<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )/1/
Atlas Corporation
- ----------------------------------------------------------------------
(Name of issuer)
Common Stock
- ----------------------------------------------------------------------
(Title of class of securities)
04926730
- ----------------------------------------------------------------------
(CUSIP number)
<TABLE>
<S> <C> <C>
N. Jordan
Ben L. Keisler, Esq. Secretary Robert W. Micsak, Esq.
Vice President & General Counsel Minorco Vice President & General Counsel
Minorco (U.S.A.) Inc. 9 Rue Sainte Zithe Independence Mining Company Inc.
30 Rockefeller Plaza, Suite 4212 L-2763, Luxembourg City 5251 DTC Parkway, Suite 700
New York, New York 10177 Luxembourg Englewood, Colorado 80111
(212) 332-3633 (352) 404-1101 (303) 889-0700
</TABLE>
- ----------------------------------------------------------------------
(Name, address and telephone number of person
authorized to receive notices and communications)
October 27, 1995
- ----------------------------------------------------------------------
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3)
or (4), check the following box [ ].
Check the following box if a fee is being paid with the
statement [X]. (A fee is not required only if the reporting person:
(1) has a previous statement on file reporting beneficial ownership of
more than five percent of the class of securities described in Item 1;
and (2) has filed no amendment subsequent thereto reporting beneficial
ownership of five percent or less of such class.) (See Rule 13d-7.)
Note. Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 64 pages)
_______________
/1/ The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a
prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
<PAGE>
CUSIP No. 04926730 13D Page 2 of 64 pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Independence Mining Company Inc. EIN: 13-2937806
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
1,400,000 (See Item 5)
9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
1,400,000 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,400,000 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.94%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
CUSIP No. 04926730 13D Page 3 of 64 pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Minorco (U.S.A.) Inc. - Solely due to indirect ownership through
its ownership of 100% of the common stock of Independence
Mining Company Inc. EIN: 84-1137980
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Colorado
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
1,400,000 (See Item 5)
9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
1,400,000 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,400,000 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.94%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
CUSIP No. 04926730 13D Page 4 of 64 pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Minorco - Solely due to indirect ownership through its wholly
owned subsidiary, Minorco (U.S.A.) Inc., which in turns owns
100% of the common stock of Independence Mining Company Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Luxembourg
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
1,400,000 (See Item 5)
9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
1,400,000 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,400,000 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.94%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
ITEM 1. SECURITY AND ISSUER.
-------------------
This statement relates to Common Stock (the "Common Shares")
of Atlas Corporation, a Delaware corporation ("Atlas"), which has its
principal executive offices at 370 17th Street, Suite 3150, Denver,
Colorado 80202.
ITEM 2. IDENTITY AND BACKGROUND.
-----------------------
(a) This statement is being jointly filed by each of the
following persons pursuant to Rule 13d-(1)(f) promulgated by the
Securities and Exchange Commission pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the "Act"):
(i) Independence Mining Company Inc., a Delaware corporation
("Independence"), by virtue of its direct beneficial ownership of
Common Shares; (ii) Minorco (U.S.A.) Inc., a Colorado corporation
("Minorco USA"), by virtue of its ownership of all the outstanding
common stock of Independence; and (iii) Minorco, a company
incorporated under the laws of Luxembourg ("Minorco"), by virtue of
its ownership of all the outstanding common stock of Minorco USA
(Independence, Minorco USA and Minorco are collectively referred to
herein as the "Reporting Persons").
The capital stock of Minorco is owned in part as follows:
approximately 45.8%, directly or indirectly through subsidiaries, by
Anglo American Corporation of South Africa Limited ("AAC" or "Anglo
American") which is a publicly held mining and finance company and
approximately 22.6%, directly or indirectly through subsidiaries, by
De Beers Centenary AG ("Centenary"), a publicly held Swiss diamond
mining and investment company. Approximately 38.4% of the capital
stock of Anglo American is owned, directly or through subsidiaries, by
De Beers Consolidated Mines Limited ("De Beers"), a publicly held
diamond mining and investment company. Approximately 29.4% of the
capital stock of Centenary and approximately 32.5% of the capital
stock of De Beers is owned, directly or through subsidiaries, by Anglo
American. De Beers owns approximately 9.5% of Centenary.
Mr. Nicholas F. Oppenheimer, Deputy Chairman and a director of
Centenary and De Beers, Deputy Chairman and Executive Director of AAC,
and a director of Minorco, and Mr. Henry R. Slack, a director of Terra
Industries, Inc., a Maryland corporation, and Minorco U.S.A., Chief
Executive, President and a director of Minorco and a director of Anglo
American, have indirect partial interests in approximately 7% of the
outstanding shares of Minorco and approximately 8% of the outstanding
shares of Anglo American. Also, Mr. Reuben F. Richards beneficially
owns 1,000 Minorco Ordinary Shares which constitutes less than one
percent of the outstanding shares of Minorco. Certain information
required by this Item 2 concerning the directors and executive
officers of the Reporting Persons and the directors and executive
officers of the person ultimately in control of the Reporting Persons
is set forth on Annex A attached hereto, which is incorporated herein
by reference.
The Reporting Persons may be deemed to constitute a "group"
for purposes of Section 13(d)(3) of the Act. The Reporting Persons
expressly disclaim that they have agreed to act as a group other than
as described in this Statement.
(b) The address of the principal business and principal
office of Independence is 5251 DTC Parkway, Suite 700, Englewood,
Colorado 80111. The address of the principal business and principal
office of Minorco USA is 30 Rockefeller Plaza, Suite 4212, New York,
New York 10112. The address of the principal business and principal
office of Minorco is 9 rue Sainte Zithe, L-2763 Luxembourg City, Grand
Duchy of Luxembourg. The address of the principal business and
principal office of AAC is 44 Main Street, Johannesburg, South Africa.
The address of the principal business and principal office of
Centenary is Langensandstrasse 27, CH 6000, Lucerne 14, Switzerland.
The address of the principal business and principal office of De Beers
is 36 Stockdale Street, Kimberley 8301, South Africa.
(c) Independence is involved in mining and natural
resources-related activities in North America. Minorco USA is
involved in mining and natural resource-related activities in North
America. Minorco is an international natural resources company with
operations in gold, base metals, industrial minerals, paper and
packaging and agribusiness.
(Page 5 of 64 pages)<PAGE>
(d) During the last five years, none of the Reporting
Persons nor, to the best knowledge of the Reporting Persons, any of
the persons named in Annex A to this Statement, has been convicted in
a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the last five years, none of the Reporting
Persons nor, to the best knowledge of the Reporting Persons, any of
the persons named in Annex A to this Statement, was a party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction as a result of which any such person was or is subject to
a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws.
(f) Except as otherwise indicated on Annex A, all persons
named in Annex A to this Statement are citizens of the United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
-------------------------------------------------
As of October 27, 1995, Independence has acquired 1,400,000
Common Shares as partial consideration for the sale to Atlas of
certain prospective mining properties located in Elko County, Nevada,
pursuant to a Purchase and Sale Agreement, dated October 25, 1995,
between Independence and Atlas.
ITEM 4. PURPOSE OF TRANSACTION.
----------------------
Independence acquired the Common Shares for the purpose of
investment and has no present intention of exerting control over the
business or assets of Atlas. Except as set forth above, neither the
Reporting Persons nor, to the best knowledge of the Reporting Persons,
any of the persons named in Annex A to this Statement, has formulated
any plans or proposals which relate to Atlas which would require
disclosure under Item 4 of this Schedule 13D. However, the Reporting
Persons may at any time, depending upon their evaluation of the
business and prospects of Atlas or other developments they consider
relevant, change their plans and intentions to take any and all
actions they may deem appropriate with respect to their investment in
Atlas. Such plans may include the increase, decrease or disposal of
their investment in Atlas. Such transactions may be effected in the
open market or in privately negotiated transactions. Atlas has
provided Independence with certain demand and piggyback registration
rights pursuant to which Atlas has agreed to register the sale of the
Common Shares by Independence under the Securities Act of 1933.
Except as described in this Item 4, none of the Reporting
Persons, nor, to the best knowledge of the Reporting Persons, any of
the persons named in Annex A to this Statement, has formulated any
plans or proposals which relate to or would result in: (a) the
acquisition by any person of additional securities of Atlas, or the
disposition of securities of Atlas; (b) an extraordinary corporate
transaction, such as a merger, reorganization or liquidation,
involving Atlas or any of its subsidiaries; (c) a sale or transfer of
a material amount of assets of Atlas or any of its subsidiaries;
(d) any change in the present Board of Directors or management of
Atlas, including any plans or proposals to change the number or term
of directors or to fill any existing vacancies on the Board; (e) any
material change in the present capitalization or distribution policy
of Atlas; (f) any other material change in Atlas' business or
corporate structure; (g) any changes in Atlas' Certificate of
Incorporation or other actions which may impede the acquisition of
control of Atlas by any person; (h) causing a class of securities of
Atlas to be delisted from a national securities exchange or to cease
to be authorized to be quoted in an interdealer quotation system of a
registered national securities association; (i) causing a class of
equity securities of Atlas to become eligible for termination of
registration pursuant to Section 12(g)(4) of the Act; or (j) any
action similar to those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
------------------------------------
(a) Independence is the beneficial owner of 1,400,000
Common Shares, which in the aggregate represents approximately 6.94%
of the outstanding Common Shares. The percentage calculated in this
Item 5 is
(Page 6 of 64 pages)<PAGE>
based upon 18,777,500 Common Shares outstanding as of September 21,
1995, as disclosed in Atlas' Annual Report on Form 10-K for the fiscal
year ended June 30, 1995.
By virtue of its ownership of all the outstanding common
stock of Independence, Minorco USA may be deemed to possess indirect
beneficial ownership of the Common Shares beneficially owned by
Independence. By virtue of its ownership of all the outstanding
common stock of Minorco USA, Minorco may be deemed to possess indirect
beneficial ownership of the Common Shares beneficially owned by
Independence. The filing of this Statement shall not be construed as
an admission by any Reporting Person that, for the purpose of
Section 13(d) or 13(g) of the Act, such Reporting Person is the
beneficial owner of any securities covered by this Statement other
than securities owned of record by such Reporting Person.
Except as indicated in this Item 5 or as set forth below,
neither the Reporting Persons nor, to the best knowledge of the
Reporting Persons, any of the persons named in Annex A to this
Statement owns beneficially, or has any right to acquire, directly or
indirectly, any Common Shares.
(b) Independence has the power to vote or direct the vote
and the power to dispose of or direct the disposition of the 1,400,000
Common Shares beneficially owned by Independence.
By virtue of its ownership of all the outstanding common
stock of Independence, Minorco USA may be deemed to possess indirect
beneficial ownership of the Common Shares beneficially owned by
Independence and may be deemed to possess the power to vote or direct
the vote and the power to dispose of or direct the disposition of the
Common Shares beneficially owned by Independence. By virtue of its
ownership of all the outstanding common stock of Minorco USA, Minorco
may be deemed to possess indirect beneficial ownership of the Common
Shares beneficially owned by Independence and may be deemed to possess
the power to vote or direct the vote and the power to dispose of or
direct the disposition of the Common Shares beneficially owned by
Independence. The filing of this Statement shall not be construed as
an admission by any Reporting Person that, for the purpose of
Section 13(d) or 13(g) of the Act, such Reporting Person is the
beneficial owner of any securities covered by this Statement other
than securities owned of record by such Reporting Person.
(c) Except as indicated in Item 3 above, neither the
Reporting Persons nor, to the best knowledge of the Reporting Persons,
any of the persons named in Annex A to this Statement, has effected a
transaction in Common Shares during the past 60 days.
(d) No person other than the Reporting Persons has the
right to receive or the power to direct the receipt of distributions
from, or the proceeds from the sale of, the Common Shares beneficially
owned by Independence.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
--------------------------------------------------------
WITH RESPECT TO SECURITIES OF THE ISSUER.
----------------------------------------
Except as otherwise set forth in this Statement, to the best
knowledge of the Reporting Persons, no contracts, arrangements,
understandings or relationships (legal or otherwise) exist among the
persons named in Item 2 or between such persons and any other person
with respect to any securities of Atlas, including but not limited to
transfer or voting of any of the securities, finder's fees joint
ventures, loan or option arrangements, puts or calls, guarantees of
profits, division of profits or loss, or the giving of withholding of
proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
--------------------------------
Exhibit A - Agreement Concerning Joint Filing of Schedule 13D
Exhibit B - Purchase and Sale Agreement
Exhibit C - Registration Rights Agreement
(Page 7 of 64 pages)<PAGE>
SIGNATURE
After reasonable inquiry and to the best of our knowledge
and belief, the undersigned certifies that the information set forth
in this Statement is true, complete and correct.
INDEPENDENCE MINING COMPANY INC.
By: Robert W. Micsak
-------------------------------------
Name: Robert W. Micsak
Title: Vice President
Dated: November 3, 1995
(Page 8 of 64 pages)<PAGE>
SIGNATURE
After reasonable inquiry and to the best of our knowledge
and belief, the undersigned certifies that the information set forth
in this Statement is true, complete and correct.
MINORCO (U.S.A.) INC.
By: Ben L. Keisler
-------------------------------------
Name: Ben L. Keisler
Title: Vice President
Dated: November 3, 1995
(Page 9 of 64 pages)<PAGE>
SIGNATURE
After reasonable inquiry and to the best of our knowledge
and belief, the undersigned certifies that the information set forth
in this Statement is true, complete and correct.
MINORCO
By: N. Jordan
-------------------------------------
Name: N. Jordan
Title: Secretary
Dated: November 3, 1995
(Page 10 of 64 pages)<PAGE>
ANNEX A
I. The following table sets forth certain information concerning
each of the Directors and Officers of Independence.
Name: John J. Ellis (Director, Chairman of the
-------------
Board, Chief Executive Officer)
Citizenship: Canadian
Business Address: 518 B Idaho Street
Elko, Nevada 89801
Principal Occupation: Director, Vice President, Minorco USA
Name: Reuben F. Richards (Director)
------------------
Citizenship: United States of America
Business Address: 30 Rockefeller Plaza, Suite 4212
New York, New York 10112
Principal Occupation: Director, Chairman of the Board, President,
Chief Executive Officer, Minorco USA,
Chairman of Terra Industries Inc.
Name: H.R. Slack (Director)
----------
Citizenship: United States of America
Business Address: 40 Holborn Viaduct
London, England EC1P 1AJ
Principal Occupation: Director, President and Chief Executive
Officer, Minorco, Director, AAC
Name: Andrew B. Adams (Vice President, Chief
---------------
Financial Officer, Treasurer)
Citizenship: British
Business Address: 5251 DTC Parkway, Suite 700
Englewood, Colorado 80111
Principal Occupation: Vice President, Chief Financial Officer,
Treasurer
Name: Ben Guenther (Senior Vice President,
------------
Independence Region Resident Manager)
Citizenship: United States of America
Business Address: HC 31, Box 78
Elko, Nevada 89801
Principal Occupation: Senior Vice President, Independence Region
Resident Manager
Name: Jim Komadina (Vice President, Operations,
------------
Cripple Creek District)
Citizenship: United States of America
Business Address: 2755 State Highway 67
Victor, Colorado 80860
Principal Occupation: Vice President, Operations, Cripple Creek
District
Name: Robert W. Micsak (Vice President, General
----------------
Counsel, Secretary)
Citizenship: United States of America
Business Address: 5251 DTC Parkway, Suite 700
Englewood, Colorado 80111
Principal Occupation: Vice President, General Counsel, Secretary
Name: Thomas Porter (Vice President, Independence
-------------
Region Mine Operations)
Citizenship: United States of America
Business Address: HC 31 Box 78
Elko, Nevada 89801
Principal Occupation: Vice President, Independence Region Mine
Operations
(Page 11 of 64 pages)<PAGE>
II. The following table sets forth certain information concerning the
Directors and other Officers of Minorco USA.
The following list sets forth the names of certain Directors and
Executive Officers of Minorco USA and the sections of this Annex "A"
in which other information concerning them is set out, to which
sections reference is hereby made:
<TABLE>
<S> <C> <C>
John J. Ellis (Director, Vice President) Section I
R.F. Richards (Director, Chairman) Section I
H.R. Slack (Director) Section I
</TABLE>
Name: E. G. Beimfohr (Director)
--------------
Citizenship: United States of America
Business Address: 320 Park Avenue
New York, New York 10022-6815
Principal Occupation: Partner, Lane & Mittendorf (Law firm)
Name: D. E. Fisher (Director)
------------
Citizenship: British
Business Address: 9 rue Sainte Zithe
L-2763 Luxembourg City
Luxembourg
Principal Occupation: Finance Director, Minorco
Name: A. W. Lea (Director)
---------
Citizenship: South African
Business Address: 40 Holborn Viaduct
London, England EC1N 2PQ
Principal Occupation: Executive Director, Minorco, Director, AAC
Name: B. M. Joyce (Vice President)
-----------
Citizenship: United States of America
Business Address: Terra Centre, 600 Fourth Street,
Sioux City, Iowa 51101
Principal Occupation: President and Chief Executive Officer, Terra
Industries Inc.
Name: B. L. Keisler (Director, Vice
President,
-------------
General Counsel and Secretary) Minorco USA
Citizenship: United States of America
Business Address: 30 Rockefeller Plaza, Suite 4212
New York, New York 10112
Principal Occupation: Director, Vice President, General Counsel and
Secretary, Minorco USA
Name: G. J. Leinsdorf (Vice President)
---------------
Citizenship: United States of America
Business Address: 250 Park Avenue, 19th Floor
New York, New York 10177, U.S.A.
Principal Occupation: Director and President, Minorco (U.S.A.)
Marketing Corporation (Metal sales), Vice
President, Marketing, Minorco USA
Name: Michael B. Smith (Group Controller and
----------------
Treasurer)
Citizenship: United States of America and Canada
Business Address: 30 Rockefeller Plaza. Suite 4212
New York, New York 10112
Principal Occupation: Group Controller and Treasurer, Minorco USA
(Page 12 of 64 pages)<PAGE>
III. The following table sets forth certain information concerning
each of the Directors and other Officers of Minorco.
The following list sets forth the names of certain Directors and
Executive Officers of Minorco and the sections of this Annex "A" in
which other information concerning them is set out, to which sections
reference is hereby made:
<TABLE>
<S> <C> <C>
E.G. Beimfohr (Director) Section II
D.E. Fisher (Finance Director) Section II
A.W. Lea (Executive Director) Section II
R.F. Richards (Director) Section I
H.R. Slack (Director, President and Chief Executive Officer)Section I
</TABLE>
Name: J. Ogilvie Thompson (Director and Chairman)
-------------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Chairman and Director, Minorco, Chairman and
Director, De Beers Consolidated Mines Limited
("De Beers"), Chairman and Director, De Beers
Centenary AG ("Centenary"), Executive
Director and Chairman, AAC
Name: J. R. de Aragao Bozano (Director)
----------------------
Citizenship: Brazilian
Business Address: Banco Bozano Simonsen S. A., 138 Avenida Rio
Branco, Rio de Janeiro, Brazil
Principal Occupation: Chairman of the Board, Banco Bozano Simonsen
de Investimento S.A. (Merchant bank),
Chairman of the Board, Cia. Bozano Simonsen
Comercio e Industria S.A. (Commercial bank)
Name: P. C. D. Burnell (Director)
----------------
Citizenship: British
Business Address: 40 Holborn Viaduct
London, England EC1N 2PQ
Principal Occupation: Executive Director, Minorco, Director, AAC
Name: C. A. Crocker (Director)
-------------
Citizenship: United States of America
Business Address: The Crocker Group
Georgetown University
School of Foreign Service Intercultural Centre
Room 813
Washington D.C. 20057
Principal Occupation: Research Professor of Diplomacy
Name: Viscount Etienne Davignon (Director)
-------------------------
Citizenship: Belgian
Business Address: 30 Rue Royale
B-1000 Brussels, Belgium
Principal Occupation: Chairman, Societe Generale de Belgique (Bank)
Name: E. P. Gush (Director)
----------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Executive Director and Deputy Chairman, AAC,
Director, De Beers, Director, Centenary
(Page 13 of 64 pages)<PAGE>
Name: M. W. King (Director)
----------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Executive Director and Finance Division Head,
AAC
Name: W. R. Loomis, Jr. (Director)
-----------------
Citizenship: United States of America
Business Address: 30 Rockefeller Plaza
New York, New York 10112, U.S.A.
Principal Occupation: General Partner, Lazard Freres & Co.
(Investment banking firm)
Name: J.E. Oppenheimer (Director)
----------------
Citizenship: German
Business Address: Av Pedro de Valdivia 295
Santiago, Chile
Principal Occupation: Vice President and Director, AMSA Limited
(Mining finance)
Name: N. F. Oppenheimer (Director)
-----------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Director and Deputy Chairman, De Beers,
Director and Deputy Chairman, Centenary,
Deputy Chairman and Executive Director, AAC
Name: G. W. H. Relly (Director)
--------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Executive Director, AAC, Director, De Beers,
Director, Centenary
Name: C. E. Ritchie (Director)
-------------
Citizenship: Canadian
Business Address: 44 King Street West
Toronto, Ontario M5H 1E2
Principal Occupation: Chairman of the Executive Committee and
Director, Bank of Nova Scotia (Commercial
bank)
Name: R.S. Robertson (Senior Vice President)
--------------
Citizenship: British
Business Address: 40 Holborn Viaduct
London, England EC1N 2PQ
Principal Occupation: Senior Vice President, Minorco, Alternate
Director AAC
Name: H-J. Schreiber (Director)
--------------
Citizenship: German
Business Address: Bestor Investers Ltd.
10, Collyer Quay
11-01, Ocean Bldg.
Singapore 0104
Principal Occupation: Chairman, Bestor Investers Pte. Ltd.
(Consulting firm)
(Page 14 of 64 pages)<PAGE>
Name: O.R. Smith (Director)
----------
Citizenship: United States of America
Business Address: 101 Wood Avenue
Iselin, New Jersey 08830-0770
U.S.A.
Principal Occupation: Chairman, Director and Chief Executive
Officer of Engelhard Corporation
Name: T. C. A. Wadeson (Director)
----------------
Citizenship: British
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Executive Director and Group Technical
Director, AAC
Name: P. S. Wilmot-Sitwell (Director)
--------------------
Citizenship: British
Business Address: 40 Holborn Viaduct
London, England EC1N 2PQ
Principal Occupation: Chairman, Mercury World Mining Trust PLC,
Non-Executive Director, S.G. Warburg
Securities Limited
Name: G. S. Young (Executive Director)
-----------
Citizenship: South African
Business Address: Praca da Republica, 497-80 andar, 01045 - Sao
Paulo - SP, Brasil
Principal Occupation: Chairman and Chief Executive Officer, AMSA
Limited (Mining finance), Director, AAC
Name: N. Jordan (Secretary)
---------
Citizenship: British
Business Address: 9 rue Sainte Zithe
L-2763 Luxembourg City, Luxembourg
Principal Occupation: Secretary, Minorco
Name: D.A. Turner (Vice President, Financial
-----------
Planning)
Citizenship: British
Business Address: 9 rue Sainte Zithe
L-2763 Luxembourg City, Luxembourg
Principal Occupation: Vice President, Financial Planning, Minorco
Name: A. R. Attwood (Treasurer)
-------------
Citizenship: British
Business Address: 9 rue Sainte Zithe
L-2763 Luxembourg City, Luxembourg
Principal Occupation: Treasurer, Minorco
Name: M. J. Gordon (Senior Vice President)
------------
Citizenship: British
Business Address: 40 Holborn Viaduct
London, England EC1N 2PQ
Principal Occupation: Senior Vice President, Corporate Finance,
Minorco
(Page 15 of 64 pages)<PAGE>
IV. The following table sets forth certain information concerning
each of the Executive Directors, Directors, Alternate Directors and
other Officers of AAC.
The following list sets forth the names of certain Executive
Directors, Directors, Alternate Directors and Officers of AAC and the
sections of this Annex "A" in which other information concerning them
is set out, to which sections reference is hereby made:
<TABLE>
<S> <C> <C>
P.C.D. Burnell (Director) Section III
E.P. Gush (Executive Director and Deputy Chairman)Section III
M.W. King (Executive Director) Section III
A.W. Lea (Director) Section II
N.F. Oppenheimer(Deputy Chairman and Executive Director)Section III
G.W.H. Relly (Executive Director) Section III
R.S. Robertson (Alternate Director) Section III
H.R. Slack (Director) Section I
J. Ogilvie Thompson(Chairman and Executive Director) Section III
T.C.A. Wadeson (Executive Director) Section III
G.S. Young (Director) Section III
</TABLE>
Name: P. M. Baum (Alternate Director)
----------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director and Secretary to Executive
Committee, AAC
Name: W. G. Boustred (Executive Director and Deputy
--------------
Chairman)
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Executive Director and Deputy Chairman, AAC,
Director, Anglo American Industrial
Corporation Limited (Industrial holding
company) ("AMIC"), Director Anglo American
Coal Corporation Limited (Coal mining,
treatment and marketing company) ("AMCOAL")
Name: L. Boyd (Executive Director and Deputy
-------
Chairman)
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Executive Director and Deputy Chairman, AAC,
Director and Chairman, AMIC
Name: H. M. Brown (Alternate Director)
-----------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director and Consulting Engineer,
AAC
Name: A. H. Calver (Alternate Director and Deputy
------------
Technical Director, Engineering)
Citizenship: British
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director and Deputy Technical
Director, Engineering, AAC
(Page 16 of 64 pages)<PAGE>
Name: J. W. Campbell (Alternate Director)
--------------
Citizenship: British
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director, AAC, Managing Director,
De Beers Industrial Diamond Division (Pty)
Limited (Diamond trading company)
Name: G. A. Chalmers (Group Accountant)
--------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Group Accountant, AAC
Name: T. N. Chapman (Director)
-------------
Citizenship: South African
Business Address: Great Westerford, Rondebosch, 7700
Republic of South Africa
Principal Occupation: Director, AAC, Chairman of The Southern Life
Association Limited (Life insurance company)
Name: R. M. Crawford (Alternate Director and
--------------
Manager)
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director and Manager, Diamond
Services Division, AAC, Director, De Beers,
Director, Centenary
Name: A. D. Deuchar (Executive Director and Deputy
-------------
Technical Director, Metallurgy)
Citizenship: Australian
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Executive Director and Deputy Technical
Director, Metallurgy, AAC
Name: J. F. Drysdale (Alternate Director)
--------------
Citizenship: British
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director, AAC
Name: C.T. Elphick (Alternate Director)
------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director, AAC
Name: D. M. L. Farry (Assistant Secretary)
--------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Assistant Secretary, AAC
(Page 17 of 64 pages)<PAGE>
Name: R. M. Godsell (Executive Director)
-------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Executive Director, AAC, Deputy Chairman and
Chief Executive, Gold and Uranium Division,
AAC, Director, Anglo American Gold Investment
Company Limited ("AMGOLD")
Name: R. A. A. Gower (Alternate Director)
--------------
Citizenship: South African
Business Address: CDM Centre, 10 Bulow Street
Windhoek, 9000 Namibia
Principal Occupation: Alternate Director, AAC
Name: R. A. Hambro (Alternate Director)
------------
Citizenship: British
Business Address: J O Hambro & Company, Ltd.
30 Queen Anne's Gate
London SW1H 9AL, England
Principal Occupation: Investment Bankers Director, J O Hambro &
Company, Limited (Investment banking firm)
Name: R. N. Hambro (Director)
------------
Citizenship: British
Business Address: J O Hambro & Company, Ltd.
30 Queen Anne's Gate
London SW1H 9AL, England
Principal Occupation: Investment Bankers Director, J O Hambro &
Company, Limited (Investment banking firm)
Name: J. B. Hawthorne (Alternate Director and
---------------
Deputy Technical Director, Geology)
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director and Deputy Technical
Director, Geology, AAC
Name: M. J. Henrey (Alternate Director)
------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director, AAC, Director, E.
Oppenheimer and Son (Pty) Limited (Investment
holding firm)
Name: G. M. Holford (Alternate Director)
-------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director and Finance Manager,
Financial Management and Consulting Services,
AAC
Name: J. A. Holmes (Director)
------------
Citizenship: British
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Director, AAC
(Page 18 of 64 pages)<PAGE>
Name: K. M. Hosking (Alternate Director)
-------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director, AAC, Managing Director,
Anglo American Farms Limited (Farming
company), Director, AMGOLD
Name: J.C.L. Keswick (Director)
--------------
Citizenship: British
Business Address: 41 Tower Hill
London EC3N 4HA, England
Principal Occupation: Director, AAC, Director and Chairman, Hambros
Bank Limited, Director, De Beers, Director,
Centenary
Name: N. J. Keys (Alternate Director)
----------
Citizenship: Australian
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director, Projects Director, New
Mining Business Division, AAC
Name: R. P. Lander (Executive Director)
------------
Citizenship: Zimbabwean
Business Address: 70 Samora Machel Avenue
Harare C.4, Zimbabwe
Principal Occupation: Executive Director, AAC, Chief Executive,
Anglo American Corporation Services Limited
(Finance, investment and administration
company)
Name: G. G. L. Leissner (Alternate Director)
-----------------
Citizenship: South African
Business Address: First Floor, 11 Diagonal Street,
Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director, AAC, Managing Director,
Anglo American Property Services
(Proprietary) Limited (Property development
and administration company), Director and
Chairman, Anglo American Properties Limited
(Property investment company)
Name: C. L. Maltby (Secretary)
------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Secretary, AAC
Name: N. Mayer (Alternate Director)
--------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director, Managing Director, Gold
and Uranium Division, AAC
Name: A. B. McKerron (Executive Director)
--------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Executive Director and Chairman, New Mining
Business Division, AAC
(Page 19 of 64 pages)<PAGE>
Name: D. M. J. Ncube (Alternate Director)
--------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Director and Chairman, African Life Assurance
Company Limited (life insurance company)
Name: M. C. O'Dowd (Executive Director)
------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Executive Director, AAC, Chairman of the
Chairman's Fund, (Community development and
education organization)
Name: A. E. Oppenheimer (Director)
-----------------
Citizenship: British
Business Address: 17 Charterhouse Street London EC1N 6RA,
England
Principal Occupation: Director, AAC, Director and Deputy Chairman,
The Diamond Trading Company (Pty) Limited
(Diamond trading company), Director, De
Beers, Director, Centenary
Name: G.R. Pardoe (Alternate Director)
-----------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director, AAC, Financial
Director, AMIC
Name: G. M. Ralfe (Director)
-----------
Citizenship: South African
Business Address: 17 Charterhouse Street
London EC1N 6RA, England
Principal Occupation: Director, The Diamond Trading Co. (Pty)
Limited (Diamond trading company), Director,
AAC, Director, De Beers, Director, Centenary
Name: M. A. Ramphele (Director)
--------------
Citizenship: South African
Business Address: University of Cape Town
Rondebosch, 7700
Republic of South Africa
Principal Occupation: Deputy Vice-Chancellor, University of Cape
Town (Academic)
Name: D. Rankin (Executive Director)
---------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Executive Director, AAC, Chairman, AMCOAL
Name: P. F. Retief (Director)
------------
Citizenship: South African
Business Address: Consolidated Building, Cor. Fox and Harrison
Streets, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Chairman, Johannesburg Consolidated
Investment Company Limited (Investment
company), Director, Standard Bank Investment
Corporation Limited (Bank holding company)
(Page 20 of 64 pages)<PAGE>
Name: C. J. Saunders (Director)
--------------
Citizenship: South African
Business Address: The Tongaat-Hulett Group Ltd., Main Avenue,
Maidstone, 4380
Republic of South Africa
Principal Occupation: Executive Chairman, The Tongaat-Hulett Group
Limited (Industrial processing company),
Director, Standard Bank Investment
Corporation Limited (Bank holding company),
Director, AMIC
Name: M.W. Spicer (Alternate Director)
-----------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director and Group Public Affairs
Consultant, AAC
Name: J. H. Steyn (Director)
-----------
Citizenship: South African
Business Address: 14 Keerom Street, Cape Town, 8001
Republic of South Africa
Principal Occupation: Director, Barlow Limited (Industrial holding
company), Director, First National Bank
Holdings Limited (Bank holding company)
Name: C. L. Sunter (Executive Director)
------------
Citizenship: British
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Executive Director and Chairman, Gold and
Uranium Division, AAC, Director, AMGOLD
Name: D. L. Titlestad (Alternate Director)
---------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director and Manager, Legal
Services, AAC
Name: A. J. Trahar (Executive Director)
------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Executive Director, AAC, Director and Deputy
Chairman, AMIC, Executive Chairman, Mondi
Limited (Paper manufacturer)
Name: K. J. Trueman (Alternate Director)
-------------
Citizenship: British
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director and Managing Director,
Coal Division, AAC, Managing Director, AMCOAL
Name: D. J. van Jaarsveld (Alternate Director)
-------------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director and Consulting Engineer,
Diamond Services Division, AAC
(Page 21 of 64 pages)<PAGE>
Name: K. H. Williams (Alternate Director)
--------------
Citizenship: South African
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director and Director, Marketing,
Gold and Uranium Division, AAC, Director,
AMGOLD
Name: C. W. P. Yates (Alternate Director)
--------------
Citizenship: British
Business Address: 44 Main Street, Johannesburg, 2001
Republic of South Africa
Principal Occupation: Alternate Director and Finance Manager,
Corporate and International Finance
Department, AAC
(Page 22 of 64 pages)<PAGE>
V. The following table sets forth certain information concerning
each of the Directors and other Officers of Centenary.
The following list sets forth the names of the Chairman and
certain Directors of Centenary and the sections of this Annex "A" in
which other information concerning them is set out, to which sections
reference is hereby made:
<TABLE>
<S> <C> <C>
J. Ogilvie Thompson(Director and Chairman) Section III
N.F. Oppenheimer(Director and Deputy Chairman) Section III
R.M. Crawford (Director) Section IV
E.P. Gush (Director) Section III
A.E. Oppenheimer(Director and President) Section IV
G.W.H. Relly (Director) Section III
G.M. Ralfe (Director) Section IV
</TABLE>
Name: J. A. Barbour (Director)
-------------
Citizenship: British
Business Address: 17 Charterhouse Street
London EC1N 6RA, England
Principal Occupation: Director, De Beers, Director, Centenary
Name: G. F. H. Burne (Director)
--------------
Citizenship: British
Business Address: 17 Charterhouse Street
London, England EC1N 6RA
Principal Occupation: Director, De Beers, Director, Centenary,
Member of the Executive Committee, The
Central Selling Organization
Name: T. W. H. Capon (Director)
--------------
Citizenship: British
Business Address: 17 Charterhouse Street
London EC1N 6RA, England
Principal Occupation: Director, De Beers, Director, Centenary,
Member of the Executive Committee, The
Central Selling Organization
Name: L. A. Lincoln (Director)
-------------
Citizenship: South African
Business Address: Langensandstrasse 27
CH 6000 Lucerne 14
Switzerland
Principal Occupation: Director, De Beers, Director, Centenary
Name: B. Marole (Director)
---------
Citizenship: Motswana
Business Address: Private Bag 0018, Gaborone, Botswana
Principal Occupation: Permanent Secretary, Ministry of Mineral
Resources and Water Affairs, Botswana
Name: O.K. Matambo (Director)
------------
Citizenship: Motswana
Business Address: Private Bag 008, Gaborone,
Botswana
Principal Occupation: Permanent Secretary, Ministry of Finance and
Development Planning, Botswana
(Page 23 of 64 pages)<PAGE>
Name: J. P. Pudney (Director)
------------
Citizenship: British
Business Address: 17 Charterhouse Street, London, England EC1N
6RA
Principal Occupation: Director, De Beers, Director, Centenary,
Member of Executive Committee, The Central
Selling Organization
(Page 24 of 64 pages)<PAGE>
VI. The following table sets forth certain information concerning
each of the Directors and other Officers of De Beers.
The following list sets forth the names of the Chairman and
certain Directors of De Beers and the sections of this Annex "A" in
which other information concerning them is set out, to which sections
reference is hereby made:
<TABLE>
<S> <C> <C>
J. Ogilvie Thompson(Director and Chairman) Section III
N.F. Oppenheimer(Director and Deputy Chairman) Section III
J.A. Barbour (Director) Section V
G.F.H. Burne (Director) Section V
T.W.H. Capon (Director) Section V
R.M. Crawford (Director) Section IV
E.P. Gush (Director) Section III
J.C.L. Keswick (Director) Section IV
L.A. Lincoln (Director) Section V
B. Marole (Director) Section V
O.K. Matambo (Director) Section V
A.E. Oppenheimer(Director) Section IV
J.P. Pudney (Director) Section V
G.M. Ralfe (Director) Section IV
G.W.H. Relly (Director) Section III
</TABLE>
(Page 25 of 64 pages)<PAGE>
EXHIBIT INDEX
Page
----
A Agreement Concerning Joint Filing of Schedule 13D 27
B Purchase and Sale Agreement 29
C Registration Rights Agreement 57
Page 26 of 64 pages
AGREEMENT CONCERNING JOINT FILING
OF SCHEDULE 13D
The undersigned agree as follows:
(i) each of them is individually eligible to use the
Schedule 13D to which this Exhibit is attached, and such Schedule 13D
is filed on behalf of each of them; and
(ii) each of them is responsible for the timely filing of
such Schedule 13D and any amendments thereto, and for the completeness
and accuracy of the information concerning such person contained
therein; but none of them is responsible for the completeness of
accuracy of the information concerning the other persons making the
filing, unless such person knows or has reason to believe that such
information is inaccurate.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same instrument.
Dated: November 3, 1995
* * * * * *
(Page 27 of 64 pages)<PAGE>
INDEPENDENCE MINING COMPANY INC.
By Robert W. Micsak
--------------------------------------
Its Vice President
-------------------------------------
MINORCO (U.S.A.) INC.
By Ben L. Keisler
--------------------------------------
Its Vice President
-------------------------------------
MINORCO
By N. Jordan
--------------------------------------
Its Secretary
-------------------------------------
(Page 28 of 64 pages)
PURCHASE AND SALE AGREEMENT
BETWEEN
INDEPENDENCE MINING COMPANY INC.
AND
ATLAS CORPORATION
October 25, 1995
(Page 29 of 64 pages)<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I PURCHASE OF INDEPENDENCE'S INTEREST IN
THE PROPERTIES. . . . . . . . . . . . . . . . . . . 1
1.1 Transfer of Interests to Atlas . . . . . . . . 1
1.2 Purchase Price . . . . . . . . . . . . . . . . 1
ARTICLE II CLOSING . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Closing. . . . . . . . . . . . . . . . . . . . 2
2.2 Deliveries at Closing. . . . . . . . . . . . . 2
ARTICLE III OTHER AGREEMENTS OF INDEPENDENCE AND
ATLAS . . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Information and Data . . . . . . . . . . . . . 3
3.2 Transfer of Permits. . . . . . . . . . . . . . 4
3.3 Assumption of Obligations. . . . . . . . . . . 4
3.4 NYSE Listing Requirements. . . . . . . . . . . 4
3.5 Reasonable Best Efforts; Further
Assurances . . . . . . . . . . . . . . . . . . 4
3.6 Access to Records Before Closing . . . . . . . 4
3.7 Sales, Use, Transfer and Other
Taxes. . . . . . . . . . . . . . . . . . . . . 4
3.8 BLM Exchange Property. . . . . . . . . . . . . 5
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF
INDEPENDENCE. . . . . . . . . . . . . . . . . . . . 6
4.1 Representations and Warranties of
Independence . . . . . . . . . . . . . . . . . 6
(a) Organization and Standing . . . . . . . . 6
(b) Qualification . . . . . . . . . . . . . . 6
(c) Corporate Power . . . . . . . . . . . . . 6
(d) Authorization . . . . . . . . . . . . . . 6
(e) Royalties . . . . . . . . . . . . . . . . 7
(f) Permits and Licenses. . . . . . . . . . . 7
(g) Title to Claims . . . . . . . . . . . . . 7
(h) Water Rights. . . . . . . . . . . . . . . 9
(i) Environmental Compliance. . . . . . . . . 9
(j) Material Contracts and
Commitments . . . . . . . . . . . . . . . 9
(k) Legality. . . . . . . . . . . . . . . . . 10
(l) Litigation and Claims . . . . . . . . . . 10
(m) Consents. . . . . . . . . . . . . . . . . 10
(n) Taxes . . . . . . . . . . . . . . . . . . 10
(o) Brokerage or Finder's Fee . . . . . . . . 10
(p) Investment Intent . . . . . . . . . . . . 10
-i-
(Page 30 of 64 pages)<PAGE>
(q) Private Placement
Representations . . . . . . . . . . . . . 11
(r) Disclaimer of Warranties. . . . . . . . . 11
ARTICLE V REPRESENTATIONS AND WARRANTIES OF ATLAS . . . . . . 11
5.1 Representations and Warranties of
Atlas. . . . . . . . . . . . . . . . . . . . . 11
(a) Organization and Standing . . . . . . . . 11
(b) Qualification . . . . . . . . . . . . . . 11
(c) Corporate Power . . . . . . . . . . . . . 12
(d) Authorization . . . . . . . . . . . . . . 12
(e) Brokerage or Finder's Fee . . . . . . . . 12
(f) The Shares. . . . . . . . . . . . . . . . 12
(g) Financial Statements and
Reports . . . . . . . . . . . . . . . . . 13
(h) Absence of Certain Changes. . . . . . . . 13
(i) Disclaimer of Warranties. . . . . . . . . 14
(j) Investigation . . . . . . . . . . . . . . 14
ARTICLE VI INDEMNIFICATION . . . . . . . . . . . . . . . . . . 14
6.1 Indemnification of Independence. . . . . . . . 14
6.2 Indemnification of Atlas . . . . . . . . . . . 15
6.3 Notification; Defense of Third-
Party Claims . . . . . . . . . . . . . . . . . 15
6.4 Notice; Defense of Non-Third-Party
Claims . . . . . . . . . . . . . . . . . . . . 16
6.5 Threshold. . . . . . . . . . . . . . . . . . . 16
6.6 Affiliate Indemnitees. . . . . . . . . . . . . 16
6.7 Reliance Upon Representations and
Warranties . . . . . . . . . . . . . . . . . . 16
ARTICLE VII CONDITIONS PRECEDENT TO CLOSING . . . . . . . . . . 17
7.1 Mutual Conditions. . . . . . . . . . . . . . . 17
(a) Litigation. . . . . . . . . . . . . . . . 17
7.2 Conditions to Independence's
Obligations. . . . . . . . . . . . . . . . . . 17
(a) Representations and Warranties
True. . . . . . . . . . . . . . . . . . . 17
(b) No Material Event . . . . . . . . . . . . 17
(c) Consents and Waivers. . . . . . . . . . . 17
(d) Performance of Obligations. . . . . . . . 17
7.3 Conditions to Atlas' Obligations . . . . . . . 17
(a) Representations and Warranties
True. . . . . . . . . . . . . . . . . . . 18
(b) No Material Event . . . . . . . . . . . . 18
(c) Consents and Waivers. . . . . . . . . . . 18
(d) Performance of Obligations. . . . . . . . 18
ARTICLE VIII [intentionally omitted] . . . . . . . . . . . . . . 18
-ii-
(Page 31 of 64 pages)<PAGE>
ARTICLE IX SURVIVAL OF REPRESENTATIONS AND
WARRANTIES. . . . . . . . . . . . . . . . . . . . . 18
9.1 Survival . . . . . . . . . . . . . . . . . . . 18
ARTICLE X GENERAL PROVISIONS. . . . . . . . . . . . . . . . . 18
10.1 Notices. . . . . . . . . . . . . . . . . . . . 18
10.2 Governing Law. . . . . . . . . . . . . . . . . 19
10.3 Parties in Interest; Assignment. . . . . . . . 20
10.4 Entire Agreement . . . . . . . . . . . . . . . 20
10.5 Modifications; Waiver. . . . . . . . . . . . . 20
10.6 Severability . . . . . . . . . . . . . . . . . 20
10.7 Remedies Cumulative. . . . . . . . . . . . . . 20
10.8 Attorneys' Fees. . . . . . . . . . . . . . . . 20
10.9 Counterparts . . . . . . . . . . . . . . . . . 20
10.10 Further Assurances. . . . . . . . . . . . 20
10.11 Headings. . . . . . . . . . . . . . . . . 21
10.12 Public Announcements. . . . . . . . . . . 21
10.13 Confidentiality . . . . . . . . . . . . . 21
10.14 Certain Definitions . . . . . . . . . . . 21
10.15 Inconsistencies with Exhibits . . . . . . 23
-iii-
(Page 32 of 64 pages)<PAGE>
SCHEDULES AND EXHIBITS
SCHEDULE 4.1(e) ROYALTIES
SCHEDULE 4.1(f) PERMITS AND LICENSES
SCHEDULE 4.1(h) WATER RIGHTS
SCHEDULE 5.1(f) ATLAS CONVERTIBLE SECURITIES AND REGISTRATION RIGHTS
SCHEDULE 5.1(h) ATLAS ADVERSE CHANGES
EXHIBIT A-1 DESCRIPTION OF ACQUIRED CLAIMS, LOCATED CLAIMS AND
LEASED CLAIMS
EXHIBIT A-2 EXCHANGE PROPERTY
EXHIBIT B-1 REAL PROPERTY QUITCLAIM DEED
EXHIBIT B-2 ASSIGNMENT OF LEASES
EXHIBIT B-3 BILL OF SALE
EXHIBIT B-4 WATER RIGHTS QUITCLAIM DEED
EXHIBIT B-5 ASSUMPTION AGREEMENT
EXHIBIT C FORM OF OFFICER'S CERTIFICATE - INDEPENDENCE
EXHIBIT D REGISTRATION RIGHTS AGREEMENT
EXHIBIT E FORM OF OFFICER'S CERTIFICATE - ATLAS
EXHIBIT F OPINIONS OF COUDERT BROTHERS AND MORRISON & FOERSTER
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made and
entered into this twenty-fifth day of October, 1995, between
INDEPENDENCE MINING COMPANY INC., a Delaware corporation,
("Independence"), whose address is 5251 DTC Parkway, Suite 700,
Englewood, Colorado 80111 and ATLAS CORPORATION, a Delaware
corporation ("Atlas"), whose address is Suite 3150, 370 Seventeenth
Street, Denver, Colorado 80202.
RECITALS
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WHEREAS, Independence is the owner of the Doby George and
Maggie Summit properties located in Elko County, Nevada, as more
particularly described in Exhibit A attached hereto and incorporated
herein by reference; and
WHEREAS, Independence desires to sell and Atlas desires to
purchase all of Independence's right, title and interest in and to
said properties, including all mines and associated facilities,
permits, water rights, and rights-of-way owned or held by Independence
in connection therewith (the "Properties");
NOW, THEREFORE, in consideration of the mutual promises
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree
as follows:
ARTICLE I
PURCHASE OF INDEPENDENCE'S INTEREST IN THE PROPERTIES
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1.1 Transfer of Interests to Atlas. On the terms and
------------------------------
subject to the conditions set forth herein, Independence agrees to
deliver to Atlas at the closing provided for in Article II hereof (the
"Closing") (a) a Real Property Quitclaim Deed, (b) an Assignment of
Leases, (c) a Bill of Sale and (d) a Water Rights Quitclaim Deed
collectively conveying the Properties from Independence to Atlas, in
the forms attached hereto as Exhibit B, and certain other instruments
and documents as are set forth in Section 2.2(a).
1.2 Purchase Price. The purchase price (the "Purchase
--------------
Price") to be paid to Independence by Atlas pursuant to this Agreement
is 1,400,000 shares (the "Shares") of Atlas common stock, par value
$1.00 per share (the "Common Stock"), and Four Hundred Thousand and
No/100 Dollars ($400,000.00). On the terms and subject to the
conditions set forth herein, at the Closing Atlas agrees to pay the
Purchase Price to Independence and deliver certain other documents,
all as described in Section 2.2(b).
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ARTICLE II
CLOSING
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2.1 Closing. Upon the terms and subject to the conditions
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set forth in this Agreement, the Closing of the transactions provided
for in Article I hereof will take place at the offices of Davis,
Graham & Stubbs, L.L.C., in Denver, Colorado, on October 25, 1995, or
such other date as mutually agreed by the parties (the "Closing
Date").
2.2 Deliveries at Closing. At the Closing:
---------------------
(a) Independence will deliver to Atlas the following:
(i) An executed and acknowledged Real Property
Quitclaim Deed covering the Acquired Claims and the Located Claims (as
set forth in parts (ii) and (iii) of Exhibit A-1) in the form attached
hereto as Exhibit B-1;
(ii) An executed and acknowledged Assignment of
Leases covering the Leased Claims (as set forth in part (i) of
Exhibit A-1) in the form attached hereto as Exhibit B-2;
(iii) An executed and acknowledged Bill of Sale
covering any personal property associated with the Acquired Claims,
the Located Claims or the Leased Claims in the form attached hereto as
Exhibit B-3;
(iv) An executed and acknowledged Water Rights
Quitclaim Deed covering the Water Rights in the form attached hereto
as Exhibit B-4;
(v) Certificates of good standing for
Independence from the Secretary of State of the States of Delaware and
Nevada; and
(vi) An Officer's Certificate in the form attached
hereto as Exhibit C.
(b) Atlas will deliver to Independence the following:
(i) A certificate or certificates representing
the Shares, registered in Independence's name and bearing the
following legend:
The shares represented by this
Certificate have not been registered under the
Securities Act of 1933, as amended (the "Act"),
and are "restricted securities" as that term is
defined in Rule 144 under the Act and may not be
sold, transferred, assigned, pledged or
hypothecated except pursuant to an effective
registration statement or an opinion of counsel
reasonably satisfactory to Atlas Corporation to
the effect that registration under the Act is not
required. The shares are being
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acquired solely for the purpose of investment, and
not with a view to the distribution or sale of any
part thereof. The shares have been acquired
subject to the terms and conditions of that
certain Purchase and Sale Agreement between
Independence Mining Company Inc. and Atlas
Corporation dated October 25, 1995.
(ii) $400,000.00 in immediately available funds,
plus an amount of money (in immediately available funds) equal to the
federal and state claim holding and filing fees required to maintain
the Properties in good standing, prorated on a daily basis to the date
hereof, for the assessment year commencing September 1, 1995;
(iii) If the Closing occurs on or after November 4,
1995, $30,000.00 in immediately available funds in respect of
Independence's payment to Thomas E. and Frances Bilbao under a certain
Mining Lease dated November 4, 1983 as more fully described in
Exhibit A-1;
(iv) An assumption of obligations in the form of
the Assumption Agreement attached hereto as Exhibit B-5 as required by
Section 3.3;
(v) A registration rights agreement pertaining to
the Shares in the form of Exhibit D;
(vi) A certificate of good standing for Atlas from
the Secretary of State of the State of Delaware;
(vii) An Officer's Certificate in the form attached
hereto as Exhibit E; and
(viii) The opinions of Coudert Brothers and Morrison
& Foerster in the form of Exhibit F hereto.
ARTICLE III
OTHER AGREEMENTS OF INDEPENDENCE AND ATLAS
------------------------------------------
3.1 Information and Data. Upon Closing, Independence shall
--------------------
deliver to Atlas originals and copies of all records, data and
information in its possession relating to the Properties, including,
without limitation, title and environmental data, and all maps,
surveys, technical reports, drill logs, and all metallurgical,
geological, geophysical, geochemical, permitting and other technical
data pertaining to the Properties in its possession; provided,
however, that Independence may retain copies of any or all of such
data; and provided, further, that if any such data includes
information other than with respect to the Properties the data may be
excerpted so as to provide only the information with respect to the
Properties.
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3.2 Transfer of Permits. For a period of sixty days
-------------------
following Closing, Independence shall cooperate with Atlas to achieve,
to the extent reasonably possible, the assignment from Independence to
Atlas of any existing permits with respect to the Properties.
3.3 Assumption of Obligations. Upon Closing, Atlas shall
-------------------------
assume Independence's obligations in connection with the Properties as
set forth in the Assumption Agreement, including obligations arising
under any permits issued by any federal, state or local authority, and
reclamation obligations, and Atlas will execute an assumption of such
obligations in the form of Exhibit B-5.
3.4 NYSE Listing Requirements. At the time of Closing,
-------------------------
Atlas shall have complied with the requirements of the New York Stock
Exchange regarding the issuance by Atlas of the Shares, and the Shares
shall have been accepted for listing on such exchange.
3.5 Reasonable Best Efforts; Further Assurances. Subject
-------------------------------------------
to the terms and conditions herein provided, each of the parties
hereto agrees to use its reasonable best efforts to take, or cause to
be taken, all action, and to do, or cause to be done, all things
reasonably necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions
contemplated by this Agreement. Atlas and Independence will each use
their respective reasonable best efforts (without incurring any
extraordinary expense or payment to any third party in excess of
$2,500, or instituting litigation) to obtain consents of all third
parties and governmental bodies necessary to the consummation of the
transactions contemplated by this Agreement; provided, however, that
the foregoing expense limitation shall not apply to Atlas' costs in
acquiring any permits from Independence or to any action necessary or
advisable in connection with the issuance, listing or registration of
the Shares. As used herein, "Further Assurances" shall mean any
deeds, assignments, consents, powers of attorney or other documents
which may be reasonably required to transfer ownership of the
Properties to Atlas, to confirm such ownership or facilitate effective
recordation thereof, or to put Atlas in actual possession and
operating control of the Properties.
3.6 Access to Records Before Closing. Prior to the Closing
--------------------------------
Date, each of the parties agrees that it will give, or cause to be
given, to the other party and its representatives, during normal
business hours upon reasonable notice and at the other party's
expense, full and unrestricted access to its personnel, officers,
agents, employees, assets, properties, titles, contracts, books,
records, files and documents with respect to, in Independence's case,
the Properties, and in Atlas' case, Atlas (including financial, tax,
budget, projections, auditors' work papers and other information) and
to such party's personnel, as is reasonably necessary to allow such
other party to obtain such information as it shall desire, and to make
copies of all such materials. All materials copied pursuant hereto
shall be maintained in confidence and all such copies shall be
returned to the party providing such materials if the transactions
contemplated hereunder fail to occur.
3.7 Sales, Use, Transfer and Other Taxes. Any sales and
------------------------------------
use taxes and real property transfer taxes imposed on the transfer of
the Properties by Independence to Atlas shall be paid by Atlas. The
parties shall cooperate in obtaining any available
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exemptions from sales, use and transfer taxes. Prior to Closing,
Independence shall pay all expenses owed by it ordinarily paid in the
normal course of owning the Properties. All claim transfer fees
assessed by the United States, Department of the Interior, Bureau of
Land Management (the "BLM"), and all expenses of recording instruments
of conveyance covering the Properties shall be paid by Atlas.
3.8 BLM Exchange Property. Independence has entered into
---------------------
an exchange agreement with the BLM to obtain fee title to the property
on which certain unpatented mining claims held by Independence are
located (the "Exchange Property"). The Exchange Property is more
particularly described in Exhibit A-2.
Certain unpatented mining claims held by Independence and
comprising a portion of the Properties are located on and, in some
instances, extend across the exterior boundaries of the Exchange
Property (the "Exchange Claims"). The Exchange Claims are more
particularly described in Exhibit A-2.
The conveyance of fee title to the Exchange Property to
Atlas is not a condition to Closing and the parties understand and
agree that the consummation of the contemplated exchange with the BLM
may occur after the Closing or not at all. Independence is in no
manner obligated by this Agreement or otherwise to complete the
exchange and convey fee title to the Exchange Property to Atlas.
However, if Independence completes the contemplated exchange with the
BLM and is conveyed fee title to the Exchange Property, for no
additional consideration, Independence shall convey to Atlas all of
its right, title and interest in and to the Exchange Property and the
fractions of the Exchange Claims that remain on the public lands
adjacent to the Exchange Property without any representations and
warranties of title, whatsoever.
If Independence does not complete the contemplated exchange
with the BLM and/or is not conveyed fee title to the Exchange
Property, for any reason, including, without limitation, a
discretionary decision by Independence not to complete the exchange,
for no additional consideration, Independence shall convey to Atlas
all of its right, title and interest in and to the Exchange Claims.
Real property transfer taxes associated with the foregoing conveyance
to Atlas shall be paid by Atlas; all costs and expenses to complete
the contemplated exchange with the BLM shall be paid by Independence.
Notwithstanding anything in this Agreement that may appear to be to
the contrary, this Section 3.8 shall survive Closing until the
conveyance to Atlas of the Exchange Property and the fractions of the
Exchange Claims or the Exchange Claims, whichever is applicable.
Unless otherwise agreed by Independence and Atlas, if the contemplated
exchange with the BLM is not completed on or before September 30,
1998, Independence shall convey to Atlas the Exchange Claims on or
before October 31, 1998. Such conveyance will be made subject to the
same representations set forth in Section 4.1(g)(ii) hereof, which
representations shall survive for a period of 45 days from the date of
conveyance.
From the Closing through conveyance to Atlas of the Exchange
Property or the Exchange Claims, whichever is applicable, Independence
grants to Atlas non-exclusive access to and the non-exclusive right to
use and occupy the surface and subsurface of the
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Exchange Claims for all lawful and reasonable purposes, including,
without limitation, properly permitted exploration, development,
mining, mineral processing or related activities. During the period
from Closing through the conveyance to Atlas of the Exchange Property
or the Exchange Claims, Atlas agrees to pay all claim rental and
maintenance fees required to be paid under federal law in lieu of
performance of assessment work in order to maintain the Exchange
Claims and to make such filings and record such documents as are
required to maintain those claims as valid (including, without
limitation, timely and properly making filings required under FLPMA,
as defined below). Atlas agrees to indemnify, defend and hold
Independence harmless from and against any and all Losses, as defined
in Section 6.1 below, incurred or sustained by Independence in or as a
result of or in any way related to Atlas' activities on, in or in the
vicinity of the Exchange Claims.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
OF INDEPENDENCE
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4.1 Representations and Warranties of Independence.
----------------------------------------------
Independence hereby represents and warrants to Atlas as of the date
hereof as follows, and this Agreement is made in reliance on the
following representations and warranties, each of which is deemed to
be a separate representation and warranty:
(a) Organization and Standing. Independence is a
-------------------------
corporation duly incorporated, validly existing, and in good standing
under the laws of the State of Delaware.
(b) Qualification. Independence is duly qualified to
-------------
do business in the State of Nevada and each additional jurisdiction in
which the nature of property owned or leased or the nature of the
business conducted by it requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on
the business, operation, or financial condition of Independence.
(c) Corporate Power. Independence has the requisite
---------------
corporate power and authority (i) to enter into this Agreement and all
other agreements contemplated hereby, and (ii) to carry out and
perform its obligations under the terms and provisions of this
Agreement and all agreements contemplated hereby.
(d) Authorization. All corporate action on the part
-------------
of Independence and its officers, directors and shareholders necessary
for the execution, delivery, and performance of this Agreement and all
other agreements of Independence contemplated hereby, has been taken.
This Agreement and all agreements and instruments contemplated hereby
to which Independence is a party, when executed and delivered by the
parties thereto, will be legal, valid, and binding obligations of
Independence enforceable against Independence in accordance with their
respective terms. The execution, delivery and performance of this
Agreement by Independence will not violate any provision of law; any
order of any court or other agency of government; or any provision of
any indenture, agreement or other instrument to which Independence is
a party or by which its properties or
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assets are bound; or be in conflict with, result in a breach of or
constitute (with due notice and lapse of time) a default under any
such indenture, agreement or other instrument, in each case except for
such matters as would not have a material adverse effect on the
Properties taken as a whole. There is no law, rule or regulation, nor
is there any judgment, decree or order of any court or governmental
authority binding on Independence which would be contravened by the
execution, delivery, performance or enforcement of this Agreement or
any instrument required hereunder, except for such matters as would
not have a material adverse effect on the Properties taken as a whole.
Notwithstanding the foregoing, no representation is made as to (i) the
remedy of specific performance or other equitable remedies for the
enforcement of this Agreement or any other agreement contemplated
hereby or (ii) rights to indemnity under this Agreement for securities
law liability. Additionally, this representation is limited by
applicable bankruptcy, insolvency, moratorium and other similar laws
affecting generally the rights of creditors and secured parties.
(e) Royalties. Except as set forth on
---------
Schedule 4.1(e), to Independence's Knowledge there are no royalties or
other burdens on production affecting the Properties.
(f) Permits and Licenses. To Independence's
--------------------
Knowledge, Independence has obtained all permits, licenses, approvals,
authorizations and qualifications from all federal, state and local
authorities required for it to carry on its operations at or on the
Properties, except for such matters as would not have a material
adverse effect on the Properties taken as a whole. A list of all
currently active material permits, licenses, consents, approvals,
authorizations, and qualifications obtained by Independence in
connection with its operations on the Properties as of the date of
this Agreement, true and correct copies of each of which have been
made available to Atlas, is set forth on Schedule 4.1(f). To
Independence's Knowledge, its ownership and operation of the
Properties is not in violation of and has resulted in no liability
(other than liability for compliance with existing permits and laws,
including but not limited to performance of reclamation) under any
statute, rule or regulation of any governmental authority applicable
to the Properties, other than violations or liability, if any, which
have not resulted and would not be reasonably expected to result in
any material loss or liability.
(g) Title to Claims. Except as disclosed in
---------------
Exhibit A, to Independence's Knowledge:
(i) Leased Claims. Each of the leases set forth
-------------
in Exhibit A-1 (the "Leases") is in full force and effect in
accordance with its terms, free from material default by Independence;
and Independence has received no written or other notice from any
lessor under any Lease asserting a default by Independence in the
performance of the terms of any Lease. As to the Leased Claims,
subject to the paramount title of the United States, to Independence's
Knowledge: (A) Independence is in exclusive possession thereof, free
and clear of all liens, encumbrances or other burdens on production
(except as set forth on Schedule 4.1(e)) or claims of third parties
arising by, through or under Independence; (B) since Independence
acquired a leasehold interest in the unpatented Leased Claims,
assessment work, intended in good faith to satisfy the requirements of
state and
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federal laws and regulations and generally regarded in the mining
industry as sufficient, for all assessment years up to and including
the assessment year ending September 1, 1992, was timely performed on
or for the benefit of those Leased Claims and affidavits evidencing
such work were timely recorded; (C) since Independence acquired a
leasehold interest in the unpatented Leased Claims, claim rental and
maintenance fees required to be paid under federal law in lieu of the
performance of assessment work, in order to maintain those Leased
Claims commencing with the assessment year ending on September 1, 1993
and through the assessment year ending on September 1, 1996, have been
timely and properly paid, and affidavits or other notices evidencing
such payments and required under federal or state laws or regulations
have been timely and properly filed or recorded; (D) since
Independence acquired a leasehold interest in the unpatented Leased
Claims, all filings with the BLM with respect to those Leased Claims
which are required under the Federal Land Policy and Management Act of
1976, as amended ("FLPMA") have been timely and properly made, and (E)
there are no actions or administrative or other proceedings pending or
threatened against or affecting the Leased Claims. Nothing herein
shall be deemed a representation that any of the unpatented Leased
Claims contains a discovery of valuable minerals.
(ii) Acquired Claims. As to the Acquired Claims,
---------------
subject to the paramount title of the United States, to Independence's
Knowledge: (A) Independence is in exclusive possession thereof; free
and clear of all liens, encumbrances or other burdens on production
(except as set forth on Schedule 4.1(e)) or claims of third parties
arising by, through or under Independence; (B) since Independence
acquired the Acquired Claims, assessment work, intended in good faith
to satisfy the requirements of state and federal laws and regulations
and generally regarded in the mining industry as sufficient, for all
assessment years up to and including the assessment year ending
September 1, 1992, was timely performed on or for the benefit of the
Acquired Claims and affidavits evidencing such work were timely
recorded; (C) since Independence acquired the Acquired Claims, claim
rental and maintenance fees required to be paid under federal law in
lieu of the performance of assessment work, in order to maintain the
Acquired Claims commencing with the assessment year ending on
September 1, 1993 and through the assessment year ending on
September 1, 1996, have been timely and properly paid, and affidavits
or other notices evidencing such payments and required under federal
or state laws or regulations have been timely and properly filed or
recorded; (D) since Independence acquired the Acquired Claims, all
filings with the BLM with respect to the Acquired Claims which are
required under the FLPMA have been timely and properly made, and (E)
there are no actions or administrative or other proceedings pending or
threatened against or affecting the Acquired Claims. Nothing herein
shall be deemed a representation that any of the Acquired Claims
contains a discovery of valuable minerals.
(iii) Located Claims. As to the Located Claims, to
--------------
Independence's Knowledge: (A) Independence is in exclusive possession
thereof; free and clear of all liens, encumbrances or other burdens on
production (except as set forth on Schedule 4.1(e)) or claims of third
parties arising by, through or under Independence; (B) the Located
Claims were located, staked, filed and recorded on available public
domain land in compliance with all applicable state and federal laws
and regulations; (C) assessment work, intended in good faith to
satisfy the requirements of state and federal laws and regulations
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and generally regarded in the mining industry as sufficient, for all
assessment years up to and including the assessment year ending
September 1, 1992, was timely performed on or for the benefit of the
Located Claims and affidavits evidencing such work were timely
recorded; (D) claim rental and maintenance fees required to be paid
under federal law in lieu of the performance of assessment work, in
order to maintain the Located Claims commencing with the assessment
year ending on September 1, 1993 and through the assessment year
ending on September 1, 1996, have been timely and properly paid, and
affidavits or other notices evidencing such payments and required
under federal or state laws or regulations have been timely and
properly filed or recorded; (E) all filings with the BLM with respect
to the Located Claims which are required under the FLPMA have been
timely and properly made, and (F) there are no actions or
administrative or other proceedings pending or to the knowledge of
Independence threatened against or affecting the Located Claims.
Nothing herein shall be deemed a representation that any of the
Located Claims contains a discovery of valuable minerals.
(iv) Claim Remonumentation. With respect to each
---------------------
of the unpatented mining claims comprising a portion of the
Properties, Independence represents that they have been remonumented
as necessary, and that evidence of such remonumentation has been
timely and properly recorded, all in compliance with the provisions of
N.R.S. Section 517.030.
(h) Water Rights. Set forth on Schedule 4.1(h) is a
------------
list that, to Independence's Knowledge, correctly and completely
describes all water rights, whether surface, underground, direct flow,
reservoir, storage, or otherwise held or utilized by Independence in
connection with its operations at the Properties.
(i) Environmental Compliance. To the Knowledge of
------------------------
Independence, there are no conditions or activities at or on the
Properties which would result in a violation of or liability under
applicable Environmental Laws, except for such matters as would not
have a material adverse effect on the Properties taken as a whole. To
the Knowledge of Independence, there have been issued under applicable
Environmental Laws no notices of violation or consent orders to which
Independence (with respect to its operations at the Properties) or the
Properties are subject, except for such matters as would not have a
material adverse effect on the Properties taken as a whole. There are
no pending or, to the Knowledge of Independence, threatened
proceedings by or before any court or other governmental authority
against Independence with respect to its operation or ownership of the
Properties alleged to be, or have been, in violation of, under, any
Environmental Law, except for such matters as would not have a
material adverse effect on the Properties taken as a whole.
(j) Material Contracts and Commitments. Independence
----------------------------------
has performed all material obligations required to be performed by it
under all contracts and commitments affecting the Properties to which
it is a party, a complete list of which is set forth on Exhibit A-1,
Schedule 4.1(e), Schedule 4.1(f) and Schedule 4.1(h), and true and
correct copies of each of which have been made available to Atlas, and
is not in default, and will not be in default as a result of the
consummation of the transactions contemplated
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herein, under any contract, agreement, mortgage, indenture, loan
agreement, lease, license, judgment, injunction, decree, order,
determination, award, restriction, or other instrument to which it is
a party in connection with the Properties, except for such matters as
would not have a material adverse effect on the Properties taken as a
whole.
(k) Legality. To the Knowledge of Independence,
--------
Independence's operations on the Properties have been conducted in
material compliance with applicable laws, rules, ordinances and other
governmental regulations, including, without limitation, those
relating to zoning, condemnation, mining, reclamation, environmental
matters, equal employment, and federal, state, or local health and
safety laws, rules, and regulations, except for such violations as
would not materially adversely affect the Properties.
(l) Litigation and Claims. To the Knowledge of
---------------------
Independence, other than matters affecting the U.S. mining industry as
a whole, there are no actions, suits or proceedings pending or
threatened against or affecting the Properties, including any actions,
suits, or proceedings being prosecuted by any federal, state, or local
department, commission, board, bureau, agency, or instrumentality. To
the Knowledge of Independence, Independence is not in any material
default with respect to, or subject to, any order, writ, injunction,
judgment or decree of any court or any federal, state or local
department, commission, board, bureau, agency or instrumentality which
relates to the Properties.
(m) Consents. Independence has obtained all consents,
--------
approvals, authorizations, declarations, or filings required by any
federal, state, local, or other authority, or any lenders, lessors,
creditors, and other third parties in connection with the valid
execution, delivery, and performance by it of this Agreement and the
consummation by it of the transactions contemplated hereby, except
such consents which are customarily obtained following an assignment
or conveyance of mining properties as contemplated hereby.
(n) Taxes. Independence, so long as it has been in
-----
possession of the Properties, has duly and timely filed, in correct
form, all federal, state and local income, excise, property and other
tax returns, reports or statements required to be filed by it with
respect to the Properties and has fully paid all taxes, fees,
assessments, penalties, and interest due in respect of any such
returns, reports, or statements, except for such matters as would not
have a material adverse effect on the Properties taken as a whole.
(o) Brokerage or Finder's Fee. All negotiations
-------------------------
relative to this Agreement and the transactions contemplated hereby
have been carried on by Independence in such manner as not to give
rise to any valid claim against Atlas for a brokerage commission,
finder's fee, or other fee or commission arising by reason of the
transactions contemplated by this Agreement.
(p) Investment Intent. Independence is acquiring the
-----------------
Shares solely for the purpose of investment, and not with a view to
the distribution or sale of any part thereof. Independence
acknowledges that the Shares have not been registered under the
Securities Act or any state securities law, and are being issued and
sold in reliance on
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exemptions from such registration requirements that are available only
if the Shares are not being offered to the public and are being
acquired for investment and not with a present view to their
distribution or sale.
(q) Private Placement Representations.
---------------------------------
(i) (A) Independence can bear the economic risk
of losing its entire investment in the Shares and can afford to hold
the Shares for an indefinite period of time; and
(B) Independence is an Accredited Investor
as defined in Rule 501(a) of Regulation D of the Securities Act.
(ii) Independence has received, read and reviewed
and is familiar with Atlas's Form 10-K for the year ended June 30,
1995, and its Annual Report to Stockholders for 1995 and its Form 8-K
dated October 4, 1995 (collectively, the "Reports"), and confirms that
all requested documents, records and books pertaining to its
investment in Atlas have been made available or delivered to it.
(iii) Independence has had the opportunity to ask
questions of, and receive answers from, officers of Atlas concerning
its investment in the Shares and additional information necessary to
verify the accuracy of the information contained in the Reports.
(r) Disclaimer of Warranties. EXCEPT AS PROVIDED IN
------------------------
THIS AGREEMENT, INDEPENDENCE MAKES NO WARRANTIES, EXPRESS OR IMPLIED,
WITH RESPECT TO THE PROPERTIES AS TO TITLE, OWNERSHIP, USE,
POSSESSION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, MINERAL
QUANTITY, MINERAL RESERVES, MINERAL RESOURCES, ORE GRADES,
RECOVERABILITY, VALUE, MINEABILITY, CONDITION, OPERATION, DESIGN,
CAPACITY OR OTHERWISE.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF ATLAS
---------------------------------------
5.1 Representations and Warranties of Atlas. Atlas hereby
---------------------------------------
represents and warrants to Independence as of the date hereof as
follows, and this Agreement is made in reliance on the following
representations and warranties, each of which is deemed to be a
separate representation and warranty:
(a) Organization and Standing. Atlas is a corporation
-------------------------
duly incorporated, validly existing, and in good standing under the
laws of the State of Delaware.
(b) Qualification. Atlas is duly qualified to do
-------------
business in each jurisdiction in which the nature of property owned or
leased or the nature of the business
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conducted by it requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on the
business, operation, or financial condition of Atlas.
(c) Corporate Power. Atlas has the requisite
---------------
corporate power and authority (i) to enter into this Agreement and all
other agreements contemplated hereby, and (ii) to carry out and
perform its obligations under the terms and provisions of this
Agreement and all agreements contemplated hereby.
(d) Authorization. The requisite corporate action on
-------------
the part of Atlas necessary for the execution, delivery, and
performance of this Agreement and all other agreements of Atlas
contemplated hereby has been taken. This Agreement and all agreements
and instruments contemplated hereby to which Atlas is a party, when
executed and delivered by the parties thereto, will be the legal,
valid, and binding obligations of Atlas enforceable against Atlas in
accordance with their respective terms. The execution, delivery, and
performance of this Agreement by Atlas will not violate any provision
of law; any order of any court or other agency of government; or any
provision of any indenture, agreement or other instrument to which
Atlas is a party or by which its properties or assets are bound; or be
in conflict with, result in a breach of or constitute (with due notice
and lapse of time) a default under any such indenture, agreement or
other instrument. There is no law, rule or regulation, nor is there
any judgment, decree or order of any court or governmental authority
binding on Atlas which would be contravened by the execution, delivery
performance or enforcement of this Agreement or any instrument
required hereunder, except for such matters as would not, individually
or in the aggregate, have a material adverse effect on the business,
assets, liabilities (actual or contingent), results of operations,
prospects, financial or other condition or operations of Atlas.
Notwithstanding the foregoing, no representation is made as to (i) the
remedy of specific performance or other equitable remedies for the
enforcement of this Agreement or any other agreement contemplated
hereby or (ii) rights to indemnity under this Agreement for securities
law liability. Additionally, this representation is limited by
applicable bankruptcy, insolvency, moratorium and other similar laws
affecting generally the rights of creditors and secured parties.
(e) Brokerage or Finder's Fee. All negotiations
-------------------------
relative to this Agreement and the transactions contemplated hereby
have been carried on by Atlas in such manner as not to give rise to
any valid claim against Independence for a brokerage commission,
finder's fee or other fee or commission arising by reason of the
transactions contemplated by this Agreement.
(f) The Shares. On the date of this Agreement, the
----------
authorized capital stock of Atlas consists of 50,000,000 shares of
Common Stock, 18,634,743 shares of which are issued and outstanding,
none of which are held in Atlas's treasury, and 1,000,000 shares of
preferred stock, par value $1.00 per share. The preferred stock is
issuable in series, with designations, rights and preferences to be
fixed by Atlas' Board of Directors. The Board of Directors has
established a series of 150,000 shares of Series Preferred Stock
designates Series A Junior Participating Preferred Stock, no shares of
which have been issued. Except as set forth on Schedule 5.1(f), Atlas
does not have outstanding any stock or securities convertible or
exchangeable for any shares of its capital stock. The Shares have
-12-
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been duly authorized for issuance and reserved therefor and, when
issued, all of the Shares shall be validly issued, fully paid and
nonassessable shares of capital stock of Atlas, free and clear of all
liens, charges and encumbrances. There does not exist any preemptive
right in favor of any person with respect to the Shares. Except as
set forth on Schedule 5.1(f), there does not exist any agreement by
Atlas to register any stock or securities of Atlas for sale under the
Securities Act.
(g) Financial Statements and Reports.
--------------------------------
(i) Since July 1, 1994, and through the Closing
Date, Atlas has filed all required forms, reports and documents with
the U.S. Securities and Exchange Commission (the "SEC") required to be
filed by it pursuant to the federal securities laws and the SEC rules
and regulations thereunder, all of which have complied as of their
respective filing dates and, if applicable, effective dates in all
material respects with all applicable requirements of the Securities
Act of 1933, as amended (the "Securities Act") and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
promulgated thereunder. None of such forms, reports or documents,
including, without limitation, any financial statements or schedules
included therein, at the time filed or at the time effective,
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(ii) As of the Closing Date, the audited
consolidated balance sheets and the related consolidated statements of
net earnings and of changes in financial position or cash flows, as
the case may be (including the related notes thereto), of Atlas
included in Atlas's Annual Reports on Form 10-K for the fiscal years
or periods ended June 30, 1995 and 1994, respectively, present fairly
the consolidated financial position of Atlas as of their respective
dates, and the results of consolidated operations and changes in
consolidated financial position or cash flows, as the case may be, for
the periods presented therein, all in conformity with generally
accepted accounting principles consistently applied, except as
otherwise noted therein.
(iii) As of the Closing Date, except as and to the
extent set forth on the consolidated balance sheet of Atlas as at
June 30, 1995, including the notes thereto, neither Atlas nor any of
its subsidiaries has any liabilities or obligations of any nature
(whether accrued, absolute, contingent or otherwise) which would be
required to be reflected on a balance sheet, or in the notes thereto,
prepared in accordance with generally accepted accounting principles,
except for liabilities or obligations incurred in the ordinary course
of business since June 30, 1995 which would not, individually or in
the aggregate, have a material adverse effect on the business, assets,
liabilities (actual or contingent), results of operations, prospects,
financial or other condition or operations of Atlas.
(h) Absence of Certain Changes. Except as set forth
--------------------------
on Section 5.1(h), since June 30, 1995 and through the Closing Date,
there has not been:
-13-
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(i) any material adverse change, however caused,
in the business, assets, liabilities (actual or contingent), results
of operations, prospects, financial or other condition or operations
of Atlas;
(ii) any change in Atlas's authorized or actual
equity capitalization;
(iii) any damage, destruction or casualty loss,
materially and adversely affecting the business, assets, liabilities
(actual or contingent), results of operations, prospects, or financial
or other condition or operations of Atlas, whether or not insured;
(iv) any incurrence of long-term debt or any other
material liability or obligation, actual or contingent, other than
current liabilities incurred in the ordinary and usual course of
business consistent with past practices;
(v) entry into, or agreement or commitment to
enter into, any agreement, commitment or transaction (including,
without limitation, any borrowing, capital expenditure or financing or
any amendment, modification or termination of any existing agreement,
commitment or transaction) other than in the ordinary and usual course
of business consistent with past practices;
(vi) acquisition or disposition of, or entry into
any agreement with respect to the acquisition or disposition of a
significant amount of assets; or
(vii) any agreement with respect to any of the
foregoing.
(i) Disclaimer of Warranties. EXCEPT AS PROVIDED IN
------------------------
THIS AGREEMENT, ATLAS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH
RESPECT TO THE SHARES.
(j) Investigation. Atlas has conducted its own
-------------
investigation and made its own evaluation of the Properties, and is
relying solely on such investigation and the specific representations
of Independence in Article IV hereof in determining to proceed with
the transaction contemplated by this Agreement. The scope of Atlas'
investigation was determined by Atlas in its sole discretion. From
its business, Atlas is familiar with properties and property
acquisitions similar to the Properties and the transactions
contemplated hereby.
ARTICLE VI
INDEMNIFICATION
---------------
6.1 Indemnification of Independence. Except as provided in
-------------------------------
Section 6.3, Atlas hereby agrees to indemnify, defend and hold
Independence, its successors and assigns, harmless from and against
any and all liabilities, claims, damages, losses, or expenses
-14-
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(including interest and penalties, reasonable attorneys' fees, and
other reasonable expenses of defending any actions relating thereto)
(collectively, "Losses") incurred or sustained by Independence in or
as a result of or arising out of any breach or inaccuracy of the
specific representations and warranties made by Atlas herein, or the
breach by Atlas of any of the agreements, covenants, conditions, and
obligations of Atlas contained in this Agreement, including but not
limited to those set forth in the Assumption of Obligations. In
addition, Atlas fully releases and discharges Independence and agrees
to save, defend and indemnify Independence against and hold it
harmless from any and all Losses directly or indirectly relating to
(i) any release or threat of release of any Hazardous Materials (as
hereinafter defined) in, on, under or from any of the Properties
whenever occurring or (ii) any violation of any Environmental Law (as
hereinafter defined) relating to the Properties whenever occurring.
6.2 Indemnification of Atlas. Except as provided in
------------------------
Section 6.3, Independence hereby agrees to indemnify, defend and hold
Atlas, its successors and assigns, harmless from and against any and
all Losses incurred or sustained by Atlas in or as a result of or
arising out of (a) any breach or inaccuracy of the specific
representations and warranties made by Independence in (i)
Sections 4.1(a), 4.1(b), 4.1(c), 4.1(d), 4.1(o), 4.1(p) and 4.1(q)
hereof, and (ii) Section 4.1(g) hereof, and (b) the breach by
Independence of any of the post-Closing agreements, covenants and
obligations of Independence contained in this Agreement.
6.3 Notification; Defense of Third-Party Claims. An
-------------------------------------------
indemnified person or entity shall give written notice to the
indemnifying person or entity promptly of any claim, suit, action, the
commencement of any proceeding or demand of which such indemnified
person or entity has received written notice from a third party (that
is, a party other than a party to this Agreement) and as to which such
indemnified person or entity believes it may be entitled to
indemnification or contribution hereunder or under this Agreement
(provided, that failure to give such notice which does not materially
disadvantage the indemnifying person or entity shall not relieve the
indemnifying person or entity from liability hereunder). The
indemnifying person or entity will not settle or compromise any such
pending claim, action or suit, without (i) the prior written consent
of the indemnified person or entity, which consent shall not be
unreasonably withheld, and (ii) obtaining a release of the indemnified
person or entity from all liability in respect thereof. The
indemnifying person or entity shall have the right to participate in
or assume and direct the defense at its own expense against any such
claim, suit or demand, in its name or in the name of the indemnified
person, as the case may be, and with counsel selected by the
indemnifying person; provided, that if (i) such claim, suit or demand
seeks an order, injunction or other equitable relief against the
indemnified person or entity or (ii) the indemnified person or entity
shall have reasonably concluded that there is a substantial conflict
of interest between the indemnifying person or entity and the indemni-
fied person or entity in the conduct of the defense of such claim,
suit or demand, then the indemnified party may employ separate counsel
and participate in and direct the defense of such claim, suit or
demand to the extent necessary to protect its interest and the
indemnifying person or entity will pay the reasonable fees and
disbursements of such separate counsel; provided, however, that the
indemnifying person or entity shall not be responsible for the fees
and disbursements of more than one separate counsel for all
-15-
(Page 48 of 64 pages)<PAGE>
indemnified persons or entities in any jurisdiction or in any single
proceeding. Except as provided in the preceding sentence, after
notice from the indemnifying party of its election to assume the
defense thereof, the indemnifying person or entity shall not be liable
to the indemnified party for any legal or other expense incurred by
the indemnified party in connection with such claim. Such assumed
defense shall be conducted expeditiously (but with regard to obtaining
the most favorable outcome reasonably likely under the circumstances,
taking into account costs) and the indemnified person or entity shall
be advised promptly of all significant developments. The indemnified
person or entity shall have the right to participate fully in the
defense of any claim, suit or demand so assumed, with separate counsel
selected by it and at its own expense. The indemnified person or
entity shall cooperate with the indemnifying person or entity, and
keep the indemnifying person or entity reasonably informed, in its
participation or defense of any such claim, suit or demand.
6.4 Notice; Defense of Non-Third-Party Claims. An
-----------------------------------------
indemnified person or entity shall give written notice to an
indemnifying person or entity promptly of any other claim it may have
for indemnification under this Article 6; provided, that failure to
give such notice which does not materially disadvantage the
indemnifying person or entity shall not relieve the indemnifying
person or entity from liability hereunder. No indemnified person or
entity shall be entitled to make any claim for indemnification under
this Article 6 with respect to any breach of any particular
representation or warranty, after the date on which such representa-
tion and warranty ceases to survive pursuant to Article 9; provided,
--------
however, that, if prior to the close of business on the date any
- -------
representation or warranty ceases to survive, the indemnifying party
shall have received written notification of a claim for indemnity
hereunder containing the basis of any such claim and a brief statement
of the relevant facts to the extent known, and such claim shall not
have been finally resolved or disposed of on that date, such claim
shall continue as a basis for indemnity until finally resolved or
disposed of.
6.5 Threshold. No claim may be made for indemnification
---------
pursuant to this Article 6 with respect to any individual item of
liability or damage arising out of the breach or inaccuracy of any
representation or warranty unless such item or any series of items
arising out of the related or similar facts exceeds $1,000 and unless
and until the aggregate of all such liabilities and damages shall
exceed $50,000, in which case the indemnifying party shall then be
liable for all Losses, including the original $50,000.
6.6 Affiliate Indemnitees. Rights of indemnity (or rights
---------------------
to be held harmless) created in this Agreement stated as in favor of
either of the parties hereto shall also be in favor of the officers
and directors of each respective party and its Affiliates (as
hereinafter defined).
6.7 Reliance Upon Representations and Warranties. Unless
--------------------------------------------
any officer or other managerial personnel of any of the parties has
actual Knowledge or notice of any facts or circumstances which would
contravene any of the representations, warranties and covenants set
forth herein, the parties hereto shall be entitled to rely upon the
representations, warranties, and covenants set forth herein. Any
provision herein to the contrary notwithstanding, neither party shall
have any liability or obligation to the other for
-16-
(Page 49 of 64 pages)<PAGE>
any liability, claim, damage, loss or expense arising out of any fact,
inaccuracy or breach concerning any representation or warranty, if the
fact, inaccuracy or breach was actually known on the date hereof by an
officer or managerial employee of the party in whose favor the
representation or warranty runs.
ARTICLE VII
CONDITIONS PRECEDENT TO CLOSING
-------------------------------
7.1 Mutual Conditions. The respective obligations of each
-----------------
party to be bound by the terms and provisions of this Agreement shall
be subject to the fulfillment at or prior to Closing of the following
condition:
(a) Litigation. As of the Closing Date, no claim,
----------
litigation, proceeding, order, investigation, or inquiry shall be
pending against a party or threatened to enjoin or prevent the
consummation of the transactions contemplated by this Agreement.
7.2 Conditions to Independence's Obligations. The
----------------------------------------
obligation of Independence to be bound by the terms and provisions of
this Agreement and to consummate the transactions contemplated hereby
shall be subject to the fulfillment at or prior to Closing of the
following conditions, unless such performance and compliance shall
have been waived in writing by Independence:
(a) Representations and Warranties True. All
-----------------------------------
representations and warranties of Atlas contained in Article V shall
be true on and as of the Closing Date with the same force and effect
as though made on and as of such date.
(b) No Material Event. No casualty, claim, or other
-----------------
event, fact, or condition shall have occurred which could materially
adversely affect Atlas.
(c) Consents and Waivers. At or prior to Closing, the
--------------------
parties hereto shall have obtained all consents and waivers to be
obtained by it necessary for the consummation of the transactions
contemplated by this Agreement.
(d) Performance of Obligations. At or prior to
--------------------------
Closing, Atlas shall have performed all of the obligations to be
performed by it under this Agreement prior to Closing, and under any
exhibit, schedule, list, agreement, or other instrument relating
hereto.
7.3 Conditions to Atlas' Obligations. The obligation of
--------------------------------
Atlas to be bound by the terms and provisions of this Agreement and to
consummate the transactions contemplated hereby shall be subject to
the fulfillment at or prior to Closing of the following conditions,
unless such performance and compliance shall have been waived in
writing by Atlas:
-17-
(Page 50 of 64 pages)<PAGE>
(a) Representations and Warranties True. All
-----------------------------------
representations and warranties of Independence contained in Article IV
shall be true on and as of the Closing Date with the same force and
effect as though made on and as of such date.
(b) No Material Event. No casualty, claim, or other
-----------------
event, fact, or condition shall have occurred which could materially
adversely affect the Properties.
(c) Consents and Waivers. At or prior to Closing,
--------------------
Independence shall have obtained all consents and waivers to be
obtained by it necessary for the consummation of the transactions
contemplated by this Agreement.
(d) Performance of Obligations. At or prior to
--------------------------
Closing, Independence shall have performed all of the obligations to
be performed by it under this Agreement prior to Closing, and under
any exhibit, schedule, list, agreement, or other instrument relating
hereto.
ARTICLE VIII
[intentionally omitted]
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
9.1 Survival. All statements, representations, warranties,
--------
indemnities, covenants and agreements made by Atlas shall survive the
Closing Date for a period of twenty-four months. Except for the
representations of Independence set forth in Sections 4.1(a), 4.1(b),
4.1(c), 4.1(d), 4.1(o), 4.1(p), 4.1(q) and 4.1(r), and the agreement
of Independence set forth in Section 6.2(a)(i), which shall survive
the Closing for a period of twenty-four months, and for the
representations of Independence set forth in Section 4.1(g) and the
agreement of Independence set forth in Section 6.2(a)(ii), which shall
survive the Closing Date for a period of forty-five days, the
statements, representations, warranties, covenants and agreements made
by Independence herein shall not survive the Closing Date. The
foregoing limitations shall not apply to any right of action based on
the parties' obligations set forth in the Deed, the Assignment, the
Bill of Sale or the Assumption Agreement, and in the second sentence
of Section 6.1, or on the fraud, bad faith or intentional
misrepresentation of any party hereto; any such right shall survive
the Closing Date until the expiration of the applicable statute of
limitations.
ARTICLE X
GENERAL PROVISIONS
------------------
10.1 Notices. Any notice or communication hereunder shall
-------
be in writing, and shall be mailed by registered or certified mail,
return receipt requested, or otherwise sent
-18-
(Page 51 of 64 pages)<PAGE>
by facsimile or other similar form of rapid transmission, confirmed by
mailing (in the manner stated above) at substantially the same time as
such rapid transmission, or personally delivered to the receiving
party or an officer thereof. If notice is given by registered or
certified mail, it shall be deemed to have been given and received
when deposited in the United States mail, return receipt requested,
properly addressed, with postage prepaid; and if given otherwise than
by registered or certified mail, it shall be deemed to have been given
when delivered to and received by the party to whom it is addressed at
the time received. The addresses of the parties for the purposes of
this Section are as follows:
Independence Mining Company Inc.
5251 DTC Parkway, Suite 700
Englewood, Colorado 80111
Attention: Robert W. Micsak
Vice President
Telecopy: (303) 889-0707
with a copy to:
Davis, Graham & Stubbs, L.L.C.
370 Seventeenth Street
Suite 4700
Denver, Colorado 80202
Telecopy: (303) 893-1379
Attention: Ronald R. Levine, II
Atlas Corporation
370 Seventeenth Street
Suite 3150
Denver, Colorado 80202
Attention: Gregg B. Shafter
Vice President
Telecopy: (303) 892-8808
with a copy to:
Morrison & Foerster
370 Seventeenth Street, Suite 5200
Denver, Colorado 80202
Telecopy: (303) 592-1510
Attention: Randy Hubbard
Any party hereto, by written notice to the other party, may change the
address for notices to be sent to it.
10.2 Governing Law. This Agreement, and the rights and
-------------
liabilities of the parties hereunder, shall be governed by and
construed in accordance with the laws of the
-19-
(Page 52 of 64 pages)<PAGE>
State of Colorado governing contracts to be performed wholly within
Colorado, without regard to laws that might govern under principles of
conflicts of laws applicable thereto.
10.3 Parties in Interest; Assignment. All of the terms and
-------------------------------
provisions of this Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective parties hereto and
their successors and permitted assigns, whether hereinabove so
expressed or not. The rights, powers, privileges, and interests
hereunder shall be assignable by either party, except as specifically
limited by this Agreement.
10.4 Entire Agreement. This Agreement contains the entire
----------------
agreement and understanding of the parties hereto and supersedes all
prior written or oral agreements and understanding between them
concerning or relating to the subject matter contained herein. There
are no representations, agreements, arrangements, or understandings,
oral or written, between the parties hereto relating to the subject
matter contained in this Agreement which are not fully expressed
herein.
10.5 Modifications; Waiver. Any amendment, change or
---------------------
modification of this Agreement shall be void unless in writing and
signed by all parties hereto. No failure or delay by any party hereto
in exercising any right, power or privilege hereunder (and no course
of dealing between or among any of the parties) shall operate as a
waiver of any such right, power or privilege. No waiver of any
default on any one occasion shall constitute a waiver of any
subsequent or other default. No single or partial exercise of any
such right, power or privilege shall preclude the further or full
exercise thereof.
10.6 Severability. In the event that any one or more of the
------------
provisions contained in this Agreement or in any other instrument or
agreement contemplated hereby shall, for any reason, be held to be
invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision
of this Agreement or any such other instrument or agreement.
10.7 Remedies Cumulative. The remedies of the parties under
-------------------
this Agreement are cumulative and shall not exclude any other remedies
to which any party may be lawfully entitled.
10.8 Attorneys' Fees. In the event of any controversy,
---------------
claim, or dispute between the parties hereto, arising out of or
relating to this Agreement or the breach thereof, the prevailing party
shall be entitled to recover from the losing party reasonable expenses
and attorneys' fees.
10.9 Counterparts. This Agreement may be executed in one or
------------
more counterparts, each of which shall for all purposes be deemed to
be an original and all of which shall constitute the same instrument.
10.10 Further Assurances. At the request of either
------------------
Independence or Atlas, the parties shall execute and deliver any
further instruments, agreements, documents or other papers and take
such other action as may be reasonably requested by the other party to
effect
-20-
(Page 53 of 64 pages)<PAGE>
the purposes of this Agreement and the transactions contemplated
hereby; provided, that Atlas' and Independence's obligations in
connection with registration of the Shares shall be set forth in the
Registration Rights Agreement.
10.11 Headings. The Article and Section headings contained
--------
in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
References to Articles, Sections, Exhibits, and Schedules are to such
hereof.
10.12 Public Announcements. Prior to the Closing Date,
--------------------
Independence shall obtain Atlas' written consent before making, and
Atlas shall obtain Independence's written consent before making, any
public announcements with respect to this Agreement, any related
agreement or the transactions contemplated hereunder or thereunder,
unless such public announcement is required under applicable laws or
securities exchange regulations. The consent requirements of this
Section 10.12 shall also apply to any public announcements made by
either party concerning the Closing.
10.13 Confidentiality. Except as otherwise provided in
---------------
Section 10.12, the parties hereto and their collective representatives
shall forever treat confidentially all information concerning the
terms and conditions of this Agreement, all related agreements, and of
the transactions contemplated hereunder or thereunder (collectively,
"Confidential Information"); provided, however, that Confidential
Information shall not include information which concerns the
Properties or Atlas' operations thereon following the Closing or which
is or becomes generally known to the public not as a result of any
breach of this provision by any party or its representatives. The
obligation to treat the Confidential Information confidentially shall
not apply to the extent that any party or its representatives shall be
required to disclose any such information in connection with an
investigation or legal proceeding where the failure to disclose such
information could result in liability for contempt or other censure or
penalty; provided, however, that such party and/or its representatives
shall notify the other party as soon as possible and in any event
prior to such disclosure and shall cooperate with the other party in
the event that the other party elects to legally contest such
disclosure.
10.14 Certain Definitions. As used in this Agreement,
-------------------
the terms set forth below, when capitalized, have the following
meanings:
"$" shall mean U.S. dollars.
"Affiliate" means any person or entity related to a
party in such a way that either the party or such
person or entity directly or indirectly controls or is
controlled by or is under common control with the
other. For this purpose, "control" means the power,
direct or indirect, to direct or cause direction of
management and policies through ownership of voting
securities, contract, voting interest or otherwise.
-21-
(Page 54 of 64 pages)<PAGE>
"Environmental Laws" means any federal, state, local or
foreign statute, law, ordinance, regulation, rule,
code, order, requirement or rule of common law, now or
previously in effect, and any judicial or
administrative interpretation thereof, including any
judicial or administrative order, consent decree or
judgment, relating to the environment, health, safety
or Hazardous Materials, including, without limitation,
the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended ("CERCLA"); the
Resource Conservation and Recovery Act, 42 U.S.C.
Sections 6901 et seq.; the Hazardous Materials
-- ----
Transportation Act, 49 U.S.C. Sections 6901 et seq.;
-- ----
the Clean Water Act, 33 U.S.C. Sections 1251 et seq.;
-- ----
the Toxic Substances Control Act, 15 U.S.C.
Sections 2601 et seq.; the Clean Air Act, 42 U.S.C.
-- ----
Sections 7401 et seq.; the Safe Drinking Water Act, 42
-- ----
U.S.C. Sections 300f et seq.; the Atomic Energy Act, 42
-- ----
U.S.C. Sections 2011 et seq.; the Federal Insecticide,
-- ----
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136
et seq.; and the Federal Food, Drug and Cosmetic Act,
-- ----
21 U.S.C. Sections 301 et seq.
-- ----
"Hazardous Materials" means (a) petroleum and petroleum
products, radioactive materials, asbestos in any form
that is or could become friable, urea formaldehyde foam
insulation, and transformers or other equipment that
contain polychlorinated biphenyls, or (b) any other
chemical, material or substance which is (i) designated
as a "hazardous substance," pursuant to Section 311 of
the Clean Water Act ("CWA"), 33 U.S.C. Section 1251,
et seq. (33 U.S.C. Section 1321) or listed pursuant to
-- ---
Section 307 of the CWA (33 U.S.C. Section 1317, or
(ii) defined as or included in the definition of a
"hazardous waste" pursuant to Section 1004 of the
Resource Conservation and Recovery Act ("RCRA"), 42
U.S.C. Section 6901, et seq. (42 U.S.C. Section 6903),
-- ---
or (iii) defined as or included in the definition of a
"hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. Section 9601,
et seq., or (iv) defined as or included in the
-- ---
definition of a "pollutant" or "contaminant" pursuant
to the CWA, RCRA, CERCLA, the Clean Air Act, 33 U.S.C.
Section 1251 et seq., or comparable state statutes
-- ---
or regulations.
"Knowledge" or any variation thereof shall mean as to
the facts or circumstances represented: (a) actual
knowledge of (i) any of the officers of Independence or
Jerry W. Bateman, Independence's current Land Manager,
with respect to matters concerning Independence, or
(ii) any of the officers of Atlas, with respect to
matters concerning Atlas; or (b) knowledge that any
such person should have obtained in conducting a
reasonable inquiry as to the relevant business,
operations, properties, documents, agreements, and
records considering such
-22-
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person's particular position and responsibilities with
Independence, on the one hand, or Atlas, on the other
hand.
10.15 Inconsistencies with Exhibits. To the extent
-----------------------------
there are any inconsistencies between the terms and provisions of this
Agreement and the terms and provisions of any Exhibit hereto, the
terms and provisions of this Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the day first above written.
INDEPENDENCE MINING COMPANY INC.
By: Robert W. Micsak
-------------------------------------
Name: Robert W. Micsak
Title: Vice President
ATLAS CORPORATION
By: Gary E. Davis
-------------------------------------
Name: Gary E. Davis
Title: President
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(Page 56 of 64 pages)
REGISTRATION RIGHTS AGREEMENT
-----------------------------
AGREEMENT made as of October 25, 1995 by and between Atlas
Corporation, a Delaware corporation ("Atlas"); and Independence Mining
Company Inc., a Delaware corporation ("Independence").
WITNESSETH:
Atlas and Independence are parties to a Purchase and Sale
Agreement dated October 25, 1995 (the "Purchase Agreement"). In order
to induce Independence to consummate the transactions under the
Purchase Agreement, Atlas has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the Closing under the Purchase
Agreement. Certain capitalized terms used herein and not otherwise
defined are defined in Section 7 hereof.
The parties hereto agree as follows:
1. SHELF REGISTRATION. (a) Atlas shall: (i) as promptly
------------------
as possible following the date hereof file a Shelf Registration
Statement providing for resales of Registrable Securities by
Independence (the "Shelf Registration"); (ii) use its best efforts to
cause such Shelf Registration Statement to be declared effective as
promptly as is possible; and (iii) use its best efforts to keep the
Shelf Registration Statement continuously effective under the
Securities Act with respect to the Registrable Securities until
October 25, 1998, or, if sooner, until the Shares no longer constitute
Registrable Securities. Atlas shall supplement or amend the Shelf
Registration Statement as necessary to comply with the Securities Act
and the rules and regulations thereunder, the rules, regulations or
instructions applicable to the registration form used by Atlas, or any
other law, rule or regulation applicable thereto. Atlas shall pay all
Registration Expenses (as defined in Section 4) incurred in connection
with the Shelf Registration.
(b) In the event that Atlas becomes ineligible to file
a shelf registration statement on behalf of Independence, or the Shelf
Registration filed by Atlas on Independence's behalf becomes
ineffective as a means of registering the Registrable Securities, at
any time after October 25, 1996 and at Independence's request Atlas
shall register the sale of all or part of the Registrable Securities.
Atlas shall be required to file only one registration statement to
effect the foregoing.
2. PIGGYBACK REGISTRATIONS.
-----------------------
(a) RIGHT TO PIGGYBACK. Whenever on or prior to
------------------
October 25, 1998 Atlas proposes to register any of its securities
under the Securities Act to be issued in an underwritten public
offering by Atlas (other than pursuant to the Shelf Registration) and
the registration form to be used may be used for the registration of
Registrable Securities (a "Piggyback Registration"), Atlas will give
prompt written notice to Independence of its intention to effect such
a registration and will include in such registration all Registrable
Securities requested for inclusion therein by Independence.
(Page 57 of 64 pages)<PAGE>
(b) PIGGYBACK EXPENSES. The Registration Expenses
------------------
related to the Registrable Securities in any Piggyback Registration
will be paid by Atlas.
(c) PRIORITY ON REGISTRATIONS. If the managing
-------------------------
underwriters of a Piggyback Registration advise Atlas in writing that
in their sole discretion the number of securities requested to be
included in such offering exceeds the number which can be sold in such
offering such that the offering will be materially adversely affected,
the number of securities to be offered will be reduced as recommended
in writing by the managing underwriters. Atlas will include
securities in such registration according to the following priority:
(i) the securities Atlas proposes to sell, and (ii) the Registrable
Securities requested to be included in such registration and other
securities requested to be included in such registration by holders of
Parity Registration Rights, allocated among the holders of Registrable
Securities and such other holders in proportion, as nearly as
practicable, to the respective number of shares of Common Stock
proposed to be sold in such offering by them.
(d) SELECTION OF UNDERWRITERS. Atlas may select the
-------------------------
investment banker(s) and manager(s) for any offering pursuant to a
Piggyback Registration.
(e) OTHER REGISTRATIONS. If Atlas has previously
-------------------
filed a registration statement with respect to Registrable Securities
pursuant to this Section 2, and if such previous registration has not
been withdrawn or abandoned, Atlas will not file or cause to be
effected any other registration of any of its equity securities or
securities convertible or exchangeable into or exercisable for its
equity securities under the Securities Act (except on Form S-4,
Form S-8 or any successor form), whether on its own behalf or at the
request of any holder or holders of such securities, until a period of
at least three months has elapsed from the effective date of such
previous registration, unless a shorter period of time is approved by
the holders of a majority of the Registrable Securities included in
such previous registration.
3. REGISTRATION PROCEDURES. In connection with any
-----------------------
registration pursuant to Section 1 hereof, whenever Independence has
requested that any Registrable Securities be registered pursuant to
this Agreement, Atlas will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance
with the intended method of disposition thereof and pursuant thereto
Atlas will as expeditiously as possible:
(a) furnish to each Seller of Registrable Securities
such number of copies of such registration statement, each amendment
and supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus) and such other
documents as such Seller may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by it;
(b) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of
such jurisdictions as Independence reasonably requests and do any and
all other acts and things which may be reasonably necessary or
advisable to enable each Seller of Registrable Securities to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such Seller, provided
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(Page 58 of 64 pages)<PAGE>
that Atlas will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required
to qualify but for this subsection, (ii) subject itself to taxation in
any such jurisdiction or (iii) consent to general service of process
in any such jurisdiction except to the extent required by applicable
law;
(c) notify each Seller of Registrable Securities, at
any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a
result of which the prospectus included in such registration statement
contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the
request of any such Seller, Atlas will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not
contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(d) cause all such Registrable Securities to be listed
on each securities exchange on which similar securities issued by
Atlas are then listed;
(e) provide a transfer agent and registrar for all
such Registrable Securities;
(f) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other
actions as Independence reasonably requests in order to expedite or
facilitate the disposition of such Registrable Securities; provided,
however, that in the event of any underwritten offering, Independence
will be responsible for the reasonable fees and disbursements of one
counsel to Atlas for such counsel's review of the underwriting
agreement to the extent such fees and disbursements exceed $2,500 up
to a maximum amount of $20,000;
(g) make available for inspection by any Seller of
Registrable Securities, any underwriter participating in any
disposition pursuant to such registration statement, and any attorney,
accountant or other agent retained by any such Seller or underwriter,
all financial and other records, pertinent corporate documents and
properties of Atlas, and cause Atlas' officers, directors, employees
and independent accountants to supply all information reasonably
requested by any such Seller, underwriter, attorney, accountant or
agent in connection with such registration statement; and
(h) obtain a cold comfort letter from Atlas'
independent public accountants in customary form and covering such
matters of the type customarily covered by cold comfort letters
(provided that such Registrable Securities constitute at least 10% of
the securities covered by such registration statement).
Independence agrees that, upon receipt of any notice from
Atlas of the happening of any event of the kind described in
Section 3.1(c) hereof, Independence will forthwith discontinue
disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until Independence's
receipt of written notice
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(Page 59 of 64 pages)<PAGE>
that sales may continue with the existing prospectus or the
supplemented or amended prospectus contemplated by Section 3(c)
hereof. In the event Independence is not able to commence sales of
Shares pursuant to an effective registration statement not later than
60 days after the date of a notice pursuant to Section 3(c) (the
"Notice Date"), Atlas shall pay to Independence an amount per share
equal to the difference (but only if the price in (ii) is less than
the price in (i)), if any, between (i) the actual sales price
subsequently received from any sales by Independence during a number
of days following the date on which such sales become permissible
which is equal to the number of days over 60 during which such sales
were not allowed and (ii) the average of (A) the closing sales prices
on any national securities exchange or the NASDAQ National Market
System on which the Common Stock is listed or included, or (B) the
average of the bid and asked prices on NASDAQ if not so listed or
included for the days in excess of 60 from the Notice Date (such
average closing sales prices or average bid and asked price, as the
case may be, being referred to as the "Deemed Sales Price"), plus
interest calculated on the Deemed Sales Price from the 61st day after
the Notice Date to the date of any actual sale at the rate of 12% per
annum.
4. REGISTRATION EXPENSES.
---------------------
(a) All expenses incident to Atlas' performance of or
compliance with this Agreement, including, without limitation, all
registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery
expenses, and fees and disbursements of counsel for Atlas and all
independent certified public accountants, underwriters (excluding
discounts and commissions) and other Persons retained by Atlas (all
such expenses being herein called "Registration Expenses"), will be
borne as provided in this Agreement, except that Atlas will, in any
event, pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal
or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities
exchange on which similar securities issued by Atlas are then listed.
(b) In connection with each registration of
Registrable Securities, Atlas will reimburse Independence for the
reasonable fees and disbursements of one counsel chosen by
Independence to the extent such fees and disbursements exceed $2,500
up to a maximum of $25,000.
5. INDEMNIFICATION.
---------------
(a) Atlas agrees to indemnify Independence, its
officers and directors and any person who controls Independence within
the meaning of the Securities Act against all losses, claims, damages,
liabilities and expenses (including legal fees and other expenses
incurred in defending any such claim or action) caused by any untrue
or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided that Atlas
shall not be liable in any such case to
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(Page 60 of 64 pages)<PAGE>
the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such
preliminary prospectus, prospectus, amendment or supplement in
reliance upon and in conformity with information furnished to Atlas in
writing by Independence specifically for use therein. If the
indemnification provided for in this Section 5 is unavailable to or
insufficient to hold harmless Independence in respect of any losses,
claims, damages, or liabilities (or actions in respect thereof)
referred to therein, then Atlas shall contribute to the amount paid or
payable to Independence as a result of such losses, claims, damages,
or liabilities (or actions in respect thereof) in such proportion as
is appropriate to reflect the relative fault of Atlas and Independence
in connection with the statements or omissions which resulted in such
losses, claims, damages, or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by Atlas or Independence and the
parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(b) Independence agrees to indemnify and hold Atlas and any
person who controls Atlas within the meaning of the Securities Act
harmless (in the same manner and to the same extent as set forth in
Section 5(a)) with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any
preliminary prospectus, prospectus, or any amendment or supplement
thereto, if such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to Atlas by Independence specifically for use
therein.
6. PARTICIPATION IN REGISTRATIONS. No Person may
------------------------------
participate in any registration hereunder unless such Person:
(a) in the case of a registration which is
underwritten, agrees to sell such Person's Registrable Securities on
the basis provided in any underwriting arrangements approved by Atlas;
(b) as expeditiously as possible, notifies Atlas, at
any time when a prospectus relating to such Person's Registrable
Securities is required to be delivered under the Securities Act, of
the happening of any event involving such Person as a result of which
such prospectus contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not
misleading;
(c) complies with all reasonable requests made by
Atlas or its counsel with respect to the registration of such Person's
Registrable Securities, including, without limitation, providing
access to all relevant books and records; and
(d) completes, executes and delivers all
questionnaires, powers of attorney, indemnities, underwriting
agreements and other usual and customary documents
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(Page 61 of 64 pages)<PAGE>
necessary or appropriate with respect to the offering of such Person's
Registrable Securities, and in the case of a registration which is
underwritten, necessary or appropriate under the terms of such
underwriting arrangements.
7. DEFINITIONS.
-----------
(a) "Affiliate" shall have the meaning ascribed to it
---------
in Rule 12b-2 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations of the SEC as in
effect on the date hereof.
(b) "Parity Registration Rights" means the right to
--------------------------
register securities of Atlas which, by the terms of the agreement or
instrument granting such rights, are on a parity with the rights of
Independence under this Agreement.
(c) "Person" shall mean any individual, firm,
------
corporation, trust, partnership, or other entity and, with respect to
Persons holding Registrable Securities, shall include any group
comprised of any Person and any other Person with whom such Person or
an Affiliate of such Person has any agreement, arrangement or
understanding, directly or indirectly, for the purpose of acquiring,
holding, voting or disposing of any Common Stock.
(d) "Common Stock" means collectively, Atlas' common
------------
stock, par value $1.00 per share.
(e) "Registrable Securities" means (i) the Shares, and
----------------------
(ii) any securities issued or issuable with respect to the Shares by
way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
other reorganization. As to any particular Registrable Securities,
such securities will cease to be Registrable Securities when they have
ceased to be "restricted securities" as that term is defined by Rule
144 of the Securities Act. For purposes of this Agreement, a Person
will be deemed to be a holder of Registrable Securities whenever such
Person has the right to acquire such Registrable Securities (by
conversion or otherwise, but disregarding any legal restrictions upon
the exercise of such right), whether or not such acquisition has
actually been effected.
(f) "Seller" means any Person whose Registrable
------
Securities are included in a Shelf or Piggyback Registration.
(g) "Shares" means 1,400,000 shares of unregistered
------
Common Stock issued to Independence by Atlas pursuant to the Purchase
Agreement.
(h) "Shelf Registration Statement" shall mean a
----------------------------
"shelf" registration statement of Atlas pursuant to the provisions of
Section 1 of this Agreement which covers any of the Registrable
Securities, on an appropriate form under Rule 415 under the Securities
Act, or any similar rule that may be adopted by the Commission, and
all amendments and supplements to such registration statement,
including post-effective amendments, in each case
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(Page 62 of 64 pages)<PAGE>
including the prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
(i) Unless otherwise stated, other capitalized terms
contained herein have the meanings set forth in the Purchase
Agreement.
8. MISCELLANEOUS.
-------------
(a) NO INCONSISTENT AGREEMENTS. Atlas will not
--------------------------
hereafter enter into any agreement with respect to its securities
which is inconsistent with the rights granted to Independence in this
Agreement.
(b) REMEDIES. Any Person having rights under any
--------
provision of this Agreement will be entitled to enforce such rights
specifically, to recover damages caused by reason of any breach of any
provision of this Agreement and to exercise all other rights granted
by law.
(c) AMENDMENTS AND WAIVERS. Except as otherwise
----------------------
provided herein, the provisions of this Agreement may be amended and
Atlas may take any action herein prohibited, or omit to perform any
act herein required to be performed by it, only if Atlas has obtained
the written consent of Independence, for so long as Independence is a
holder of Registrable Securities, and, at any other time, of the
holders of 60% of the Registrable Securities.
(d) SUCCESSORS AND ASSIGNS. All covenants and
----------------------
agreements in this Agreement by or on behalf of any of the parties
hereto will bind and inure to the benefit of the respective successors
and assigns of the parties hereto whether so expressed or not. In
addition, whether or not any express assignment has been made, the
provisions of this Agreement which are for the benefit of purchasers
or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) INCORPORATION OF PURCHASE AGREEMENT PROVISIONS.
----------------------------------------------
The Sections entitled "Notices", "Severability," "Counterparts,"
"Headings," "Entire Agreement," and "Governing Law" in the Purchase
Agreement are hereby incorporated in this Agreement by reference and
made a part hereof.
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(Page 63 of 64 pages)<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
ATLAS CORPORATION
By: Gary E. Davis
-----------------------------------
Name: Gary E. Davis
Title: President
INDEPENDENCE MINING COMPANY INC.
By: Robert W. Micsak
-----------------------------------
Name: Robert W. Micsak
Title: Vice President
-8-
(Page 64 of 64 pages)
