
help reconstitute the Alaska Mental Health Trust (the "Trust") pursuant to
legislation enacted in May 1994 amending legislation enacted in June 1991. If
the Fort Knox lands are conveyed to the Trust, the conveyance would be subject
to all encumbrances or interests of record, including the upland mining lease,
millsite permit and other permits already issued by the State of Alaska, and
rentals and royalties would be payable to the Trust rather than to the State of
Alaska. The Trust could potentially assert its interests with respect to any
applications for future permits or rights (or applications for material
modifications, if any, to existing permits or rights) and could at some time
attempt to increase the amount of royalties payable with respect to production
from the Fort Knox property.
The Company has filed a patent application with the United States Bureau of
Land Management ("BLM") for certain claims at its Sleeper mine, and the BLM has
issued a Mineral Entry Final Certificate for these claims; however, there can
be no assurance that the BLM will grant a patent for such claims. The Company
has not filed a patent application for any of its other properties and, under
proposed legislation to change the General Mining Law, patents may not be
obtainable for such other properties. Although the Company has attempted to
acquire satisfactory title to its undeveloped properties, the Company does not
generally obtain title opinions until financing is sought to develop a
property, with the attendant risk that title to some properties, particularly
title to undeveloped properties, may be defective. Mining operations in Chile
are conducted under concession or mining leases issued pursuant to applicable
laws.
STOCK OWNERSHIP OF CYPRUS AMAX
As of June 30, 1994, Cyprus Amax held approximately 40% of the outstanding
shares of the Company's Common Stock. As a result of the DOCLOC Agreement and
the Stock Purchase Agreement, Cyprus Amax's share of outstanding shares of the
Company's Common Stock could potentially increase to approximately 49.7% prior
to any sale of Common Stock hereunder. Directors and officers of Cyprus Amax
comprise four of the six members of the Company's Board of Directors. Milton H.
Ward, Co-Chairman of
9
<PAGE>
the Board, President and Chief Executive Officer of Cyprus Amax, is the
Chairman of the Board, President and Chief Executive Officer of Amax Gold;
Gerald J. Malys, Senior Vice President and Chief Financial Officer of Cyprus
Amax, is a director of Amax Gold; Allen Born, Co-Chairman of Cyprus Amax, is a
director of Amax Gold; and Rockwell A. Schnabel, a director of Cyprus Amax, is
a director of Amax Gold.
The Company is also dependent upon Cyprus Amax with respect to the provision
of certain services to the Company including exploration, insurance,
accounting, cash management and other administrative services. These services
are provided by Cyprus Amax under agreements, some of which may be terminated
on 180 days prior notice. New agreements are currently being negotiated between
the Company and Cyprus Amax to replace certain agreements in place with Amax at
the time of the Cyprus Amax Merger. In addition, the Company rents its
principal offices from Cyprus Amax. As of March 31, 1994, the Company owed
$25.4 million to Cyprus Amax, primarily as a result of advances that were made
by Amax to the Company prior to the Cyprus Amax Merger, and Cyprus Amax had
guaranteed $53.7 million of the Company's indebtedness. In addition, pursuant
to the Stock Purchase Agreement, Cyprus Amax will purchase 3,000,000 shares of
Common Stock at a purchase price of $6.888 per share, the average closing price
per share of Common Stock for the ten-day period prior to the signing of the
commitment letter. The proceeds of the sale will be used to retire indebtedness
owed by Amax Gold to Cyprus Amax. Cyprus Amax has also entered into the DOCLOC
Agreement to make available to the Company a $100 million double convertible
revolving line of credit. Outstanding indebtedness under the DOCLOC Agreement
may be repaid by the Company issuing a like amount of its newly created $2.25
Series A Convertible Preferred Stock, which may be converted by Cyprus Amax
into a maximum of 12,099,213 shares of the Company's Common Stock at $8.265 per
share, a 20% premium over the average closing price per share of Common Stock
for the ten-day period prior to the signing of the commitment letter. The
Company will have the right to redeem such Convertible Preferred Stock with the
Company's Common Stock at a price per share equal to the greater of $5.854 or
the average closing price per share (up to $8.265) for a predetermined period
prior to redemption. The ability of the Company to issue its Series A
Convertible Preferred Stock to repay indebtedness owed to Cyprus Amax under the
DOCLOC Agreement and to issue Common Stock upon conversion or redemption of
such Series A Convertible Preferred Stock and the issuance of the shares of
Common Stock to Cyprus Amax under the Stock Purchase Agreement are conditioned
upon the Company's obtaining the approval of its stockholders by the
affirmative vote of 66 2/3% of the shares of the Company's outstanding Common
Stock which are not owned by Cyprus Amax and the affirmative vote of 50% of all
outstanding shares of the Company's Common Stock at a special meeting of
stockholders. The acquisition by Cyprus Amax of 3,000,000 shares of Common
Stock under the Stock Purchase Agreement, combined with the potential issuance
of up to 12,099,213 shares of Common Stock under the DOCLOC Agreement, could
increase Cyprus Amax's ownership of the Company's outstanding shares of Common
Stock to approximately 49.7%.
10
<PAGE>
SELLING STOCKHOLDERS
The following table shows the names of the Selling Stockholders, the number
of shares of Company Common Stock owned beneficially by each of them, or their
nominees, as of July 11, 1994, and the number of shares which may be offered
pursuant to this Prospectus (such offered shares shall be referred to herein
as the "Stockholder Securities"). This information is based on information
provided by the Selling Stockholders or their representatives. Because the
Selling Stockholders may offer all, some or none of the Stockholder Securities
which they hold, no definitive estimate can be given as to the number of
Stockholder Securities that will be held by the Selling Stockholders upon
termination of such offering. Shares of Common Stock held by Selling Stock-
holders may be sold either pursuant to the Registration Statement of which this
Prospectus is a part or pursuant to Rule 144 under the Securities Act.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES SHARES BENEFICIALLY
OWNED BEFORE SALES OFFERED FOR SELLING OWNED AFTER SALES
UNDER THIS PROSPECTUS STOCKHOLDER'S ACCOUNT(1) UNDER THIS PROSPECTUS(2)
---------------------------- ------------------------ -----------------------------
SELLING STOCKHOLDER NUMBER PERCENTAGE NUMBER NUMBER PERCENTAGE
- ------------------- ------------- -------------- ------ ------------- --------------
<S> <C> <C> <C> <C> <C>
Paul W. MacAvoy......... 2,533 ** 2,509 24 **
Emil Mosbacher Jr....... 10,542 ** 7,249 3,293 **
</TABLE>
- --------
** Less than one percent (1%) of Common Stock outstanding June 30, 1994.
(1) Figures in this column consist of shares issued pursuant to employee
benefit plans, as that term is defined under Rule 405 of the Securities Act.
(2) Figures in this column assume the sale by the Selling Stockholders of all
of their Stockholder Securities.
PLAN OF DISTRIBUTION
The shares of Common Stock covered by this Prospectus may be offered or sold
from time to time by the Selling Stockholders, or by pledgees, donees,
transferees or other successors in interest. Such sales may be made on the New
York Stock Exchange and/or the Toronto Stock Exchange, in block trades,
pursuant to purchases by a broker or a dealer as principal, in private
transactions or otherwise, at prices then prevailing in the market or at
negotiated prices. The Company will not receive any of the proceeds from sales
by Selling Stockholders.
Any broker or dealer involved in the offer or sale of the shares included
herein may receive brokerage commissions or discounts. To the knowledge of the
Company, there is currently no agreement with any broker or dealer respecting
such transactions. Upon sale of such shares, any or all of the Selling
Stockholders or anyone effecting sales on behalf of the Selling Stockholders
may be deemed an underwriter, as that term is defined in the Securities Act.
None of the Selling Stockholders believes he is an underwriter within the
meaning of the Securities Act. All expenses of the registration of the Common
Stock covered by this Prospectus are to be borne by the Company.
LEGAL MATTERS
The validity of the issuance of the shares of Common Stock described herein
will be passed upon by Paul J. Hemschoot Jr., Vice President, Secretary and
General Counsel of the Company.
EXPERTS
The financial statements and schedules incorporated by reference in this
Prospectus and elsewhere in the Registration Statement have been audited by
Coopers and Lybrand, independent accountants, as indicated in their reports
with respect thereto, and are included herein in reliance upon the authority
of said firm as experts in giving said reports.
11
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
3. Incorporation of Documents by Reference.
Amax Gold Inc. (the "Company" or "Registrant"), hereby states that the
following documents filed with the Securities and Exchange Commission (the
"Commission") are hereby incorporated or deemed to be incorporated in this
Registration Statement by reference as of their date of filing with the
Commission:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993 (No. 1-9620), filed with the Commission on March 18,
1994, pursuant to Section 13(a) or 15(d) of the Exchange Act of 1934 (the
"Exchange Act").
(b) The Company's Quarterly Report on Form 10-Q for the period ended
March 31, 1994 filed on May 16, 1994, (No. 1-9620) pursuant to Section 13(a) or
15(d) of the Exchange Act.
(c) The Company's Current Report on Form 8-k, dated March 7, 1994.
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8A (No. 1-9617), filed with the
Commission pursuant to the Exchange Act on July 9, 1987, as amended by filings
on Form 8 constituting Amendment No. 1 to the Form 8A, filed with the Commission
on July 28, 1987.
All other documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and prior to the filing of a Post-Effective
Amendment to this Registration Statement indicating that all securities offered
under the Registration Statement have been sold, or deregistering all securities
then remaining unsold, are also incorporated herein by reference and shall be a
part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by, or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
4. Description of Securities.
Not applicable.
II-1
<PAGE>
5. Interests of Named Experts and Counsel.
Mr. Paul J. Hemschoot, Jr. is Vice President, Secretary and General Counsel
to the Company and is providing the opinion filed as Exhibit 5.1 to the
Registration Statement. Mr. Hemschoot is beneficial owner of 8,432 shares of
Common Stock of the Company, including shares beneficially owned under benefit
plans of the Company and shares issuable pursuant to options exercisable
within 60 days.
6. Indemnification of Directors and Officers.
Article SIXTH of the Company's Restated Certificate of Incorporation and
Article VI of the Company's Bylaws (collectively the "Governance Documents")
confers on the Company's officers and directors indemnification rights.
Section 102 of the Delaware General Corporation Law (the "Delaware Law")
allows a corporation to eliminate the personal liability of a director of a
corporation to the corporation or to any of its stockholders for monetary
damage for a breach of his fiduciary duty as a director, except in the case
where the director breached his duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or knowingly violated a law, authorized the
payment of a dividend or approved a stock repurchase in violation of Delaware
corporate law or obtained an improper personal benefit. Article SIXTH of the
Company's Restated Certificate of Incorporation eliminates directors' personal
liability in accordance with such Section 102 of the Delaware Law.
Section 145 of the Delaware Law authorizes corporations to indemnify
directors and officers against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement reasonably incurred in connection with
civil, criminal, administrative, or investigative actions, suits or proceedings
to which such persons are parties or threatened to be made a party by reason of
their corporate position (other than actions by or in the right of the
corporation to procure a judgment in its favor--so called "derivative suits")
if such persons acted in good faith and in a manner they reasonably believed to
be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe their conduct was unlawful. With respect to derivative suits, Section
145 prescribes a similar standard of care but limits the available
indemnification to expenses (including attorneys' fees) reasonably incurred in
connection with the defense or settlement of such action or suit and further
provides that if the derivative suit results in a judgment that the person
seeking indemnification is liable to the corporation, no such indemnification
is to be made without court approval. Section 145(f) of the Delaware Law also
specifically permits corporations to provide their officers, directors,
employees and agents with indemnification and advancement of expenses in
addition to those specifically required and/or permitted to be provided
pursuant to other provisions of such Section 145.
Under the provisions of the Governance Documents, each person who was or is
made a party to, or is threatened to be made a party to or is involved in, any
action, suit or other legal proceeding (whether civil, criminal, administrative
or investigative) by reason of the fact that such person is or was a director
or officer of the Company, or is or was performing services at the Company's
request for another entity, including service with respect to employee benefit
plans, shall be indemnified to the full extent permitted by Delaware Law as in
effect or as it may be amended against all costs, charges, expenses,
liabilities and losses (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred by such person in connection with such proceeding. The
rights to indemnification conferred pursuant to the Governance Documents are
contract rights and include the right to receive payment for expenses of
defending a proceeding as to which there may be a right to indemnification
prior to its final disposition, provided that if the Delaware Law requires (and
it currently does), such advance payment shall be made only upon receipt by the
Company of an undertaking to the effect that all amounts so advanced will be
repaid if it is ultimately found that the party who received such amounts is
not entitled to be indemnified. The effect of providing that the
indemnification rights are contract rights is to permit indemnified individuals
to enforce such provisions directly against the Company. In addition, the
Governance Documents authorize the Company to provide other permissible
indemnification. Finally, the Governance Documents provide that the Company may
(and it does) maintain insurance to protect itself and any of its officers,
directors, employees or agents, to the limit of such coverage, against any
expense, liability or loss, even if the Company would not have the power itself
to indemnify such person against such expense, liability or loss under the
Delaware Law.
II-2
<PAGE>
7. Exemption from Registration Claimed.
Not applicable.
8. Exhibits
4.1 Deferred Compensation Plan For Members of the Board of Directors of
Amax Gold Inc.
4.2 Stock Grant Plan For Nonemployee Directors of Amax Gold Inc.
4.3 Amax Gold Inc. 1992 Stock Option Plan.
4.4 Amax Gold Inc. Performance Share Plan.
4.5 Specimen Director Deferral Agreement for Deferred Compensation Plan
for Members of the Board of Directors of Amax Gold Inc.
4.6 Specimen Option Agreement For Grant of Incentive and/or NonQualified
Stock Option.
5.1 Opinion and Consent of Paul Hemschoot Jr., Esq., General Counsel of
Amax Gold Inc.
23.1 Consent of General Counsel. See Exhibit 5.1.
23.2 Consent of Coopers & Lybrand.
9. Undertakings
A. The undersigned Registrant hereby undertakes: (1) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this Registration Statement to include any material information with respect to
the plan of distribution not previously disclosed in the Registration Statement,
or any material change to such information in the Registration Statement; (2)
that, for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and (3) to remove from registration by means of a post-
effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
II-3
<PAGE>
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that is incorporated by
reference in the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Englewood, County of Arapahoe, State of Colorado, on
the 13th day of July, 1994.
AMAX GOLD INC.
By:/s/ Paul J. Hemschoot
--------------------------------------------
Paul J. Hemschoot, Jr.
Vice President, Secretary and General Counsel
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the date indicated.
Signature Title Date
--------- --------- --------
/s/ Milton H. Ward Chairman of the Board, President July 13, 1994
- --------------------------- Chief Executive Officer and Director
Milton H. Ward (Principal Executive Officer)
/s/ Mark A. Lettes Vice President - Finance July 13, 1994
- --------------------------- and Chief Financial Officer
Mark A. Lettes (Principal Financial Officer)
/s/ Pamela L. Saxton Vice President and Controller July 13, 1994
- --------------------------- (Principal Accounting Officer)
Pamela L. Saxton
/s/ Allen Born Director July 13, 1994
- ---------------------------
Allen Born
/s/ Gerald J. Malys Director July 13, 1994
- ---------------------------
Gerald J. Malys
II-5
<PAGE>
/s/ Rockwell A. Schnabel Director July 13, 1994
- --------------------------
Rockwell A. Schnabel
/s/ Vernon F. Taylor, Jr. Director July 13, 1994
- ---------------------------
Vernon F. Taylor, Jr.
/s/ Russell L. Wood Director July 13, 1994
- ---------------------------
Russell L. Wood
II-6
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
No. Description Page No.
- --------------------------------------------------------------------------------
4.1 Deferred Compensation Plan For Members of the Board of Directors of
Amax Gold Inc.
4.2 Stock Grant Plan For Nonemployee Directors of Amax Gold Inc.
4.3 Amax Gold Inc. 1992 Stock Option Plan.
4.4 Amax Gold Inc. Performance Share Plan.
4.5 Specimen Director Deferral Agreement for Deferred Compensation Plan
for Members of the Board of Directors of Amax Gold Inc.
4.6 Specimen Option Agreement For Grant of Incentive and/or NonQualified
Stock Option.
5.1 Opinion and Consent of Paul Hemschoot Jr., Esq., General Counsel of Amax
Gold Inc.
23.1 Consent of General Counsel. See Exhibit 5.1.
23.2 Consent of Coopers & Lybrand.
<PAGE>
EXHIBIT 4.1
DEFERRED COMPENSATION PLAN
FOR MEMBERS OF THE
BOARD OF DIRECTORS
OF
AMAX GOLD INC.
Effective July 1, 1988
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I - DEFINITIONS
Section 1.01. Title 1
Section 1.02. Definitions 1
ARTICLE II - PARTICIPATION
Section 2.01. Plan is Voluntary 3
Section 2.02. Filing of Application 3
Section 2.03. Designation of Beneficiary 4
ARTICLE III - ACCRUAL OF BENEFITS
Section 3.01. Deferred Compensation 5
Section 3.02. Earnings 5
Section 3.03. Vesting 6
ARTICLE IV - DISTRIBUTION OF BENEFITS
Section 4.01. Time of Distribution 7
Section 4.02. Payment Upon Death 7
Section 4.03. Methods of Payment 7
ARTICLE V - THE ADMINISTRATOR
Section 5.01. Appointment 8
Section 5.02. Rights and Duties 8
Section 5.03. Annual Reports 9
Section 5.04. Information 9
Section 5.05. Compensation, Indemnity
and Liability 9
ARTICLE VI - AMENDMENT AND DISCONTINUANCE
Section 6.01. Amendments 10
Section 6.02. Discontinuance of Plan 10
ARTICLE VII - MISCELLANEOUS
Section 7.01. No Interest in Assets 11
Section 7.02. Restriction Against Assignment 11
Section 7.03. Receipt of Release 12
Section 7.04. Payment on Behalf of Minor 12
Section 7.05. Forfeiture 12
Section 7.06. Withholding 13
Section 7.07. New York Law Governs 13
Section 7.08. Headings No Part of Agreement 13
Section 7.09. Gender 13
Section 7.10. Successors and Assigns 13
</TABLE>
<PAGE>
DEFERRED COMPENSATION PLAN
FOR MEMBERS OF THE
BOARD OF DIRECTORS OF AMAX GOLD INC.
THIS AGREEMENT evidences the terms of a deferred compensation plan for
members of the Board of Directors of Amax Gold Inc.
W I T N E S S E T H:
-------------------
ARTICLE I
DEFINITIONS
-----------
Section 1.01. Title
-----
This plan shall be known as the "Deferred Compensation Plan for Members
of the Board of Directors of Amax Gold Inc.," as now adopted or hereafter
amended.
Section 1.02. Definitions
-----------
Whenever the following terms are used herein, with the first letter
capitalized, they shall have the meanings specified below:
"Account" shall mean the account maintained by the Administrator for each
Participant which is to be credited, as hereinafter set forth, with Stock equal
in value to the amount of the Participant's Compensation which is deferred
pursuant to this Plan, together with the earnings thereon as provided for
herein.
"Administrator" shall mean the individual appointed by the Board of
Directors to administer the Plan.
"Anniversary Date" shall mean the 31st day of December in each year, the
first Anniversary Date to be December 31, 1988.
-1-
<PAGE>
"Beneficiary" or "Beneficiaries" shall mean the person or persons
(including, without limitation, any trustee) last designated by a Participant to
receive the benefits specified hereunder in the event of the Participant's death
or, if there is no designated Beneficiary or surviving Beneficiary, the
Participant's estate.
"Board of Directors" means the Board of Directors of Amax Gold Inc.
"Board Member" shall mean a member of the Board of Directors who is not an
employee of the Company, its parent or its subsidiaries.
"Company" shall mean Amax Gold Inc.
"Compensation" shall mean for any Plan Year all retainer, meeting and
committee fees payable to a Board Member for service on the Board of Directors,
before any reduction pursuant to this Plan.
"Effective Date" shall mean July 1, 1988.
"Participant" shall mean any Board Member who actually participates in this
Plan in any Plan Year and who is entitled to a benefit hereunder.
"Plan Year" shall mean each year beginning on the first day of January and
ending on the 31st day of December, except that the first Plan Year will be the
period beginning on July 1, 1988 and ending December 31, 1988.
"Stock" shall mean Amax Gold Inc. Common Stock, par value $0.01 per share.
-2-
<PAGE>
ARTICLE II
PARTICIPATION
-------------
Section 2.01. Plan is Voluntary
-----------------
Participation in the Plan is voluntary.
Section 2.02. Filing of Application
---------------------
To participate in the Plan for any Plan Year, a Board Member must file a
written application with the Administrator no later than the December 1
immediately preceding such Plan Year, except that for the first Plan Year such
application shall be filed no later than June 1, 1988. The Administrator shall
notify each Board Member of his prospective eligibility to participate in the
Plan at least ten (10) days prior to the time such application must be filed.
Notwithstanding the foregoing, the Administrator may, in his sole and absolute
discretion, accept such an application filed after such December 1 if, in his
judgment, the Board Member's failure to file prior to said date was due to
reasonable cause, but in no event may such application be filed after the
December 31 preceding the Plan Year of participation unless it is an application
of a Board Member who was not a Board Member as of such December 31, in which
case an application must be filed within 30 days of the date the individual
becomes a Board Member. The application for participation shall signify the
Board Member's acceptance of the benefits and terms of the Plan and state the
portion of his Compensation that he elects to defer and the time when the Board
Member desires distribution of his benefits under the Plan. An election to
defer compensation may be revoked or changed for future Plan Years if such
revocation or change is made at least 30 days prior to the beginning of the Plan
Year to which it relates.
-3-
<PAGE>
Section 2.03. Designation of Beneficiary
--------------------------
Upon forms provided by the Administrator, each Participant shall designate
the Beneficiary or Beneficiaries to receive the amount distributable in the
event of such Participant's death. A Participant may from time to time change
the designated Beneficiary or Beneficiaries, without the consent of such
Beneficiary or Beneficiaries, by filing a new designation in writing with the
Administrator. The spouse of a Participant shall join in any designation of the
Beneficiary or Beneficiaries other than such spouse. The Company and the
Administrator may rely upon the Beneficiary designation last filed in accordance
with the terms of the Plan.
-4-
<PAGE>
ARTICLE III
ACCRUAL OF BENEFITS
-------------------
Section 3.01. Deferred Compensation
---------------------
Each Board Member who elects to participate in this Plan for any Plan Year
must irrevocably elect to defer the receipt of all or a specified percentage of
his Compensation in accordance with the terms of Section 2.02. Said amount
shall be credited to such Board Member's Account in accordance with Section 3.02
and shall be paid in accordance with Article IV.
Section 3.02. Earnings
--------
The amount of Compensation that each Participant elects to defer under this
Plan shall increase or decrease in value during the period of deferral based on
the market price of Stock. On the date the Plan is credited with the deferred
Compensation of a Participant (which shall be the same date the Participant
would have received such Compensation had a deferral election not then been in
effect) the Participant's Account shall be credited with a number of shares of
Stock (including fractions) having a value equal to the amount of the
Participant's Compensation deferred on that date. The value of Stock shall be
determined using the closing market price of the Stock on the Composite Tape of
the New York Stock Exchange for that date. If the Composite Tape is not
operating on such date, or Stock is not traded there on such date, the value
shall be computed using the closing price on the next preceding business day on
which such Stock was traded thereon.
Whenever dividends are paid with respect to shares of Stock, each
Participant's Account shall be credited with additional shares of Stock
(including fractions) equal in value to the amount
-5-
<PAGE>
of the dividend paid on a single share of Stock multiplied by the number of
shares of Stock (including fractions) credited to a Participant's Account as
of the date of record for dividend purposes. For purposes of crediting
dividends, the value of Stock shall be determined as of the day dividends are
actually paid on Stock and in the same manner as is used for crediting
deferred Compensation to Accounts.
The amount of Stock in each Participant's Account shall be appropriately
adjusted and modified upon the occurrence of any stock split, reverse stock
split, stock dividend, or stock consolidation. In the event of an acquisition
of the Company, the Board of Directors shall have the authority to amend the
Plan to provide for conversion of Stock credited to Participants' Accounts
into stock of the acquiring company (or a related company), if such stock is
publicly traded, or, if not, into cash of equal value on the date of
acquisition. If cash is credited to Participants' Accounts, income shall be
credited thereto from the date of acquisition to the date of distribution at
the base rate of Citibank, N.A., as in effect from time to time during such
period. If publicly traded stock of the acquiring company (or a related
company) is credited to Participants' Accounts, dividends shall be credited
thereto in the same manner as dividends are credited on Stock credited to
Accounts. Notwithstanding Section 4.03, if cash or such publicly traded stock
is credited to Participants' Accounts, distribution shall be in the medium
credited to Participants' Accounts.
Section 3.03. Vesting
-------
The interest of each Participant in any benefit accrued hereunder shall be
fully vested and non-forfeitable at all times.
-6-
<PAGE>
ARTICLE IV
DISTRIBUTION OF BENEFITS
------------------------
Section 4.01. Time of Distribution
--------------------
A Participant may elect to have the balance of his Account distributed to
him (i) as soon as reasonably possible after the Participant ceases to be a
Board Member, or (ii) on the January 1 occurring a stated number of years
after the Participant ceases to be a Board Member. Such an election shall be
made on the application filed pursuant to Section 2.02 and shall be
irrevocable once made.
Section 4.02. Payment Upon Death
------------------
Notwithstanding any election under Section 4.01, if a Participant dies
prior to distribution of his Account, the balance of the credit of the
Participants' Account as of the date of death shall be paid, as soon as
reasonably possible thereafter, to the Participant's Beneficiary or
Beneficiaries.
Section 4.03. Methods of Payment
------------------
All distributions under the Plan shall be in the form of a single lump sum.
Each such lump sum shall consist of shares of Stock equal to the number of whole
shares of Stock credited to the Participant's Account on the date as of which
the distribution occurs and a cash payment for any fraction of a share. Each
Participant, or Beneficiary, agrees that prior to distribution of any benefit
under the Plan, he will make such representations and execute such documents as
are deemed by the Administrator necessary to comply with applicable securities
laws.
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<PAGE>
ARTICLE V
THE ADMINISTRATOR
-----------------
Section 5.01. Appointment
-----------
An Administrator shall be appointed by the Board of Directors to administer
the Plan as provided herein.
Section 5.02. Rights and Duties
-----------------
The Administrator, on behalf of the Participants and their Beneficiaries,
shall enforce the Plan in accordance with its terms, shall be charged with the
general administration of the Plan, and shall have all powers necessary to
accomplish those purposes including, but not by way of limitation, the
following:
(a) to compute and certify the amount and kind of benefits payable to
Participants and their Beneficiaries;
(b) to maintain or to designate any person or entity to maintain all the
necessary records for the administration of the Plan;
(c) to make and publish such rules for the regulation of the Plan as are
not inconsistent with the terms hereof; and
(d) to provide for disclosure of such information and filing or provision
of such reports and statements to Participants or Beneficiaries under
the Plan as the Administrator deems appropriate.
All action of the Administrator shall be conclusive on all persons interested
in the Plan except to the extent otherwise specifically indicated herein. The
Administrator may appoint a Plan
-8-
<PAGE>
administrator and agents and delegate thereto such powers and duties in
connection with the administration of the Plan as the Administrator may from
time to time prescribe.
Section 5.03. Annual Reports
--------------
The Administrator shall furnish each Participant with an annual report
indicating the number of shares of Stock credited to his Account as of the end
of the preceding calendar year.
Section 5.04. Information
-----------
To enable the Administrator to perform his functions, the Company shall
supply full and timely information to the Administrator on all matters relating
to the compensation of all Participants, their status as Board Members, their
contributions and such other pertinent facts as the Administrator may require.
Section 5.05. Compensation, Indemnity and Liability
-------------------------------------
The Administrator shall serve without bond, except as otherwise required by
law, and without compensation for his services hereunder. All expenses of the
Administrator shall be paid by the Company and the Company shall furnish the
Administrator with such clerical and other assistance as is necessary in the
performance of his duties.
The Administrator shall not be liable for any act or omission on his part,
excepting only his own willful misconduct or gross negligence. The Company
shall indemnify and save harmless the Administrator against any and all expenses
and liabilities arising out of his administration of the Plan, excepting only
expenses and liabilities arising out of his own willful misconduct or gross
negligence.
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<PAGE>
ARTICLE VI
AMENDMENT AND DISCONTINUANCE
----------------------------
Section 6.01. Amendments
----------
The Board of Directors shall have the right to amend the Plan from time to
time and to amend or cancel any amendments; provided, however, that no amendment
shall reduce any amount already credited to a Participant's Account as of the
effective date of such amendment.
Section 6.02. Discontinuance of Plan
----------------------
It is the expectation of the Company that the Plan will be continued
indefinitely, but continuance of the Plan is not assumed as a contractual
obligation of the Company and the right is reserved by the Company at any time
to reduce, suspend or discontinue the Plan; provided, however, the Company shall
in no event have the power to reduce the amount already credited to a
Participant's Account as of the effective date of any such reduction, suspension
or discontinuance, nor to discontinue the crediting of earnings on such amounts
subsequent to said date. In the event of a reduction, suspension or
discontinuance of the Plan, the payment of benefits accrued hereunder shall
continue to be made in accordance with the provisions of the Plan.
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<PAGE>
ARTICLE VII
MISCELLANEOUS
-------------
Section 7.01. No Interest in Assets
---------------------
No Participant, Beneficiary or any other person shall have any interest in
any shares of Stock credited to a Participant's Account or in any specific asset
of the Company by reason of any amount credited to him hereunder, nor any right
to receive any distribution under the Plan except as and to the extent expressly
provided in the Plan. There shall be no funding of any benefits which may
become payable hereunder. No trust shall be created in connection with or by
the execution or adoption of this Plan. Any benefits which become payable
hereunder shall be paid from the general assets of the Company. Nothing in the
Plan shall be deemed to give any Board Member any right to participate in the
Plan, except in accordance with the provisions of the Plan.
Section 7.02. Restriction Against Assignment
------------------------------
The Company shall pay all amounts payable hereunder only to the person or
persons designated in accordance with the Plan and not to any other person or
corporation. No part of a Participant's Account shall be liable for the debts,
contracts or engagements of any Participant, his Beneficiaries or successors in
interest, nor shall it be subject to execution by levy, attachment or
garnishment or by any other legal or equitable proceeding, nor shall any such
person have any right to alienate, anticipate, commute, pledge, encumber, or
assign any benefits or payments hereunder in any manner whatsoever.
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<PAGE>
Section 7.03. Receipt of Release
------------------
Any payment to any Participant or his Beneficiary in accordance with the
provisions of the Plan shall, to the extent thereof, be in full satisfaction of
all claims against the Administrator and the Company and the Administrator may
require such Participant or Beneficiary, as a condition precedent to such
payment, to execute a receipt and release to such effect.
Section 7.04. Payment on Behalf of Minor
--------------------------
In the event any amount becomes payable under the Plan to a minor or a
person who, in the sole judgment of the Administrator, is considered by reason
of physical or mental condition to be unable to give a valid receipt therefor,
the Administrator may direct that such payment be made to any person found by
the Administrator, in his sole judgment, to have assumed the care of such
minor or other person. Any payment made pursuant to such determination shall
constitute a full release and discharge of the Administrator and the Company.
Section 7.05. Forfeiture
----------
Any payment or distribution to a Participant under the Plan which is not
claimed by the Participant, Beneficiary or other person entitled thereto within
three years after becoming payable shall be forfeited and cancelled and shall
remain with the Company and no other person shall have any right thereto or
interest therein. The Company shall not have any duty to give notice that
amounts are payable under the Plan to any person other than the Participant and
the designated Beneficiary or Beneficiaries.
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<PAGE>
Section 7.06. Withholding
-----------
The Company may deduct from the amount of all distributions under the Plan
any taxes required to be withheld by the Federal or any State or local
government.
Section 7.07. New York Law Governs
--------------------
This Plan shall be construed, regulated and administered under the laws of
the State of New York.
Section 7.08. Headings No Part of Agreement
-----------------------------
Headings and subheadings in this Plan are inserted for convenience of
reference only and are not to be considered in the construction of the
provisions hereof.
Section 7.09. Gender
------
The masculine gender as used herein includes the feminine gender.
Section 7.10. Successors and Assigns
----------------------
This Plan shall inure to the benefit of, and be binding upon, the parties
hereto and their successors and assigns.
Executed at Golden, Colorado on this 18th day of May, 1988.
------
Amax Gold Inc.
By /s/ Paul S. Hemschoot, Jr.
----------------------------
Its Secretary
---------------------------
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<PAGE>
EXHIBIT 4.2
STOCK GRANT PLAN
FOR NONEMPLOYEE DIRECTORS OF
AMAX GOLD INC.
Section 1. Purpose. The purpose of this Stock Grant Plan for Nonemployee
Directors of Amax Gold Inc. (the "Plan") is to provide certain incentives and
compensation to eligible directors of Amax Gold Inc. (the "Company"), and to
encourage the highest level of director performance by providing such directors
with a proprietary interest in the Company's success and progress by granting
them shares of the Company's Common Stock ("Shares").
Section 2. Shares Subject to Plan. Subject to Section 6, the maximum number
of Shares that may be granted under the Plan is 100,000. The Shares granted
under the Plan may be either authorized but unissued shares or treasury shares,
as determined from time to time by the Company's Board of Directors (the
"Board").
Section 3. Eligibility. A director will be eligible to participate in the
Plan if the director is not an employee of the Company or of any of its
subsidiaries and is a director on the date of grant. Each eligible director to
whom Shares are granted is referred to as a "Participant." Each grant of Shares
shall be evidenced by a written agreement duly executed and delivered by or on
behalf of the Company and a Participant, if such an agreement is required by
the Company to assure compliance with all applicable laws and regulations.
Section 4. Share Grants. Each eligible director on August 1, 1994, shall be
granted 1,500 Shares on that date, and annually thereafter each eligible
director on the day after the annual stockholder's meeting held in each
subsequent year shall be granted 1,500 Shares; provided that no grant to any
director shall be made in any year when the total number of Shares remaining
available for grants under Section 2 of the Plan is less than the total number
then necessary to make full grants to all eligible directors.
Section 5. Regulatory Compliance and Listing. The issuance or delivery of any
of the Shares may be postponed by the Company for such period as may be
required to comply with any applicable requirements under federal or state
securities laws, any applicable listing requirements of any national securities
exchange, and requirements under any other law or regulation applicable to the
issuance or delivery of such Shares. The Company shall not be obligated to
issue or deliver any of the Shares if the issuance or delivery of such Shares
would constitute a violation of any provision of any law or of any regulation
of any governmental authority or any national securities exchange.
Section 6. Adjustment for Company Changes. In the event of a
recapitalization, stock split, reverse stock split, stock dividend, combination
or exchange of shares, merger, consolidation, reorganization or liquidation, or
any other change in the corporate structure or capital stock of the Company
that equitably requires an adjustment in the Shares then remaining subject to
future grants under the Plan, appropriate adjustment shall be made in the
maximum number of Shares then remaining subject to future grants under the Plan
and in the Shares granted thereafter to eligible directors. A director shall
have the rights of a stockholder of the Company only as to shares actually
acquired by the director under the Plan.
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<PAGE>
Section 7. Interpretation, Amendment, and Termination of the Plan.
(a) Eligible directors and directors to whom shares have been granted may
vote on matters of plan administration, including the grant of Shares.
(b) Either the Board or a committee to whom the Board from time to time may
delegate such authority (the "Committee") shall have the authority to interpret
the provisions of the Plan and to determine the terms and conditions of grants
that may be necessary or advisable to protect the interests of the Company, and
the interpretations and decisions of the Board or the Committee, as the case
may be, in these matters shall be final.
(c) The Board may from time to time amend the Plan, provided that (i) no
amendment that would materially increase the benefits accruing to Participants,
materially increase the number of securities which may be issued under the
Plan, or materially modify the requirements as to eligibility to participate in
the Plan shall become effective without approval of the amendment by the
stockholders, (ii) no other amendment shall become effective without approval
of the amendment by the stockholders if stockholder approval is required to
enable the Plan to satisfy any applicable statutory or regulatory requirements
(including Rule 16b-3 under the Securities Exchange Act of 1934), or if the
Company, on the advice of counsel, determines that stockholder approval is
otherwise necessary or desirable, and (iii) amendments to any provisions of the
Plan describing the eligible directors, stating the number of Shares to be
granted, or specifying the time of the grants shall not be made more than once
every six months, other than to comport with changes in the Internal Revenue
Code, the Employment Retirement Income Security Act, or the rules promulgated
thereunder.
(d) The Board may terminate the Plan at any time.
(e) Notwithstanding any other provision of the Plan, neither the Board nor
the Committee shall be authorized to exercise any discretion with respect to
the selection of persons to receive grants under the Plan or concerning the
amount or timing of grants under the Plan.
Section 8. Miscellaneous.
(a) Nothing in the Plan shall be deemed to create any obligation on the
part of the Board to nominate any director for reelection by the Company's
stockholders or to limit the rights of the stockholders to remove any director.
(b) The Company shall have the right to require, prior to the issuance or
delivery of any Shares, payment by a Participant of any taxes required by law
with respect to the issuance or delivery of such Shares. The Company may take
such action as it may deem necessary or appropriate for the withholding of any
taxes in connection with any grant for which the Company is required to
withhold by any law or regulation of any federal, state or other governmental
authority. Such action may include the cancelling of any portion of a grant of
Shares or withholding from other compensation in an amount sufficient to pay
the required withholding amount.
Section 10. Effective Date of the Plan. The Plan shall become effective as of
August 1, 1994, subject to and conditioned upon obtaining prior approval of the
Plan by the Company's stockholders.
2
<PAGE>
EXHIBIT 4.3
AMAX GOLD INC.
1992 STOCK OPTION PLAN
1. ESTABLISHMENT AND NUMBER OF SHARES. This Stock Option Plan (the "Plan")
shall become effective upon its adoption and approval by the holders of a
majority of all outstanding shares of common stock of Amax Gold Inc. (the
"Company") by vote taken at a special meeting of stockholders of the Company
called for that purpose or by written consent of a majority of the outstanding
shares of the Company's Common Stock solicited pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
regulations enacted pursuant thereto. The maximum number of shares which will
be issuable in respect of grants under the Plan shall be an aggregate of three
million (3,000,000) shares of common stock of the Company of the par value of
$0.01 per share (the "Common Stock").
Unless previously terminated, the Plan shall terminate on January 1, 2003 and
no options shall be granted under the Plan after that date. Shares subject to
option under the Plan may be either authorized and unissued shares or issued
shares which have been acquired by the Company and are held in its treasury.
The foregoing aggregate number of shares shall be subject to a corresponding
increase or decrease or change in the event of an adjustment in the number or
kind of shares subject to option pursuant to Section 11 hereof.
Options under the Plan may be granted in the form of incentive stock options
("incentive stock options") as provided in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), or in the form of non-qualified stock
options ("non-qualified options") or both. Unless otherwise indicated,
references in the Plan to "options" include incentive stock options and non-
qualified options.
2. PURPOSE. The purpose of the Plan is to advance the interests of the
Company and its subsidiaries by enabling salaried employees of the Company and
its subsidiaries to acquire stock ownership in the Company, and providing a
means for the Company to attract and retain well-qualified employees.
3. OPTION PRICE AND PROCEEDS FROM SALE OF SHARES. The price at which each
share of Common Stock covered by an option granted under the Plan may be
purchased shall be determined and fixed by either the Compensation Committee of
the Board of Directors of the Company or the Salaried Employees Committee, each
hereinafter provided for, and shall be set forth in such option. Such price
shall not be less than the fair market value of the Common Stock on the date
such option is granted by such Committee and not less than the par value of the
Common Stock.
The proceeds of sale of all shares issued or sold upon the exercise of
options under the Plan will be added to the general funds of the Company and
used from time to time for such corporate purposes as the Board of Directors
may determine.
4. ADMINISTRATION.
(a) Executive Group. The Board of Directors shall appoint a standing
committee of not fewer than three Directors, to be known as the Compensation
Committee (the "Compensation Committee") to administer and interpret the Plan
with respect to all corporate officers and certain other senior personnel of
the Company (collectively the "Executive Group"), such other senior personnel
to be determined from time to time by the Compensation Committee. The Board
may, from time to time and at any time, remove members from the Compensation
Committee or add members thereto, and vacancies in the Compensation
1
<PAGE>
Committee, however caused, shall be filled by action of the Board. No member of
the Compensation Committee shall be eligible to receive an option under the
Plan and each such member shall be a "disinterested person" as defined under
Rule 16b-3 under the Exchange Act. The Compensation Committee shall select one
of its members as Chairman and shall hold its meetings at such times and
places, and pursuant to such rules consistent with the Plan, as it may
determine. Two-thirds of the members of the Compensation Committee shall
constitute a quorum, and the acts of a majority of the members present at any
meeting at which a quorum is present, or acts approved in writing by a majority
of the members of the Compensation Committee, shall be the acts of the
Compensation Committee.
(b) Salaried Employees. The Board of Directors shall appoint a standing
committee of not fewer than four persons, to be known as the Salaried Employees
Committee (the "Salaried Employees Committee") to administer and interpret the
Plan with respect to all salaried employees of the Company and of all
subsidiaries of the Company, other than the Executive Group (collectively the
"Salaried Employees"). The Board may, from time to time and at any time, remove
members from the Salaried Employees Committee, or add members thereto, and
vacancies in the Salaried Employees Committee, however caused, shall be filled
by action of the Board. No member of the Salaried Employees Committee shall be
eligible to receive options under the Plan granted by the Salaried Employees
Committee but may, if eligible, receive options granted by the Compensation
Committee. The Salaried Employees Committee shall select one of its members as
Chairman and shall hold its meetings at such times and places as it may
determine. One-third of the members of the Salaried Employees Committee shall
constitute a quorum, and the acts of a majority of the members present at any
meeting at which a quorum is present, or acts approved in writing by a majority
of the members of the Salaried Employees Committee, shall be the acts of the
Salaried Employees Committee.
5. AUTHORITY OF THE COMMITTEES.
(a) The Compensation Committee. Subject to the terms of the Plan, the
Compensation Committee shall have authority to select the members of the
Executive Group to whom options are to be granted under the Plan; to determine
the term of each option, the number of shares to be subject to each such
option, and the option price of such shares; to designate options as incentive
stock options or non-qualified options; and to make all other determinations
deemed necessary or advisable for the administration of the Plan with respect
to members of the Executive Group. The Compensation Committee shall have the
power to authorize the issuance of the Common Stock in connection with the
exercise of options and the alternative settlement method described below. If
any option is terminated before January 1, 2003, the Compensation Committee may
reallot to any member or members of the Executive Group selected by it the
shares covered by such option to the extent it has not been exercised.
The Compensation Committee shall have the final authority to construe the
Plan with respect to members of the Executive Group and options granted to
members of the Executive Group under the Plan, and, subject to the terms of the
Plan, to formulate additional details and regulations for carrying out the Plan
with respect to members of the Executive Group.
(b) Salaried Employees Committee. From time to time, the Compensation
Committee shall authorize the Salaried Employees Committee to grant options
with respect to a specified number of shares of Common Stock (the "Authorized
Options"). The Compensation Committee shall also specify the number, if any, of
shares of Common Stock that may be issued pursuant to Authorized Options that
are incentive stock options.
2
<PAGE>
Subject to the terms of the Plan, the Salaried Employees Committee shall have
authority to select the Salaried Employees to whom Authorized Options are to be
granted under the Plan; to determine the term of each such option, the number
of shares to be subject to each such option, and the option price of such
shares; to designate Authorized Options, as and to the extent specified by the
Compensation Committee, as incentive stock options or non-qualified options;
and to make all other determinations deemed necessary or advisable for the
administration of the Plan with respect to Salaried Employees. The Salaried
Employees Committee shall have the power to authorize the issuance of the
Common Stock of the Company to Salaried Employees in connection with the
exercise of Authorized Options by such Salaried Employees and the alternative
settlement method described below. If any Authorized Option is terminated
before January 1, 2003, the Salaried Employees Committee may reallot to any
Salaried Employee or Salaried Employees selected by it the shares covered by
such option to the extent it has not been exercised.
The Compensation Committee shall have final authority to construe the Plan
with respect to Salaried Employees and Authorized Options granted to Salaried
Employees, and, subject to the terms of the Plan, to formulate additional
details and regulations for carrying out the Plan with respect to Salaried
Employees.
(c) Granting of Certain Options. Nothing contained in the Plan shall be
construed to preclude the granting by either the Compensation Committee or the
Salaried Employees Committee of an option or options to an optionee in addition
to an option or options already held by such optionee and then in existence or
the granting of more than one option to an optionee at the same time, or the
granting of an option in substitution for, or upon the cancellation or
surrender of, an option that had previously been granted to the optionee,
whether at a higher or lower exercise price.
6. ELIGIBILITY. All salaried employees of the Company or any of its
subsidiary companies shall be eligible to receive options under the Plan;
provided, however, that no Director of the Company or any of its subsidiaries
who is not otherwise actively employed by the Company or any of its
subsidiaries shall be eligible.
7. TERMS OF OPTIONS. The term of each option shall be not more than ten years
from the date of grant, as the issuing Committee shall determine, subject to
earlier termination as provided in Section 8 hereof.
8. OPTION AGREEMENT. Each option granted under the Plan shall be evidenced by
a Stock Option Agreement (the "Agreement") in a form approved by the
Compensation Committee or the Salaried Employees Committee, as appropriate, to
be executed between the Company and the person to whom such option is granted,
and shall by reference incorporate and be governed by the following terms and
conditions:
(a) Exercise of the Option. During its term the option may be exercised by
the optionee, or by a legal representative after incapacity of the optionee, or
by the Beneficiary after the death of the optionee, in whole at any time or in
part from time to time, by giving written notice of exercise to the Company,
specifying the number of shares to be purchased and accompanied by the payment
of the aggregate option price therefor.
An option shall not be exercisable in whole or in part within six months
after the date it is granted or more than 10 years after the date it is
granted; provided, however, that the limitation with respect to the first six
months shall not apply (i) in the event the death or disability of the optionee
occurs prior to the expiration of such six-month period, or (ii) in the event
of a Change in Control (as defined in Section 8(h) hereof); provided further,
that the issuing Committee, in its discretion, may specify a period or periods
longer than six months set forth in this paragraph during which an option shall
not be exercisable, and may accelerate the
3
<PAGE>
exercisability of any option (x) to any date in the case of the optionee's
death or disability or in the case of a Change in Control, or (y) to a date not
earlier than six months after the date of grant in all other cases.
No partial exercise of any option may be for fewer than 25 shares or the
number of shares still remaining subject to such option, whichever is smaller.
(b) Option Price. Each option shall contain the option price at which each
share covered by such option may be purchased, as determined and fixed by the
issuing Committee pursuant to Section 3 hereof.
The aggregate option price of all shares purchased pursuant to exercise of
the option shall be paid for, at the time of such purchase and prior to the
delivery of said shares, either (i) in cash or by check, bank draft or money
order payable to the order of the Company, or (ii) through the delivery of
previously acquired shares of Common Stock owned by the optionee, to the extent
that such payment does not require the delivery of a fractional share of such
previously acquired Common Stock, or (iii) a combination of (i) and (ii) above.
For purposes of the immediately preceding sentence, previously acquired shares
of Common Stock shall be valued at the average of the high and low sales prices
of the Common Stock on the New York Stock Exchange Composite Tape as of the
date of exercise. The Company will not lend money or in any manner help finance
the purchase of any shares under the option.
(c) Alternative Settlement Method. The Company may, in its sole discretion,
if so requested by an optionee, pay an optionee, in lieu of exercising his or
her option for all or a portion of the shares covered by such option, whichever
of the following is designated by the Committee which issued such option: (i)
cash equal to the excess of the value of one share over the purchase price per
share specified in such option multiplied by the number of shares called for by
the option, or the specified portion of such shares; or (ii) the nearest whole
number of shares of Common Stock having an aggregate value which is not greater
than the cash amount calculated in (i) above; or (iii) a combination of (i) and
(ii) above. The value of a share shall, for purposes of the immediately
preceding sentence, be the fair market value of a share of Common Stock. The
issuing Committee may specify at any time by written notice to an optionee that
the alternative settlement method with respect to his or her option will be
available only for cash or for stock or for a specified combination of each.
The alternative settlement method shall be available only to the extent that
an option is exercisable and only if the fair market value of a share of Common
Stock on the date a request for the alternative settlement method is granted
exceeds the purchase price per share specified in the option. An option, or any
portion thereof, with respect to which an optionee's request for the
alternative settlement method is granted, shall be surrendered to the Company.
An option shall cease to be exercisable to the extent that an optionee's
request for the alternative settlement method is granted, and the underlying
shares will not be regarded as available for new option grants in the future.
Notwithstanding the immediately preceding two paragraphs, in the event of a
Change in Control, any optionee who holds an option granted under this Plan
shall be entitled to elect, during the 60-day period immediately following such
Change in Control, in lieu of acquiring the shares of Common Stock covered by
such option, to receive, and the Company shall be obligated to pay, the Change
in Control Settlement Value (as defined in Section 8(h) hereof) with respect to
shares of Common Stock up to the number of shares covered by such option, which
amount shall be paid in cash; provided however, that, in the case of a current
or former officer or employee of the Company or any subsidiary who is subject
to Section 16(b) of the Exchange Act
4
<PAGE>
with respect to Common Stock, an election under this paragraph may not be made
prior to the expiration of six months after the date of the grant of the
related option.
Notwithstanding any other provision of the Plan, the provisions of this
Section 8(c) may not be amended in any respect following a Change in Control.
(d) Termination of Option. If an optionee ceases to be an employee of the
Company, the Option shall terminate at such time as it may no longer be
exercised, as set forth below:
(i) if termination of employment is voluntary or involuntary without
cause (as defined herein), the optionee may exercise each option held by
the optionee only within three months after such termination (but not after
the expiration date of the option) to the extent of the number of shares
for which the option was exercisable pursuant to its terms at the date of
termination. In addition, upon the request of an officer of the Company,
the issuing Committee may, in its sole and absolute discretion, extend the
post-termination exercise period of the option until a date that is not
more than three years from the date of the termination of the optionee's
employment (but not after the expiration date of the option);
(ii) if termination is for cause or breach by such optionee of any
employment agreement, each option will terminate as of the date such
optionee ceases to be an employee of the Company;
(iii) if termination is by reason of normal retirement (or early
retirement with the consent of the issuing Committee) under the retirement
plan of the Company or one of its subsidiaries, the optionee may exercise
each option held by the optionee only within three years of such
termination (but not after the expiration date of the option), during which
period vesting will continue;
(vi) if termination is by reason of disability, as determined by the
Committee, the optionee may exercise each option held by the optionee only
within three years of such termination (but not after the expiration date
of the option), during which period vesting will continue; and
(v) if termination is by reason of the death of the optionee while an
employee, each option held by the optionee may be exercised by the
optionee's Beneficiary only at any time within three years of the date of
the optionee's death (but not after the expiration date of the option) to
the extent of the total number of shares subject to option, irrespective of
the number which would have otherwise been exercisable pursuant to its
terms at the date of death or during such three-year period.
For purposes of this Section 8(d), "cause" shall mean (i) the willful and
continued failure by the optionee to substantially perform his or her duties
within the Company (or, if applicable, a subsidiary of the Company) (other than
any such failure resulting from the optionee's incapacity due to physical or
mental illness), or (ii) the willful engaging by the optionee in illegal
conduct or any act of serious dishonesty which adversely affects, or in the
reasonable estimation of the Board of Directors of the Company (or, if
applicable, a subsidiary of the Company), could in the future adversely affect,
the value, reliability or performance of the optionee to the Company (or, if
applicable, a subsidiary of the Company) in a material manner. For purposes of
clauses (i) and (ii) of this definition, no act, or failure to act, on the
optionee's part shall be considered "willful" unless done, or omitted to be
done, by the optionee in bad faith and without reasonable belief that his or
her action or omission was in, or not opposed to, the best interest of the
Company (or, if applicable, a subsidiary of the Company); provided that, during
the two-year period following a Change in Control, the conditions of clause (i)
of this definition shall not be deemed to be satisfied unless a written demand
for substantial performance has been delivered to the optionee by the Chairman
of the Board of Directors or the President of the Company (or, if applicable, a
subsidiary of the Company), which specifically identifies the manner in which
such optionee has not substantially performed his or her duties.
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<PAGE>
(e) Options Not Transferable. Options shall be nontransferable by the
optionee except by will or the laws of descent and distribution (or to a
Beneficiary in the event of an optionee's death) or, if then permitted under
Rule 16b-3 under the Exchange Act, pursuant to a qualified domestic relations
order as defined under the Code or Title 1 of the Employee Retirement Income
Security Act of 1974, as amended, or the rules thereunder, and during an
optionee's lifetime shall be exercisable only by the optionee or, in the event
of an optionee's legal incapacity, such optionee's court appointed
representative.
(f) Listing and Registration of Shares. Each option shall be subject to the
requirement that, if at any time the Board of Directors of the Company shall
determine, in its discretion, that the listing, registration or qualification
of the shares covered thereby upon any securities exchange or under any state
or federal law, or the consent or approval of any governmental regulatory body,
is necessary or desirable as a condition of, or in connection with, the
granting of such option or the purchase of shares thereunder, the Company's
obligation to deliver shares upon exercise shall be conditioned upon such
listing, registration, qualification, consent or approval, which shall have
been effected or obtained free of any conditions not acceptable to the Board of
Directors.
(g) Option Shall be Designated as Incentive Stock Option or Non-Qualified
Option. Each Agreement shall state whether the option granted thereby is an
incentive stock option or a non-qualified option.
(h) Impact of Change in Control. For purposes of this Plan, the following
definitions shall apply:
"Change in Control" shall mean the occurrence of any of the following events:
(i) any person other than AMAX Inc. ("Amax") is or becomes the Beneficial
Owner, directly or indirectly, of securities of the Company representing 20
percent or more of the combined voting power of the Company's then-
outstanding securities (a "20% Beneficial Owner"); provided, however, that
(a) the term "20% Beneficial Owner" shall not include any Beneficial Owner
who has crossed such 20 percent threshold while Amax owns more of the
combined voting power of the Company's then-outstanding securities than
such Beneficial Owner or such Beneficial Owner crossed such 20 percent
threshold solely as a result of an acquisition of securities directly from
the Company, or solely as a result of an acquisition by the Company of
Company securities, until, in each case, such time thereafter as such
person acquires additional voting securities other than directly from the
Company and, after giving effect to such acquisition, such person would
constitute a 20% Beneficial Owner and own more of the combined voting power
of the Company's then-outstanding securities than Amax owns; and (b) with
respect to any person eligible to file a Schedule 13G pursuant to Rule 13d-
1(b)(1)(ii) under the Exchange Act with respect to Company securities (an
"institutional investor"), there shall be excluded from the number of
securities deemed to be beneficially owned by such person a number of
securities representing not more than 10 percent of the combined voting
power of the Company's then-outstanding securities;
(ii) during any period of two consecutive years beginning January 1,
1993, individuals who at the beginning of such period constitute the Board
of Directors of the Company together with those individuals who first
become Directors during such period (other than by reason of an agreement
with the Company in settlement of a proxy contest for the election of
directors) and whose election or nomination for election to the Board was
approved by a vote of at least two-thirds ( 2/3) of the Directors then
still in office who either were Directors at the beginning of the period or
whose election or nomination for election was previously so approved (the
"Continuing Directors"), cease for any reason to constitute a majority of
the Board of Directors of the Company;
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(iii) the shareholders of the Company approve a merger, consolidation,
recapitalization or reorganization of the Company, or a reverse stock split
of any class of voting securities of the Company, or the consummation of
any such transaction if shareholder approval is not obtained, other than
any such transaction which would result in at least 75% of the total voting
power represented by the voting securities of the Company or the surviving
entity, outstanding immediately after such transaction, being beneficially
owned by persons who together owned at least 75% of the combined voting
power of the voting securities of the Company outstanding immediately prior
to such transaction, with the relative voting power of each such continuing
holder compared to the voting power of each other continuing holder not
substantially altered as a result of the transaction; provided that, for
purposes of this paragraph (iii), such continuity of ownership (and
preservation of relative voting power) shall be deemed to be satisfied if
the failure to meet such 75% threshold (or to preserve such relative voting
power) is due solely to the acquisition of voting securities by an employee
benefit plan of the Company or such surviving entity or any subsidiary of
the Company or such surviving entity;
(iv) the shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company or an agreement for the sale or
disposition of all or substantially all the assets of the Company; or
(v) any other event which the Compensation Committee determines shall
constitute a Change in Control for purposes of this Plan;
provided, however, that a Change in Control shall not be deemed to have
occurred if one of the following exceptions applies:
(1) Unless a majority of the Continuing Directors and the Compensation
Committee determine that the exception set forth in this paragraph (1)
shall not apply, none of the foregoing conditions would have been satisfied
but for one or more of the following persons acquiring or otherwise
becoming the Beneficial Owner of securities of the Company (A) any person
who has entered into a binding agreement with the Company, which agreement
has been approved by two-thirds ( 2/3) of the Continuing Directors,
limiting the acquisition of additional voting securities by such person,
the solicitation of proxies by such person or proposals by such person
concerning a business combination with the Company (a "Standstill
Agreement"); (B) any employee benefit plan, or trustee or other fiduciary
thereof, maintained by the Company, Amax or any subsidiary of the Company
or Amax; (C) any subsidiary of the Company or Amax; or (D) the Company; or
(2) Unless a majority of the Continuing Directors and the Compensation
Committee determine that the exception set forth in this paragraph (2)
shall not apply, none of the foregoing conditions would have been satisfied
but for the acquisition by the Company of another entity (whether by the
merger or consolidation, the acquisition of stock or assets, or otherwise)
in exchange, in whole or in part, for securities of the Company, provided
that, immediately following such acquisition, the Continuing Directors
constitute a majority of the Board of Directors of the Company, or a
majority of the board of directors of any other surviving entity, and, in
either case, no agreement, arrangement or understanding exists at that time
which would cause such Continuing Directors to cease thereafter to
constitute a majority of the Board of Directors or of such other board of
directors.
Notwithstanding the foregoing, unless otherwise determined by a majority of
the Continuing Directors, no Change in Control shall be deemed to have occurred
with respect to a particular optionee if the Change in Control results from
actions or events in which such optionee is a participant in a capacity other
than solely as an officer, employee or director of the Company.
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<PAGE>
For purposes of the foregoing definition of Change in Control, the term
"Beneficial Owner", with respect to any securities, shall mean any person who,
directly or indirectly, has or shares the right to vote or dispose of such
securities or otherwise has "beneficial ownership" of such securities (within
the meaning of Rule 13d-3 and Rule 13d-5 (as such Rules are in effect on June
30, 1992) under the Exchange Act, including pursuant to any agreement,
arrangement or understanding (whether or not in writing); provided, however,
that (i) a person shall not be deemed the Beneficial Owner of any security as a
result of any agreement, arrangement or understanding to vote such security (A)
arising solely from a revocable proxy or consent solicited pursuant to, and in
accordance with, the applicable provisions of the Exchange Act and the rules
and regulations thereunder or (B) made in connection with, or otherwise to
participate in, a proxy or consent solicitation made, or to be made pursuant
to, and in accordance with, the applicable provisions of the Exchange Act and
the rules and regulations thereunder, in either case described in clause (A) or
clause (B) above whether or not such agreement, arrangement or understanding is
also then reportable by such person on Schedule 13D under the Exchange Act (or
any comparable or successor report), and (ii) a person engaged in business as
an underwriter of securities shall not be deemed to be the Beneficial Owner of
any securities acquired through such person's participation in good faith in a
firm commitment underwriting until the expiration of forty days after the date
of such acquisition.
"Change in Control Stock Value" shall mean the value of a share of Common
Stock determined as follows:
(i) if the Change in Controls results from an event described in clause
(iii) of the Change in Control definition, the highest per share price paid
for shares of Common Stock of the Company in the transaction resulting in
the Change in Control;
(ii) if the Change in Control results from an event described in clauses
(i), (ii) or (v) of the Change in Control definition and no event described
in clauses (iii) or (iv) of the Change in Control definition has occurred
in connection with such Change in Control, the highest sale price of a
share of Common Stock of the Company on any trading day during the sixty
(60) consecutive trading days immediately preceding and following the date
of such Change in Control as reported on the New York Stock Exchange
Composite Tape and published in the Wall Street Journal; or
(iii) if the Change in Control results from an event described in clause
(iv) of the Change in Control definition, the price per share at which
shares of Common Stock are redeemed or exchanged by their holders in the
transaction described in such clause (iv).
"Change in Control Settlement Value" shall mean, with respect to a share of
Common Stock, the excess of the Change in Control Stock Value over the exercise
price of the option covering such share of Common Stock, provided that, with
respect to any option which is an incentive stock option immediately prior to
the election to receive the Change in Control Settlement Value, the Change in
Control Settlement Value shall not exceed the maximum amount permitted for such
option to continue to quality as an incentive stock option.
Notwithstanding any other provisions of this Plan to the contrary, in the
event of a Change in Control the following provisions shall apply:
(i) All outstanding options on the date of the Change in Control shall
become fully and immediately exercisable on the date of such Change in
Control, and such options shall not be subject to termination except as
provided in Section 8(c) and (d) hereof;
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<PAGE>
(ii) Notwithstanding the provisions of Section 8(f), the Board of
Directors shall not, at any time following a Change in Control, impose any
conditions upon the exercise of an option (including the election to
receive the Change in Control Settlement Value as provided in the last
paragraph of Section 8(c) hereof) that have not been previously imposed as
of the date of such Change in Control, unless, in the written opinion of
independent counsel to the Company, such condition is necessary to comply
with any federal, state or local securities or other law or regulation, or
the rules of any applicable securities exchange, and, in the good faith
opinion of the Board of Directors of the Company, compliance with such law,
regulation or rule without the imposition of such condition would be
impracticable; and
(iii) Notwithstanding the provisions of Section 10 hereof, the provisions
of this Section 8(h) may not be amended in any respect following a Change
in Control.
(i) Definition of Beneficiary. For purposes of the Plan, the term
"Beneficiary" with respect to members of the Executive Group shall mean the
person, persons, trust or trusts which have been designated by the optionee in
his or her most recent written beneficiary designation filed with the Company
to receive the benefits specified under this Plan, or, if there is not a
designated Beneficiary or surviving designated Beneficiary, then the person,
persons, trust or trusts entitled by will or the laws of descent and
distribution to receive such benefits; the term Beneficiary with respect to all
other optionees shall mean the person, persons, trust or trusts which have been
designated by the optionee in his or her most recent beneficiary designation to
receive the benefits specified under the Company's Group Life Insurance Plan.
(j) Other Provisions. Each Agreement may contain such other terms, provisions
and conditions not inconsistent herewith as shall be determined by the issuing
Committee.
9. SPECIAL PROVISIONS RELATING TO INCENTIVE STOCK OPTIONS.
(a) Notwithstanding any other provisions of the Plan to the contrary, the
aggregate fair market value (determined as of the time the incentive stock
option is granted) of the stock with respect to which incentive stock options
(within the meaning of Section 422 of the Code) granted to an employee by the
Company or any parent or subsidiary thereof are exercisable for the first time
shall not exceed $100,000 in any calendar year, provided, however, that any
option designated as an incentive stock option under this Plan that exceeds the
foregoing limit or that is otherwise disqualified as an incentive stock option
by operation of Section 422(d) or any other provision of the Code shall be
treated as a non-qualified stock option for purposes of this Plan.
(b) No incentive stock option shall be granted to any person, who, at the
time such option is granted, owns or is deemed to own stock possessing in the
aggregate more than 10% of the total combined voting power of all classes of
stock of the Company or a parent or subsidiary of the Company.
(c) In the event of amendments to the Code or applicable regulations relating
to incentive stock options subsequent to the date hereof, the Company may amend
the Plan, and the Company and optionees holding incentive stock options may
agree to amend outstanding Agreements, to conform to such amendments.
10. AMENDMENT AND TERMINATION. Except as provided in Section 8(h) hereof, the
Board of Directors may from time to time amend and, at any time, rescind or
terminate the Plan as it shall deem advisable; provided, however, that no
change that would impair the rights of the optionees may be made in options
theretofore granted, without the consent of the optionees; and provided,
further, that without the approval of stockholders of the Company no amendment
shall, except as required or permitted by Section 1, 8(h) or 9(c) hereof, (a)
materially increase the benefits accruing to participants under the Plan, (b)
except as otherwise
9
<PAGE>
provided in Section 11 hereof, materially increase the number of shares which
may be issued under the Plan or (c) materially modify the requirements as to
eligibility for participation in the Plan.
11. ADJUSTMENT OF NUMBER OF KIND OF SHARES. If the outstanding shares of the
Common Stock are increased, decreased, or changed into, or exchanged for a
different number or kind of shares or securities of the Company through
reorganization, merger, recapitalization, reclassification, stock split-up,
stock dividend, stock consolidation or otherwise, an appropriate and
proportionate adjustment shall be made in the number and kinds of shares then
remaining available for issuance under the Plan (including shares reserved for
outstanding options and shares available for future grant of options). A
corresponding adjustment changing the number of shares allocated to unexercised
options or portion thereof, which shall have been granted prior to any such
change, shall likewise be made. In the event the aggregate value of dividends
(other than stock dividends treated by the first sentence of this Section 11)
and distributions made with respect to the Common Stock during any three-month
period exceeds 7% of the product of (i) the average number of shares of Common
Stock outstanding during such three-month period, multiplied by (ii) the
average per share closing price of the Common Stock on the New York Stock
Exchange as reported on the Composite Tape and published in The Wall Street
Journal during such three-month period, then the number of shares allocated to
unexercised options or portions thereof, which shall have been granted prior to
the end of such three-month period, shall be increased by multiplying such
previously allocated shares by a fraction, the numerator of which is the amount
determined in accordance with clause (ii) of this sentence and the denominator
of which is the average per share closing price of the Common Stock on the New
York Stock Exchange as reported on the Composite Tape and published in The Wall
Street Journal during the five days following the end of such three-month
period in which the Common Stock is traded on the New York Stock Exchange
provided, however, that no adjustments shall be made under this sentence if
such fraction is equal to or less than one.
12. PRIVILEGES OF STOCK OWNERSHIP. The holder of an option shall not be
entitled to the privilege of stock ownership as to any shares of Common Stock
not actually issued and delivered to him. No shares shall be issued upon the
exercise of any option unless and until there shall have been compliance with
any then applicable requirements of the Securities and Exchange Commission or
any other regulatory agencies having jurisdiction over this Plan.
13. GOVERNMENT REGULATIONS. This Plan and the grant and exercise of options
hereunder shall be subject to all applicable rules and regulations of
governmental authorities.
14. WITHHOLDING. The Company or any subsidiary of the Company that employs
any holder of an option shall have the right to deduct any sums that federal,
state or local tax law requires to be withheld with respect to the exercise of
any option (but not in excess of the maximum marginal tax rate) or as otherwise
may be required by such laws. The Company or such subsidiary may require as a
condition to issuing or delivering shares upon exercise of the option that the
holder of an option or other person exercising the option pay any sums that
federal, state or local tax law requires to be withheld with respect to such
exercise. This authority shall permit the Company and any subsidiary to
withhold or receive shares or other property and to make cash payments in
respect thereof in satisfaction of the optionee's tax obligations, including
tax obligations in excess of mandatory withholding requirements, subject to and
only to the event authorized under rules and regulations of the issuing
Committee. Neither the Company nor any subsidiary of the Company shall be
obligated to advise any holder of an option of the existence of the tax or the
amount which the employer corporation will be so required to withhold.
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<PAGE>
15. GOVERNING LAW. This Plan and the options issued hereunder shall be
governed by, and construed in accordance with, the laws of the State of
Colorado applicable to contracts made and performed within such State, except
as such laws may be supplanted by the federal laws of the United States of
America, which laws shall then govern its effect and its construction to the
extent they supplant Colorado law.
16. COMPLIANCE WITH RULE 16B-3.
(a) Unless an optionee could otherwise transfer shares issued upon exercise
of an option, or exercise of a right to receive cash under the Plan, without
incurring liability under Section 16(b) of the Exchange Act, at least six
months must elapse from the date of acquisition of an option to the date of
disposition of the shares issued upon exercise of the option, and no right to
receive cash under the Plan may be exercised within six months after the date
of grant of such right.
(b) It is the intent of the Company that this Plan comply in all respects
with applicable provisions of Rule 16b-3 under the Exchange Act in connection
with any grant of options or other payment to a person who is subject to
Section 16 of the Exchange Act. Accordingly, if any provision of this Plan or
any agreement relating to an option does not comply with the requirements of
Rule 16b-3 as then applicable to any such person, such provision will be
construed or deemed amended to the extent necessary to conform to such
requirements with respect to such person.
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EXHIBIT 4.4
AMAX GOLD INC.
PERFORMANCE SHARE PLAN
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
I. Definitions......................................................... 2
II. The Plan
2.1 Purposes....................................................... 6
2.2 Administration................................................. 7
2.3 Participation.................................................. 7
2.4 Shares Reserved for Plan....................................... 7
III. Awards under the Plan
3.1 Awards......................................................... 8
3.2 Performance Objectives......................................... 8
3.3 Unit Disbursements in Settlement of Performance Units.......... 9
3.4 Restricted Stock, Restricted Stock Units, and PARS............. 9
3.5 Dividend Equivalents and Dividends............................. 10
IV. Other Provisions
4.1 Adjustments upon Corporate Changes............................. 11
4.2 Rights of Participants and Beneficiaries....................... 12
4.3 Colorado Law Governs........................................... 13
4.4 Withholding.................................................... 13
4.5 Amendment and Termination of Plan and Awards................... 13
4.6 Unfunded Status of Awards...................................... 14
4.7 Restrictions under Rule 16b-3.................................. 14
4.8 Effective Date................................................. 14
</TABLE>
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Amax Gold Inc. does hereby establish the Amax Gold Performance Share Plan for
the benefit of its eligible Participants (as herein defined) for the purposes
hereinafter set forth.
I. DEFINITIONS
1.1 Definitions.
(a) "Award" shall mean the allocation to a Participant of Performance Units,
the grant of Restricted Stock and Restricted Stock Units (including as PARS),
and the grant of Dividend Equivalents.
(b) "Beneficial Owner", with respect to any securities, shall mean any person
who, directly or indirectly, has or shares the right to vote or dispose of such
securities or otherwise has "beneficial ownership" of such securities within
the meaning of Rule 13d-3 and Rule 13d-5 (as such Rules are in effect on
February 1, 1993) under the Exchange Act, including pursuant to any agreement,
arrangement or understanding (whether or not in writing); provided, however,
that (i) a person shall not be deemed the Beneficial owners of any security as
a result of any agreement, arrangement or understanding to vote such security
(A) arising solely from a revocable proxy or consent solicited pursuant to, and
in accordance with, the applicable provisions of the Exchange Act and the rules
and regulations thereunder or (B) made in connection with, or otherwise to
participate in a proxy or consent solicitation made, or to be made, pursuant
to, and in accordance with, the applicable provisions of the Exchange Act and
the rules and regulations thereunder, in either case described in clause (A) or
clause (B) above whether or not such agreement, arrangement or understanding is
also then reportable by such person on Schedule 13D under the Exchange Act (or
any comparable or successor report), and (ii) a person engaged in business as
an underwriter of securities who acquires securities through its participation
in good faith in a firm commitment underwriting registered under the Securities
Act of 1933 shall not be deemed to be the Beneficial Owner of such securities
until the expiration of forty days after the date of such acquisition.
(c) "Beneficiary" shall mean (i) in the event of the disability or
incompetence of a Participant, the person or persons who shall have acquired on
behalf of such Participant by legal proceeding or otherwise the right to
receive the benefits specified under this Plan, or (ii) in the event of a
Participant's death, the person, persons, trust or trusts which have been
designated by such Participant in his or her most recent written beneficiary
designation filed with the Compensation Committee to receive the benefits
specified under this Plan, or, if there is no designated Beneficiary or
surviving designated Beneficiary, then the person, persons, trust or trusts
entitled by will or the laws of descent and distribution to receive such
benefits.
(d) "Board of Directors" shall mean the Board of Directors of the Company.
(e) "Change in Control" shall mean the occurrence of any of the following
events:
(i) any person other than AMAX Inc. ("Amax") is or becomes the Beneficial
Owner directly or indirectly, of securities of the Company representing 20
percent or more of the combined voting power of the Company's then-
outstanding securities (a "20% Beneficial Owner"); provided, however, that
(a) the term "20% Beneficial Owner" shall not include any Beneficial Owner
who has crossed such 20 percent threshold while Amax owns more of the
combined voting power of the Company's then-outstanding securities than
such Beneficial Owner or such Beneficial Owner crossed such 20% threshold
solely as a result of an acquisition of securities directly from the
Company, or solely as a result of an acquisition by the Company of Company
securities, until, in each case, such time thereafter as such person
acquires additional voting securities other than directly from the Company
and, after giving effect
2
<PAGE>
to such acquisition, such person would constitute a 20% Beneficial Owner
and owns more of the combined voting power of the Company's then-
outstanding securities than Amax owns; and (b) with respect to any person
eligible to file a Schedule 13G pursuant to Rule 13d-1(b)(1)(ii) under the
Exchange Act with respect to Company securities (an "Institutional
Investor"), there shall be excluded from the number of securities deemed to
be beneficially owned by such person a number of securities representing
not more than 10 percent of the combined voting power of the Company's
then-outstanding securities;
(ii) during any period of two consecutive years beginning after January
1, 1993, individuals who at the beginning of such period constitute the
Board of Directors of the Company together with those individuals who first
become Directors during such period (other than by reason of an agreement
with the Company in settlement of a proxy contest for the election of
directors) and whose election or nomination for election to the Board was
approved by a vote of at least two-thirds ( 2/3) of the Directors then
still in office who either were Directors at the beginning of the period or
whose election or nomination for election was previously so approved (the
"Continuing Directors"), cease for any reason to constitute a majority of
the Board of Directors;
(iii) the shareholders of the Company approve a merger, consolidation,
recapitalization or reorganization of the Company or a reverse stock split
of any class of voting securities of the Company, or the consummation of
any such transaction if shareholder approval is not obtained, other than
any such transaction which would result in at least 75% of the total voting
power represented by the voting securities of the Company or the surviving
entity outstanding immediately after such transaction being beneficially
owned by persons who together owned at least 75% of the combined voting
power of the voting securities of the Company outstanding immediately prior
to such transaction, with the relative voting power of each such continuing
holder compared to the voting power of each other continuing holder not
substantially altered as a result of the transaction; provided that, for
purposes of this paragraph (iii), such continuity of ownership (and
preservation of relative voting power) shall be deemed to be satisfied if
the failure to meet such 75% threshold (or to preserve such relative voting
power) is due solely to the acquisition of voting securities by an employee
benefit plan of the Company or such surviving entity or of any subsidiary
of the Company or such surviving entity;
(iv) the shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company or an agreement for the sale or
disposition of all or substantially all the assets of the Company; or
(v) any other event which the Compensation Committee determines shall
constitute a Change in Control for purposes of this Plan;
provided, however, that a Change in Control shall not be deemed to have
occurred if one of the following exceptions applies:
(1) Unless a majority of the Continuing Directors and the Compensation
Committee determine that the exception set forth in this paragraph (1)
shall not apply, none of the foregoing conditions would have been satisfied
but for one or more of the following persons acquiring or otherwise
becoming the Beneficial Owner of securities of the Company: (A) any person
who has entered into a binding agreement with the Company, which agreement
has been approved by two-thirds ( 2/3) of the Continuing Directors,
limiting the acquisition of additional voting securities by such person,
the solicitation of proxies by such person or proposals by such person
concerning a business combination with the Company (a "Standstill
Agreement"); (B) any employee benefit plan, or trustee or other fiduciary
thereof, maintained by the
3
<PAGE>
Company, Amax or any subsidiary of the Company or Amax; (C) any subsidiary
of the Company or Amax; (D) the Company; or
(2) Unless a majority of the Continuing Directors and the Compensation
Committee determine that the exception set forth in this paragraph (2)
shall not apply, none of the foregoing conditions would have been satisfied
but for the acquisition by the Company of another entity (whether by the
merger or consolidation, the acquisition of stock or assets, or otherwise)
in exchange, in whole or in part, for securities of the Company, provided
that, immediately following such acquisition, the Continuing Directors
constitute a majority of the Board of Directors of the Company, or a
majority of the board of directors of any other surviving entity, and, in
either case, no agreement, arrangement or understanding exists at that time
which would cause such Continuing Directors to cease thereafter to
constitute a majority of the Board of Directors or of such other board of
directors.
Notwithstanding the foregoing, unless a majority of the Continuing Directors
and the Compensation Committee determine otherwise, no Change in Control shall
be deemed to have occurred with respect to a particular Participant if the
Change in Control results from actions or events in which such Participant is a
participant in a capacity other than solely as an officer, employee or director
of the Company.
(f) "Change in Control Value" of a Performance Unit, Restricted Stock Unit, a
share of Restricted Stock, or a share of Common Stock shall mean the value of a
share of Common Stock, determined as follows:
(i) if the Change in Control in results from an event described in clause
(iii) of the Change in Control definition, the highest per share price paid
for shares of Common Stock of the Company in the transaction resulting in
the Change in Control;
(ii) if the Change in Control results from an event described in clauses
(i), (ii) or (v) of the Change in Control definition and no event described
in clauses (iii) or (iv) of the Change in Control definition has occurred
in connection with such Change in Control, the highest sale price of a
share of Common Stock on any trading day during the sixty (60) consecutive
trading days immediately preceding and following the date of such Change in
Control, as reported on the New York Stock Exchange Composite Tape and
published in the Wall Street Journal; or
(iii) if the Change in Control results from an event described in clause
(iv) of the Change in Control definition, the price per share for which
shares of Common Stock are exchanged or redeemed by their holders in
connection with a transaction described in such clause (iv).
(g) "Common Stock" shall mean the Common Stock of the Company, $0.01 par
value per share.
(h) "Company" shall mean Amax Gold Inc. and its successors.
(i) "Compensation Committee" shall mean the Compensation Committee of the
Board of Directors, the members of which are selected by and serve at the
pleasure of the Board of Directors; provided, however, that the Compensation
Committee shall at all times consist of two or more directors, each of whom is
a "disinterested person" within the meaning of Rule 16b-3.
(j) "Dividend Equivalent" shall mean a right, either freestanding or in
connection with another Award, granted to a participant by the Compensation
Committee, to receive, on the payment date for a dividend on the Common Stock,
an amount equal in value to the dividend that would have been paid on the
number of shares of Common Stock specified under such Dividend Equivalent Award
if and to the extent that such Award was outstanding on a record date for
payment of such dividend. The Compensation Committee may
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require (or permit a Participant to elect) that such amount be paid in the form
of current cash, deferred cash, other property in the case of a non-cash
dividend, or as an additional number of Performance Units, shares of Restricted
Stock, Restricted Stock Units of shares of Common Stock equal to the number of
shares of Common Stock which could have been purchased at their Fair Market
Value on the dividend payment date; the term of such requirement (or deferral
election) with respect to the form of payment need not be identical to the
terms of any Award to which the Dividend Equivalent may relate.
(k) "Employer" shall mean the Company with respect to its employees and each
Subsidiary with respect to its employees.
(l) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(m) "Fair Market Value" of a share of Common Stock shall mean the closing
price of the Common Stock on the New York Stock Exchange as reported on the
Composite Tape and published in The Wall Street Journal, or, if there is no
trading of the Common Stock on the date in question, then the closing price of
the Common Stock, as so reported and published, on the next preceding date on
which there was trading in the Common Stock.
(n) "PARS" or "Performance Accelerated Restricted Stock" shall mean an award
of Restricted Stock or Restricted Stock Units on which certain restrictions and
risks of forfeiture generally will expire on a specified date or on an
accelerated basis if specified Performance Objectives are met during a
Performance Period.
(o) "Participant" shall mean an officer or other key employee of the Company
or a Subsidiary who has been awarded Performance Units, Restricted Stock,
Restricted Stock Units or Dividend Equivalents.
(p) "Performance Objectives" shall mean, for a Participant, the goals
established pursuant to Section 3.2 to be achieved by the Company, any
specified Subsidiary and/or any specified business entity of the Company or a
Subsidiary during a Performance Period.
(q) "Performance Period" shall mean a period of three consecutive fiscal
years (or such other period as may be specified by the Compensation Committee).
(r) "Performance Unit" shall mean a contingent right, awarded to the
Participant by the Compensation Committee to receive one share of Common Stock
or, in the sole and absolute discretion of the Compensation Committee, the
Value of a Unit, at the end of a Performance Period or on some other date or
event specified by the Compensation Committee. The Compensation Committee may
specify that either the right to receive a Unit Disbursement of a Performance
Unit or the time at which such Unit Disbursement will be made shall be
contingent upon the achievement of specified Performance Objectives during a
Performance Period.
(s) "Plan" shall mean this Amax Gold Performance Share Plan.
(t) "Restricted Stock" shall mean an award of shares of Common Stock subject
to restrictions on transferability, a risk of forfeiture and certain other
terms and conditions under the Plan or specified by the Compensation Committee
(which may include limitations on the right to vote Restricted Stock or the
right to receive dividends thereon). The restrictions on and risk of forfeiture
of Restricted Stock generally will expire on a specified date, event or on an
accelerated basis under certain circumstances specified in the Plan
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or an agreement relating to the Restricted Stock. The Compensation Committee
may, in its sole and absolute discretion award shares of Common Stock subject
to no restrictions on transferability or risk of forfeiture.
(u) "Restricted Stock Unit" shall mean a right, awarded to the Participant by
the Compensation Committee, to receive one share of Common Stock or, in the
sole and absolute discretion of the Compensation Committee, the Value of a
Unit, at a specified date, event or on an accelerated basis under certain
circumstances specified in the Plan or an agreement evidencing the Restricted
Stock Unit. Settlement of a Restricted Stock Unit may be contingent on
continued employment, achievement of specified Performance Objectives, or any
other event or events specified by the Compensation Committee.
(v) "Retirement" shall mean the retirement of a Participant from the
employment of an Employer at such Participant's normal retirement date pursuant
to the Retirement Plan for Salaried Employees of AMAX Inc. and its Subsidiaries
or any other retirement plan of any such Employer, or an early retirement with
the approval of the Compensation Committee.
(w) "Rule 16b-3" shall mean Rule 16b-3 under the Exchange Act, as in effect
from time to time, or any other rule promulgated under the Exchange Act which
supercedes Rule 16b-3 or concerns the subject matter of Rule 16b-3 as in effect
on January 1, 1993.
(x) "Subsidiary" shall mean any corporation, 50% or more of whose voting
power is owned directly or indirectly by the Company.
(y) "Termination of Employment" shall mean any termination of services other
than by reason of transfer to another Employer or to Amax or one of its
subsidiaries or to the employment of an entity (herein called a "Non-
Participating Subsidiary") which is not an Employer but which is deemed to be a
Subsidiary by the Compensation Committee. The employment of a Participant who
is on an approved leave of absence in excess of two years shall be considered
as terminated as of the commencement of such leave for all purposes of the
Plan.
(z) "Unit Disbursement" shall mean issuance with respect to Performance Units
of Common Stock and/or, in the sole and absolute discretion of the Compensation
Committee, payment in cash, other Awards or other property of the Value of a
Unit, as provided in Section 3.3 or 3.5.
(aa) "Value of a Unit" with respect to a Performance Unit and Restricted
Stock Unit (i) on the date of any Award shall mean an amount of cash equal to
the Fair Market Value of a share of Common Stock on that date, or (ii) for all
other purposes, shall mean an amount of cash equal to the greater of (x) the
Fair Market Value of a share of the Common Stock on the relevant date or (y)
the average of the Fair Market Value of a share of Common Stock for that date
and for each of the four preceding days on which the Common Stock is traded on
the New York Stock Exchange.
II. THE PLAN
2.1 Purposes.
The purposes of the Plan are to enable the Company and its subsidiaries to
attract and retain highly qualified officers and other key employees, to
provide added incentive for high levels of achievement to improve the long-term
performance of the Company and its Subsidiaries, and to strengthen the
mutuality of interests between Participants and the Company's stockholders by
providing equity-based incentive awards.
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The Plan is intended to achieve these purposes through the award of Performance
Units, Restricted Stock and Restricted Stock Units (including awards of PARS),
and Dividend Equivalents.
2.2 Administration.
The Plan shall be administered by the Compensation Committee. Any action of
the Compensation Committee with respect to the administration of the Plan shall
be taken pursuant to a majority vote or the written consent of a majority of
its members.
Subject to the express provisions of the Plan, the Compensation Committee
shall have the authority to construe and interpret the Plan, to define the
terms used herein, to prescribe, amend and rescind rules and regulations
relating to the administration of the Plan and to make all other determinations
necessary or advisable for the administration of the Plan. The determinations
of the Compensation Committee on the foregoing matters shall be conclusive. The
duties of the Compensation Committee shall include, but shall not be limited
to, approving the participation in the Plan of Participants, selecting
Performance Periods, selecting the types, sizes, terms and provisions of Awards
(which need not be identical), selecting Performance Objectives for the Company
and its Subsidiaries and determining the extent to which Performance Objectives
have been met, making disbursements and settlements of Awards, determining
whether to grant disbursements and settlements of Awards in shares of Common
Stock, the cash equivalent value of such shares or other Awards or property, or
a combination thereof, creating trusts, determining whether to defer or
accelerate any Unit Disbursement or whether to defer or accelerate the lapsing
of restrictions or risks of forfeiture on Restricted Stock or Restricted Stock
Units, construing the provisions of the Plan, modifying the terms of any Award,
and authorizing the exchange or substitution of Awards. Subject only to
compliance with the express provisions of the Plan, the Compensation Committee
may act in its sole and absolute discretion in performing the duties
specifically set forth in the preceding sentence and other duties under the
Plan. No member of the Compensation Committee shall be liable for any action,
failure to act, determination or interpretation made in good faith with respect
to the Plan or any transaction hereunder.
2.3 Participation.
Officers and other key employees of the Company or a Subsidiary, including
those who also serve as a director of the Company, shall be eligible for
selection to participate in the Plan upon approval by the Compensation
Committee. Participants shall be selected because they are in a position to
have a significant impact on achieving the long term profit and growth
objectives of the Company and/or its Subsidiaries. No member of the
Compensation Committee shall be a Participant, shall be eligible to receive an
Award under the Plan, or shall have received an Award under the Plan at any
time within one year prior to appointment to the Compensation Committee.
Directors who are not officers or employees of the Company or a Subsidiary are
not eligible to participate in the Plan. An individual who has received Awards
may, if otherwise eligible, be granted additional Awards if the Compensation
Committee shall so determine. Awards granted under the Plan may be terminated
or forfeited upon the occurrence of such events or in such circumstances,
including at or following a Participant's Termination of Employment, as the
Compensation Committee shall specify.
2.4 Shares Reserved for Plan.
Subject to adjustment as hereinafter provided, the total number of shares of
Common Stock reserved and available for issuance in connection with Awards
other than Dividend Equivalents under the Plan shall be 850,000; provided,
however, that this number of shares available under the Plan shall be reduced
by the
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number of shares issued in settlement of Awards (other than Dividend
Equivalents and Awards resulting from the grant of Dividend Equivalents) under
this Plan. Shares issued in connection with Dividend Equivalents, whether
freestanding or in connection with Performance Units, Restricted Stock Units or
Restricted Stock, shall be in addition to the 850,000 shares reserved under the
Plan. In no event shall Awards (other than Dividend Equivalents and Awards
resulting from the grant of Dividend Equivalents) be outstanding at any one
time that have resulted or could result in the issuance of a number of shares
of Common Stock in excess of the number then remaining reserved and available
for issuance under the Plan. In addition, in no event shall Dividend
Equivalents be outstanding at any one time that relate to more than the number
of shares then subject to outstanding Awards plus the number of shares
otherwise available for future Awards. If any shares of Common Stock subject to
an Award (other than Dividend Equivalents and Awards resulting from the grant
of Dividend Equivalents) are forfeited or such Award is settled in cash or
otherwise terminates without a distribution of shares to the Participant, any
shares counted against the number of shares reserved and available under the
Plan with respect to such Award shall, to the extent of any such forfeiture,
settlement, or termination, again be available for Awards under the Plan,
provided that the counting of shares of Common Stock against the number
reserved and available for issuance under the Plan shall in all respects comply
with applicable requirements of Rule 16b-3.
Any shares of Common Stock distributed pursuant to an Award may consist, in
whole or in part, of authorized and unissued shares or treasury shares,
provided that shares issued as Restricted Stock shall be treasury shares if the
issuance of authorized and unissued shares in such case would not comply with
applicable provisions of the Delaware General Corporation Law.
III. AWARDS UNDER THE PLAN
3.1 Awards.
(a) Performance Units, Restricted Stock, Restricted Stock Units, including
Restricted Stock and Restricted Stock Units granted as PARS, and Dividend
Equivalents may be awarded in accordance with the provisions of the Plan and on
such other terms and conditions as are not inconsistent with the purposes and
provisions of the Plan. Awards granted under the Plan may be granted either
alone or in addition to, in tandem with, or in substitution for, any other
Award granted under the Plan or any award granted under any other plan of the
Company or any other right of a Participant to receive payment from the Company
or any Subsidiary. Except to the extent an Award is granted in substitution as
described in the preceding sentence, and except to the extent consideration is
required to be paid under the Delaware General Corporation Law, only services
may be required as consideration for the grant of any Award.
(b) After the Compensation Committee has approved the grant of an Award to a
Participant and established the applicable terms and conditions of the Award
applicable to such Participant, such Participant shall be given written
confirmation of such Award.
3.2 Performance Objectives.
With respect to any grant of Performance Units or PARS, the Compensation
Committee in its sole and absolute discretion shall designate the applicable
Performance Period and, prior to or as promptly as practicable after the
commencement of such Performance Period, shall establish Performance Objectives
for the Company and/or its Subsidiaries for such Performance Period as the
Compensation Committee may from time to time determine, taking into
consideration the benefits to the Company's stockholders of achievement
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of such Performance Objectives relative to the aggregate costs of Awards
potentially available as a result thereof. The Compensation Committee may
specify a range of Performance Objectives, with the making of, or timing of,
Unit Disbursements or the timing of the lapse of restrictions and risks of
forfeiture on PARS to be dependent upon the achievement of Performance
Objectives within such range (subject to Sections 3.3 and 3.4 hereof).
Performance Objectives may vary from Performance Period to Performance Period
and from Participant to Participant. Performance Periods specified under the
Plan may overlap. The Compensation Committee may grant Restricted Stock,
Restricted Stock Units or Dividend Equivalents that do not relate to any
particular Performance Period and are not contingent on the achievement of
Performance Objectives.
3.3 Unit Disbursements in Settlement of Performance Units.
(a) Unless otherwise specified by the Compensation Committee, the basis for
making Unit Disbursements in settlement of Performance Units awarded to a
Participant for a given Performance Period, and/or the timing thereof, will be
the achievement of specified Performance Objectives for that Performance
Period. Unless otherwise determined by the Compensation Committee, the Unit
Disbursements to be made upon completion of a particular Performance Period
will be a number of shares of Common Stock equal to the product of (i) the
number of Performance Units which a Participant has been awarded for such
Performance Period multiplied by (ii) a percentage determined based upon the
extent to which Performance Objectives for such Performance Period were
achieved. The Compensation Committee may provide that Performance Units, with
respect to which Unit Disbursements are not to be made upon completion of a
Performance Period, be forfeited or be deferred and paid at a specified future
date or event, subject to such terms and conditions as the Compensation
Committee may specify. The foregoing notwithstanding the Compensation Committee
may, in its sole and absolute discretion after completion of a Performance
Period, in view of the Compensation Committee's assessment of the Company's
strategy, performance of comparable companies, and other circumstances,
increase or decrease the number of Performance Units with respect to which Unit
Disbursements will be made (at that time or upon completion of any specified
additional deferral period) with respect to such Performance Period. If the
Compensation Committee, in its sole and absolute discretion, determines to make
some or all of such Unit Disbursements in cash or property other than shares of
Common Stock, such Unit Disbursements shall be paid in an amount equal to the
portion of the Participant's Performance Units to be paid determined in
accordance with the agreement evidencing the Award multiplied by the Value of a
Unit on the last day of such Performance Period, or as otherwise provided by
the terms of the Award.
(b) Unit Disbursements will be made on the disbursement date designated by
the Compensation Committee or as soon thereafter as administratively
practicable; provided, however, that the Compensation Committee may, in it sole
and absolute discretion, defer a Unit Disbursement date, or may offer and a
Participant may elect, prior to completion of the applicable Performance
Period, settlement of Unit Disbursements at such other time or times as the
Compensation Committee may choose to make available, and any election to defer
by a Participant subject to Section 16 of the Exchange Act shall be made in
accordance with applicable requirements of Rule 16b-3.
3.4 Restricted Stock, Restricted Stock Units and PARS.
(a) The Compensation Committee is authorized to grant Restricted Stock to
Participants, subject to such restrictions on transferability and other
restrictions as the Compensation Committee may impose, which restrictions may
lapse separately or in combination at such times, under such circumstances, in
such installments, or otherwise, as the Compensation Committee shall determine.
Restricted Stock granted under
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the Plan shall be evidenced by certificates registered in the name of the
Participant and bearing an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Restricted Stock. The Company
shall retain physical possession of any such certificate, and each Participant
awarded Restricted Stock shall have delivered a stock power to the Company,
endorsed in blank, relating to the Restricted Stock for so long as the
Restricted Stock is subject to a risk of forfeiture.
(b) The Compensation Committee is authorized to grant Restricted Stock Units
to Participants, under which the Participant will be entitled to delivery of a
specified number of shares of Common Stock upon expiration of the deferral
period specified by the Compensation Committee (or, if permitted by the
Compensation Committee, as elected by the Participant). In addition, Restricted
Stock Units shall be subject to such restrictions as the Compensation Committee
may impose, which restrictions (if any) may lapse at the expiration of the
deferral period or at earlier specified times or events, separately or in
combination, in installments, or otherwise, as the Compensation Committee shall
determine at or after date of grant.
(c) Except as otherwise determined by the Compensation Committee, upon
Termination of Employment (as determined under criteria established by the
Compensation Committee) during the period in which Restricted Stock or
Restricted Stock Units shall be subject to a risk of forfeiture (as provided in
the agreement relating to Restricted Stock or evidencing the Restricted Stock
Units), Restricted Stock or Restricted Stock Units that are at that time
subject to such risk of forfeiture (which shall not include Restricted Stock
Units deferred at the election of the Participant) shall be forfeited;
provided, however, that the Compensation Committee may provide, by rule or
regulation or in any agreement relating to Restricted Stock or evidencing
Restricted Stock Units, or may determine in any individual case, that
restrictions or forfeiture conditions relating to Restricted Stock or
Restricted Stock Units will be waived in whole or in part in the event of
Termination of Employment resulting from specified causes.
(d) The Compensation Committee may award Restricted Stock or Restricted Stock
Units in the form of PARS. To the extent specified by the Compensation
Committee at the time of award of PARS, restrictions on transferability, risks
of forfeiture, and other restrictions on a specified number of shares of
Restricted Stock or Restricted Stock Units awarded as PARS shall lapse upon
completion of a Performance Period and achievement of specific Performance
Objectives for that Performance Period. Unless otherwise specified by the
Compensation Committee, PARS that are not subject to such accelerated lapse of
restrictions as a result of achievement of Performance Objectives shall remain
outstanding, with restrictions on transferability, risks of forfeiture, and
other restrictions thereon to lapse in accordance with the original terms of
such PARS. The foregoing notwithstanding, the Compensation Committee may, in
its sole and absolute discretion during or after completion of a Performance
Period, in view of the Compensation Committee's assessment of the Company's
strategy, performance of comparable companies, and other circumstances, further
defer or accelerate the lapse of restrictions on PARS or make an additional
grant of Common Stock not subject to restrictions. The Compensation Committee
may otherwise accelerate the lapse of restrictions on PARS in its sole and
absolute discretion. The Compensation Committee may also grant supplemental
cash awards in connection with PARS to offset dividends paid from the beginning
of the Performance Period to the date of grant of PARS relating to such
Performance Period.
3.5 Dividend Equivalents and Dividends.
(a) The Compensation Committee may, in its sole and absolute discretion,
grant Dividend Equivalents to a Participant, either freestanding or in
connection with another Award. A Participant who receives payment of Dividend
Equivalents in the form of Performance Units, Restricted Stock Units,
Restricted Stock,
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shares of Common Stock or deferred cash (rather than as a payment at the same
time and in the same form as the dividends paid on Common Stock) in accordance
with this section shall be entitled to such payment subject to such terms and
conditions as may be specified by the Compensation Committee.
(b) Participants granted Restricted Stock shall be entitled to receive
dividends thereon except if, as a condition of the Award, the Compensation
Committee requires (or permits a Participant to elect) that (i) all cash
dividends on such Restricted Stock be reinvested in additional shares of Common
Stock or Restricted Stock (or deemed reinvested in Restricted Stock Units), and
(ii) shares distributed in connection with a stock split or stock dividend and
other property distributed as a dividend be retained (or an equivalent cash
value treated as reinvested in Restricted Stock Units) and deemed subject to
such terms and conditions as may be specified by the Compensation Committee.
IV. OTHER PROVISIONS
4.1 Adjustments Upon Corporate Changes.
(a) Without limiting the provisions of subsection (b) of this Section 4.1, if
the outstanding shares of Common Stock are increased, decreased, or changed
into, or exchanged for a different number or kind of shares or securities of
the Company upon a reorganization, merger, recapitalization, reclassification,
stock split-up, stock dividend, stock consolidation or otherwise, an
appropriate and proportionate adjustment shall be made in the number of shares
reserved and available for issuance under the Plan, the Performance Units,
Restricted Stock Units and Dividend Equivalents theretofore awarded, and the
Restricted Stock theretofore awarded (if holders of Restricted Stock would not
otherwise be treated substantially the same as other stockholders). In the
event the aggregate value of dividends (other than stock dividends treated by
the preceding sentence) and distributions made with respect to the Common Stock
during any three-month period exceeds 7% of the product of (i) the average
number of shares of Common Stock outstanding during such three-month period,
multiplied by (ii) the average per share closing price of the Common Stock on
the New York Stock Exchange as reported on the Composite Tape and published in
The Wall Street Journal during such three-month period, then the number of
Performance Units or Restricted Stock Units awarded prior to the end of such
three-month period (which did not otherwise receive Dividend Equivalents having
a value substantially equal to all of such dividends and distributions) shall
be proportionately increased by multiplying such Performance Units or
Restricted Stock Units by a fraction, the numerator of which is the amount
determined in accordance with clause (ii) of this sentence and the denominator
or which is the average per share closing price of the Common Stock on the New
York Stock Exchange as reported on the Composite Tape and published in The Wall
Street Journal during the five days following the end of such three-month
period in which the Common Stock is traded on the New York Stock Exchange.
(b) Notwithstanding any other provision of the Plan to the contrary, upon the
occurrence of a Change in Control, unless the right to the lapse of
restrictions and/or risks of forfeiture on outstanding Awards, accelerated
delivery of Awards, or the receipt of cash with respect to Awards hereunder is
waived or deferred by a Participant by written notice to the Company delivered
prior to a Change in Control, all restrictions and risks of forfeiture on
Awards (other than those imposed by law or regulation) shall lapse, all
deferral periods relating to Awards (including those electively deferred) shall
immediately expire, and the Company shall pay to a Participant, in cash, the
sum of the following amounts:
(i) an amount (if any) equal to the product of (x) the Change in Control
Value of a Performance Unit or Restricted Stock Unit, multiplied by (y) the
number of shares of Common Stock represented by
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the total number of Unit Disbursements and Restricted Stock units awarded
to the Participant for completed Performance Periods or completed
restriction periods which have been deferred or otherwise have not been
disbursed, and
(ii) an amount (if any) equal to the product of (x) the Change in Control
Value of a Performance Unit or Restricted Stock Unit, multiplied by (y) the
number of shares of Common Stock represented by the total number of
Performance Units (other than those as to which a Unit Disbursement has
been made) and Restricted Stock Units (including such Performance Units and
Restricted Stock Units awarded pursuant to Dividend Equivalent Awards)
awarded to the Participant for any Performance Period or restriction period
(whether completed or in progress at the time of Change in Control), if he
or she is employed by the Company or a Subsidiary on the date immediately
preceding the date of the Change in Control; and
(iii) an amount (if any) equal to the product of (x) the Change in
Control Value of a share of Restricted Stock, multiplied by (y) the number
of shares of Common Stock represented by the total number of shares awarded
as Restricted Stock (including such Restricted Stock awarded pursuant to
reinvestment of dividends) awarded to the Participant (who is a Participant
on the date immediately preceding the date of Change in Control) for any
Performance Period or restriction period (whether completed or in progress
at the time of Change in Control).
Any such payment pursuant to this paragraph (b) shall be paid in a lump-sum
amount within fifteen (15) days after the date of the Change in Control).
(c) The Compensation Committee is authorized to make, in its sole and
absolute discretion, adjustments in the terms and conditions of, and the
criteria included in, Awards, Performance Objectives, Performance Periods,
restriction periods, deferral periods, and terms and conditions relating
thereto, in recognition of unusual or nonrecurring events (including, without
limitation, events described in Section 4.1(a) above) affecting the Company or
any Subsidiary or the financial statements of the Company or any Subsidiary, or
in response to changes in applicable laws, regulations, or accounting
principles.
4.2 Rights of Participants and Beneficiaries.
(a) Nothing contained in the Plan (or in any documents evidencing an Award)
shall confer upon any Participant any right to continue in the employ of his or
her Employer or constitute any contract or agreement of employment or interfere
in any way with the right of such Employer to reduce such Participant's
compensation from the rate in existence at the time of an Award or to terminate
such Participant's employment with or without cause, but nothing contained
herein or in any document evidencing an Award shall affect any other
contractual rights of a Participant. No Participant or other person shall have
any claim to be granted any Award under the Plan, and there is no obligation
for uniformity of treatment of Participants.
(b) All settlements of Awards shall be made hereunder only to the Participant
or his or her Beneficiary entitled thereto pursuant to the Plan. Neither the
Company nor any Subsidiary shall be liable for the debts, contracts, or
engagements of any Participant or his or her Beneficiary, and rights relating
to Awards under this Plan may not be taken in execution by attachment or
garnishment, or by any other legal or equitable proceeding while in the hands
of an Employer; nor shall any Participant or his or her Beneficiary have any
right to assign, pledge or hypothecate any benefits or rights hereunder.
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(c) No Award shall confer on any Participant any of the rights of a
stockholder of the Company (including any right to receive dividends) unless
and until shares of Common Stock are registered in the name of such person in
connection with such Award.
(d) No fractional shares shall be issued or delivered pursuant to the Plan or
any Award. The Compensation Committee shall determine whether cash, other
Awards, or other property shall be issued or paid in lieu of fractional shares
or whether such fractional shares or any rights thereto shall be forfeited or
otherwise eliminated.
(e) If a Participant forfeits Restricted Stock with respect to which he or
she was required to pay cash consideration in order to satisfy requirements
under the Delaware General Corporation Law, the amount of such cash
consideration will be repaid to the Participant, upon such forfeiture, without
interest.
4.3 Colorado Law Governs.
This Plan and documents evidencing Awards or rights relating to Awards shall
be construed, administered and governed in all respects under and by the laws
of the State of Colorado, excluding the conflicts of law rules applicable in
the State of Colorado. If any provision of this Plan shall be held by a court
of competent jurisdiction to be invalid or unenforceable, the remaining
provisions hereof shall continue to be fully effective.
4.4 Withholding.
The Employer of any Participant shall have the right to deduct any sums that
federal, state, local or foreign tax law requires to be withheld with respect
to Awards, Unit Disbursements, or settlement of Awards from any payment
relating thereto or other Employer payment to the Participant. If authorized by
and subject to rules and regulations of the Compensation Committee, this
authority shall permit the Employer to withhold or receive shares or other
property and to make cash payments in respect thereof in satisfaction of the
Participant's tax obligations, including tax obligations in excess of mandatory
withholding requirements. There is no obligation hereunder that any Participant
be advised of the existence of the tax or the amount which his or her Employer
will be so required to withhold.
4.5 Amendment and Termination of Plan and Awards.
Notwithstanding anything herein to the contrary, the Board of Directors may,
at any time and from time to time, terminate or suspend the Plan or amend or
modify any of its provisions and the terms and provisions of any Awards
theretofore made to Participants which have not been settled; provided,
however, that any such termination, suspension, amendment, or modification of
the Plan shall be subject to the approval of the Company's stockholders within
one year after such Board action if such stockholder approval is required by
any federal or state law or regulation or the rules of any stock exchange or
automated quotation system on which the Common Stock may be listed or quoted,
and provided, further that, without the consent of an affected Participant, no
termination, suspension, amendment, or modification of the Plan or any
outstanding Award may impair the rights of such Participant under any Award
theretofore granted. No Awards may be granted during any suspension of the Plan
or after any termination of the Plan.
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4.6 Unfunded Status of Awards.
The Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payments not yet made to a
Participant pursuant to an Award, nothing contained in the Plan or any Award
shall give any such Participant any rights that are greater than those of a
general creditor of the Company; provided, however, that the Compensation
Committee may authorize the creation of trusts or make other arrangements to
meet the Company's obligations under the Plan to deliver cash, shares of Common
Stock, other Awards, or other property pursuant to any Award or to provide
other benefits, which trusts or other arrangements shall be consistent with the
"unfunded" status of the Plan unless the Compensation Committee otherwise
determines with the consent of each affected Participant. The trustee of any
trust established under the Plan may be authorized to dispose of trust assets
and reinvest proceeds in alternative investments, subject to such terms and
conditions as the Compensation Committee may specify and in accordance with
applicable law.
4.7 Restrictions Under Rule 16b-3.
(a) Unless a Participant could otherwise transfer an equity security,
derivative security, or shares issued upon exercise of a derivative security
granted under the Plan without incurring liability under Section 16(b) of the
Exchange Act, (i) an equity security issued under the Plan shall be held for at
least six months from the date of acquisition, and (ii), with respect to a
derivative security issued under the Plan, at least six months shall elapse
from the date of acquisition of the derivative security to the date of
disposition of the derivative security (other than upon exercise or conversion)
or its underlying equity security.
(b) Awards which constitute derivative securities shall not be transferable
by a Participant except by will or the laws of descent and distribution (or to
a Beneficiary in the event of a Participant's death) or, if then permitted
under Rule 16b-3, pursuant to a qualified domestic relations order as defined
under the Internal Revenue Code of 1986 or Title I of the Employee Retirement
Income Security Act of 1974, as amended, or the rules thereunder, and, if then
required by Rule 16b-3, shall be exercisable during the lifetime of a
Participant only by such Participant or his or her guardian or legal
representative.
(c) It is the intent of the Company that this Plan comply in all respects
with Rule 16b-3 under the Exchange Act in connection with any Award granted to
a person who is subject to Section 16 of the Exchange Act. Accordingly, if any
provision of this Plan or any agreement relating to an Award does not comply
with the requirements of Rule 16b-3 as then applicable to any such person, such
provision shall be construed or deemed amended to the extent necessary to
conform to such requirements in order to prevent such person from incurring
liability under Section 16(b) of the Exchange Act.
4.8 Effective Date.
This Plan is effective as of January 1, 1993, for Performance Periods
beginning on or after January 1, 1993, and will remain in effect until such
time as action may be taken to terminate or suspend the Plan pursuant to
Section 4.5, or until such time as action may be taken to terminate or suspend
the Plan pursuant to Section 4.5, or until such time as no shares of Common
Stock remain reserved and available for issuance and the Company has no further
obligation with respect to any Award granted under the Plan; provided, however,
that, on or before December 31, 1993, the Plan shall have been approved by the
affirmative vote of the holders of a majority of all outstanding shares of
Common Stock entitled to vote thereon at a meeting of Company stockholders, or
any adjournment thereof, or by written consent of a majority of the outstanding
shares of Common Stock solicited in accordance with Section 14 of the Exchange
Act and, in each case, in
14
<PAGE>
accordance with applicable provisions of the Delaware General Corporation Law.
Any Awards granted under the Plan, as amended and restated, prior to such
approval of stockholders shall be effective when granted (unless the
Compensation Committee specified otherwise at the time of grant), but no such
Award may be settled and no restrictions relating to any Award may lapse prior
to such stockholder approval, and if stockholders fail to approve the Plan as
specified hereunder, any such Award shall be cancelled.
15
<PAGE>
EXHIBIT 4.5
Date:
----------------------
Paul J. Hemschoot, Jr., Esq.
Administrator, Deferred
Compensation Plan for Members
of the Board of Directors of
Amax Gold Inc.
Amax Gold Inc.
9100 E Mineral Circle
Englewood CO 80112
Re: Deferred Compensation Plan
--------------------------
Dear Sir:
Pursuant to Section 2.02 of the Deferred Compensation Plan for Members of the
Board of Directors of Amax Gold Inc. (the "Plan"), I request the following
changes in my participation as it currently exists:
I hereby elect to defer percent of my Compensation (as defined
- ------ -----
in the Plan) beginning January 1, 1991.
I hereby elect to revoke my participation in the Plan effective
- ------
January 1, 1991.
Pursuant to Section 2.03, I request the following changes in my Beneficiary
Designation. Effective January 1, 1991, I hereby designate the following
individual(s) to receive any amounts distributable under the Plan in the event
of my death:
of my to receive %
- ---------------- ---------------- ---------------- ----
(Name) (City & State) (Relationship)
of my to receive %
- ---------------- ---------------- ---------------- ----
(Name) (City & State) (Relationship)
of my to receive %
- ---------------- ---------------- ---------------- ----
(Name) (City & State) (Relationship)
I understand that any designation of a Beneficiary other than my spouse must
be agreed to and acknowledged by my spouse.
I understand that all Compensation deferred under the Plan will be credited to
an account, the earnings of which are entirely dependent upon the performance
and dividends of Amax Gold Inc. Common Stock during the period of deferral.
Also, I understand that all distributions from the Plan will be in shares of
such
<PAGE>
Common Stock to the extent of whole shares credited to my Account, and cash to
the extent of any fractional shares. Finally, I understand that the Securities
and Exchange Commission will likely deem my deferrals under the Plan to be
purchases of Amax Gold Inc. Common Stock. Accordingly, during the period of
time that Compensation is credited to my Account under the Plan, I will be
required to make certain filings with the Securities and Exchange Commission.
I will be subject to the short-swing trading provisions of Section 16(b) of
the Securities Exchange Act of 1934 and, consequently, I may be effectively
prohibited from trading in any Amax Gold Inc. securities during my period of
participation in the Plan and possibly for an additional six months
thereafter.
Please revise my participation in the Plan in accordance with the foregoing
instructions.
Sincerely,
--------------------------- ,
Beneficiary Designation
Agreed to and Acknowledged by:
- -----------------------------
(Spouse)
<PAGE>
EXHIBIT 4.6
NON-QUALIFIED STOCK OPTION AGREEMENT
Granted Under the
1992 Amax Gold Inc. Stock Option Plan
of
AMAX GOLD INC.
P.O. Box 6940
Englewood, Colorado 80112
------
Option Number: 4-
Optionee: 2-
Social Security Number 3-
Number of Shares: 5-
Option Price: --
Date of Grant: March 21, 1994
Non Exercisable Until: March 21, 1996*
Expiration Date: March 21, 2004
* Subject to Paragraph 5 below.
1. Grant of Option. Amax Gold Inc. (the "Company") hereby grants to the
----------------
Optionee named above this Option to purchase the above stated number of shares
of its common stock, par value $0.01 per share ("Common Stock"), at the Option
Price per share indicated above.
2. Governing Terms and Conditions. This Option is granted under and
-------------------------------
subject in every respect to the Company's 1992 Stock Option Plan (the "Plan"),
a copy of which is attached. By accepting this Option, the Optionee
unconditionally accepts and agrees to be bound by the terms, conditions and
provisions of the Plan, all of which are incorporated herein by reference.
3. Expiration. This Option has a term of ten years from its date of
-----------
grant and may not be exercised after the Expiration Date set out above.
4. Termination of Employment. Subject to the exceptions specified in the
--------------------------
Plan, this Option may not be exercised unless at the time of exercise the
Optionee is in the employ of the Company, or one of its subsidiaries.
5. Exercise. This Option may be exercised in whole at any time or in
---------
part from time to time during the period ending on the Expiration Date set out
above subject to earlier termination of this Option in accordance with the
provisions of the Plan. In no event shall this Option be exercisable in whole
or in part prior to two years from its date of grant, except on the terms and
conditions pertaining to a Change in Control as defined in the Plan or as
otherwise specified in the Plan.
<PAGE>
6. Option Price. The aggregate Option Price of all shares purchased
------------
pursuant to an exercise of this Option shall be paid either (i) in cash or by
check, bank draft or money order payable to the order of the Company, or (ii)
through the delivery of previously acquired shares of Common Stock of the
Company owned by the Optionee, to the extent that such payment does not require
the delivery of a fractional share of such previously acquired Common Stock, or
(iii) a combination of (i) and (ii) above. Previously acquired shares delivered
to the Company shall be valued as provided in the Plan. In lieu of receiving
payment of the Option Price, the Company may, in its sole discretion, allow
the Optionee to use the alternative settlement method set out in the Plan.
7. Adjustment. The number of shares subject to this Option and the Option
----------
Price are subject to adjustment as set forth in the Plan.
8. No Assignments. This Option and the rights and privileges conferred by
--------------
this Agreement may not be transferred, assigned, pledged or hypothecated in any
way (whether by operation of law or otherwise) except by will or the laws of
descent and distribution, or in other circumstances specified in the Plan, and
shall not be subject to execution, attachment or similar process.
9. Conflicts. In the event of any conflict between the provisions of
---------
this Option and the provisions of the Plan, the provisions of the Plan shall
control.
IN WITNESS WHEREOF, Amax Gold Inc. has caused this Option to be duly
executed in its name.
Dated: April 1994
AMAX GOLD INC.
By:
-------------------------------
Chairman, President and CEO
Accepted by:
Dated:
- ---------------------------------- ---------------
Optionee Signature
<PAGE>
EXHIBIT 5.1
AMAX GOLD INC.
July 13, 1994
Amax Gold Inc.
9100 East Mineral Circle
Englewood, CO 80112
Re: Registration Statement on Form S-8; 4,200,000 Shares of Common Stock; To
Be Issued Pursuant to the Following Employee Benefit Plans: (i) Deferred
Compensation Plan for Members of the Board of Directors of Amax Gold
Inc.; (ii) Stock Grant Plan for Nonemployee Directors of Amax Gold Inc.;
(iii) Amax Gold Inc. 1992 Stock Option Plan; and (iv) Amax Gold Inc.
Performance Share Plan (collectively the "Benefit Plans")
Gentlemen:
As Vice President and General Counsel of Amax Gold Inc. (the "Company"), I
have acted as counsel to the Company with respect to the registration of
4,200,000 shares of the Company's common stock, par value $0.01 per share
("Common Stock") described in the above-referenced Registration Statement on
Form S-8 being filed with the Securities and Exchange Commission concurrently
herewith (the "Registration Statement"). In connection therewith, I have
participated in the preparation, authorization, execution and filing of the
Registration Statement, the preparation, authorization, execution and
implementation of the Benefit Plans and the authorization of the shares of
Common Stock issued and to be issued pursuant to the terms of the Benefit
Plans (the "Shares").
In addition, as Secretary of the Company I have custody of the essential
corporate records of the Company, including records of the proceedings of the
Company's Board of Directors authorizing the adoption of the Benefit Plans and
the issuance of the Shares pursuant to the terms of the Benefit Plans.
Based on the foregoing, I am of the opinion that the Shares have been duly
authorized and when issued and sold as contemplated in the Registration
Statement and in accordance with the terms of the Benefit Plans, will be
validly issued as fully paid and nonassessable shares of Common Stock of the
Company. Those 9,758 Shares which have been issued pursuant to the terms of
the Deferred Compensation Plan for Members of the Board of Directors of Amax
Gold Inc. are also duly authorized and have been validly issued as fully paid
and nonassessable shares of Common Stock of the Company.
In giving this opinion, I am acting as a member of the Bar of the State of New
York, and my opinion is limited to the laws of that
9100 East Mineral Circle, P.O. Box 6940, Englewood, Colorado 60155 USA
Telephone (303) 643-5500, Facsimile (303) 643-5505
<PAGE>
State, the federal laws of the United States of America and the general
corporation laws of the State of Delaware.
I hereby consent to be named in the Registration Statement and in the
Prospectus constituting a part thereof, as amended from time to time, as the
attorney who will pass upon legal matters in connection with the issuance of
the Shares, and to the filing of this Opinion as an Exhibit to the
Registration Statement. In giving this consent, I do not thereby admit that I
am in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the rules of the Securities and Exchange Commission.
Very truly yours,
/s/ Paul J. Hemschoot, Jr.
Paul J. Hemschoot, Jr.
Vice President, Secretary and
General Counsel
PJH/co/mr
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Amax Gold Inc. on Form S-8 of our reports, which include an explanatory
paragraph regarding a change in the method of accounting for exploration
expenditures and postemployment benefits in 1993, and a change in the method
of accounting for precious metals inventory, postretirement benefits and
income taxes in 1992, dated February 4, 1994, except for Note 8, for which the
date is March 18, 1994, on our audits of the consolidated financial statements
and financial statement schedules of Amax Gold Inc., as of December 31, 1993
and 1992, and for the three years ended December 31, 1993, 1992 and 1991.
/s/ Coopers & Lybrand
COOPERS & LYBRAND
Denver, Colorado
July 11, 1994
