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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
APEX SILVER MINES LIMITED
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(Name of Issuer)
Ordinary Shares, $.01 par value
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(Title of Class of Securities)
GO474 10 3
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(CUSIP Number)
Stephen R. Nelson, Esq.
Moore Capital Management, Inc.
1251 Avenue of the Americas
New York, New York
10020
(212) 782-7102
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 1, 1997
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(Date of Event which Requires Filing 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 [ ].
<PAGE>
SCHEDULE 13D
CUSIP No. GO474 10 3
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Moore Capital Management, Inc.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
Not Applicable a[ ]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
OO
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Connecticut
7. SOLE VOTING POWER
None
8. SHARED VOTING POWER
NUMBER OF
SHARES 1,477,475
BENEFICIALLY
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING
PERSON None
WITH
10. SHARED DISPOSITIVE POWER
1,477,475
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,477,475
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.9%
14. TYPE OF REPORTING PERSON*
CO, IA
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SCHEDULE 13D
CUSIP No. GO474 10 3
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Louis M. Bacon
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
Not Applicable a[ ]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
OO
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6.. CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.
7. SOLE VOTING POWER
None
8. SHARED VOTING POWER
NUMBER OF
SHARES 1,767,500
BENEFICIALLY
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING
PERSON None
WITH
10. SHARED DISPOSITIVE POWER
1,767,500
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,767,500
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.5%
14. TYPE OF REPORTING PERSON*
IN, IA
3
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SCHEDULE 13D
CUSIP No. GO474 10 3
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Moore Global Investments, Ltd.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
Not Applicable a[ ]
b[ ]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands
7. SOLE VOTING POWER
None
8. SHARED VOTING POWER
NUMBER OF
SHARES 1,477,475
BENEFICIALLY
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING
PERSON None
WITH
10. SHARED DISPOSITIVE POWER
1,477,475
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,477,475
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.9%
14. TYPE OF REPORTING PERSON*
CO
4
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Item 1. Security and Issuer
This statement on Schedule 13D (the "Statement") relates to the
Ordinary Shares, par value $.01 per share (the "Ordinary Shares"), of Apex
Silver Mines Limited, a Cayman Islands corporation (the "Company"). The
registered office of the Company is located at Caledonian House, Ground Floor,
Mary Street, George Town, Grand Cayman, Cayman Islands, British West Indies.
Item 2. Identity and Background
The Statement is being filed by (1) Moore Capital Management,
Inc., a Connecticut corporation ("MCM"), (2) Louis M. Bacon, a United States
citizen, in his capacity as Chairman and Chief Executive Officer, director and
controlling shareholder of MCM ("Mr. Bacon"), and (3) Moore Global Investments,
Ltd., a British Virgin Islands corporation ("MGI"). MCM, Mr. Bacon and MGI are
sometimes collectively referred to herein as the "Reporting Persons".
MCM, a registered commodity trading advisor and member of the
National Futures Association, serves as discretionary investment manager to MGI,
a non-U.S. investment company, and other investment funds. The principal
occupation of Mr. Bacon is the direction of the investment activities of MCM and
its affiliates, carried out in his capacity of Chairman and Chief Executive
Officer of such entities. In this capacity, Mr. Bacon may be deemed to be the
beneficial owner of the Ordinary Shares held for the account of MGI and for the
account of a U.S. partnership (the "Fund"), the general partner of which is an
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entity controlled by Mr. Bacon. The principal offices of MCM are located at 1251
Avenue of the Americas, New York, New York 10020, which is also the business
address of Mr. Bacon. The principal offices of MGI are located at c/o Citco Fund
Services (Bahamas) Ltd., The Bahamas Financial Centre, P.O. Box CB-13136,
Nassau, Bahamas. Schedule I lists the name, business address, citizenship,
position and present principal occupation of the directors and executive
officers of each of MCM and MGI.
During the last five years, none of the Reporting Persons or, to
their knowledge, any of the persons listed on Schedule I has been: (a) convicted
in a criminal proceeding, or (b) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
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. Item
3. Sources and Amounts of Funds or Other Consideration MGI and the Fund expended
an aggregate of approximately $16,630,000 of working capital to purchase the
1,767,500 Ordinary Shares held by them. MGI and the Fund may effect purchases of
securities through margin accounts maintained for them with brokers who extend
margin credit to MGI and the Fund as and when required to open or carry
positions in the margin accounts, subject to applicable Federal margin
regulations, stock exchange rules and such firms' credit policies. The Ordinary
Shares that
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may be held in these margin accounts are pledged as collateral security for the
repayment of debit balances in the accounts.
Item 4. Purpose of Transaction
The acquisition of the Ordinary Shares for the account of MGI and
the Fund was for investment purposes. Each of MCM and Mr. Bacon may direct
further purchases of Ordinary Shares from time to time or the disposition of any
or all of the Ordinary Shares held by MGI or the Fund.
None of the Reporting Persons nor, to the best of their
knowledge, the persons listed in Schedule I have any present plans or proposals
that relate to or would result in any of the actions required to be described in
Item 4 of Schedule 13D. MCM or Mr. Bacon may, at any time, review or reconsider
its or his position with respect to the Company and, to the extent advisable in
light of market conditions, trading policies or other considerations, formulate
plans or proposals with respect to any of such matters, but has no present
intention of doing so.
Item 5. Interest in Securities of the Issuer
(a)-(b) On the date of this Statement:
(i) Mr. Bacon is deemed to have beneficial ownership for purposes
of Section 13(d) of the Securities Exchange Act of 1934 ("Beneficial Ownership")
of 1,767,500 Ordinary Shares by virtue of his control of MCM and the general
partner of the Fund. Such shares represent 9.5% of the issued and outstanding
Ordinary Shares. Also by virtue of his control of MCM and the general partner of
the Fund, Mr. Bacon is deemed to share voting power
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and dispositive power over the Ordinary Shares held by MGI and the Fund.
(ii) MCM is deemed to have Beneficial Ownership of 1,477,475
Ordinary Shares by virtue of its position as discretionary investment manager of
MGI. Such shares represent 7.9% of the issued and outstanding Ordinary Shares.
MCM is vested with the power to direct disposition of the Ordinary Shares held
by MGI and shares with MGI and Mr. Bacon voting power over such Ordinary Shares.
(iii) MGI has Beneficial Ownership of 1,477,475 Ordinary Shares
held by it. Such shares represent 7.9% of the issued and outstanding Ordinary
Shares. MGI currently does not exercise dispositive power over such shares but
could obtain such power within 60 days if MGI exercised its right to terminate
its trading advisory agreement with MCM.
The percentages used herein are calculated based upon the
18,601,544 Ordinary Shares stated to be issued and outstanding as of November
25, 1997, as reflected in the Company's Prospectus dated November 25, 1997
included as part of the Company's Registration Statement on Form S-1 (File No.
333-34685).
To the best knowledge of the Reporting Persons, none of the
persons named in Schedule I, other than Mr. Bacon, has or is deemed to have
Beneficial Ownership of the Ordinary Shares.
(c) On December 1, 1997, MGI and the Fund purchased from the
Company 796,875 and 140,625 Ordinary Shares, respectively, at a price per share
of $11. Such purchases were
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the only transactions effected by the Reporting Persons with respect to Ordinary
Shares within the past 60 days.
(d) The shareholders of MGI and the partners of the Fund have the
right to participate in the receipt of dividends from, or proceeds from the sale
of, the Ordinary Shares held for the account of MGI and the Fund, respectively.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings, or Relationships
with Respect to Securities of the Issuer.
In connection with the acquisition of certain of the Ordinary
Shares held by them, MGI and the Fund entered into a Shareholders' Agreement
dated as of August 6, 1996 with the Company and certain others persons (as
amended, the "Shareholders' Agreement"), which agreement and an amendment
thereto are filed as Exhibit B and Exhibit C hereto respectively, and are
incorporated herein by reference. With respect to the Ordinary Shares to which
it relates, the Shareholders' Agreement sets forth the terms of voting and
transfer rights and restrictions of various classes of holders, preemptive
rights, and agreements of holders in connection with a sale of the Company. The
foregoing description of the terms of the Shareholders' Agreement is qualified
in its entirety by reference to the specific provisions of such agreement, which
is filed as Exhibit B and Exhibit C hereto.
From time to time each of the Reporting Persons, may lend
portfolio securities to brokers, banks or other financial
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institutions. These loans typically obligate the borrower to return the
securities, or an equal amount of securities of the same class, to the lender
and typically provide that the borrower is entitled to exercise voting rights
and to retain dividends during the term of the loan. From time to time to the
extent permitted by applicable law, each Reporting Person may borrow the
Ordinary Shares for the purpose of effecting, and may effect, short sale
transactions, and may purchase securities for the purpose of closing out short
positions in such securities.
Except as set forth herein, the Reporting Persons and the Fund do
not have any contracts, arrangements, understandings or relationships with
respect to any Ordinary Shares.
Item 7. Material to be Filed as Exhibits
Exhibit A: Joint Filing Agreement among the Reporting Persons.
Exhibit B: Shareholders' Agreement dated as of August 6, 1996
among the Company, MGI, the Fund and certain other persons.
Exhibit C: Form of Consent dated March 27, 1997 to amend the
Shareholders' Agreement executed by each of MGI and the Fund.
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Signature
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct. December 1, 1997
MOORE CAPITAL MANAGEMENT, INC.
By: /s/ Louis M. Bacon
-------------------------------
Name: Louis M. Bacon
Title: Chief Executive Officer
/s/ Louis M. Bacon
-------------------------------
Louis M. Bacon
MOORE GLOBAL INVESTMENTS, LTD.
By:
By: /s/ Ruth Beneby/Carl O'Connell
-------------------------------------
Name: Inter Caribbean Services
(Bahamas) Ltd.
Title: Administrative Director
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Schedule I
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(a) Set forth below is the name, position with Moore Capital Management, Inc.
("MCM") and present principal occupation of the directors and executive officers
of MCM. The business address of each such person is 1251 Avenue of the Americas,
New York, New York 10020. Each such person is a United States citizen.
Name and Position with MCM Present Principal Occupation
- -------------------------- ----------------------------
Louis M. Bacon, Director, Chief Executive Officer of
Chairman & Chief Executive MCM and affiliates
Officer
M. Elaine Crocker, Director President of MCM and affiliates
& President
Stanley Shopkorn, Director Managing Director of Equities
Trading for MCM and affiliates
Chris Pia, Director Managing Director of
Foreign Exchange, Futures and Fixed Income
Execution for MCM and affiliates
Richard Axilrod, Director Director of Fixed Income Trading
for MCM and affiliates
Kevin F. Shannon, Director, Chief Financial Officer of MCM
CFO and Treasurer and affiliates
Stephen R. Nelson, Director, General Counsel of MCM and
General Counsel, Vice President affiliates
and Secretary
(b) Set forth below is the name, position with Moore Global Investments Ltd.
("MGI"), business address, citizenship or place of organization and
present principal occupation or business of the directors of MGI.
Name, Business Address and
Citizenship or Place of Position Present Principal
Organization with MGI Occupation
- -------------------------- -------- -----------------
Anthony Stocks Director Director of the
Citco Fund Services (Curacao) International Fund
N.V. Services division of
Kaya Flamboyan 9 Citco Group Ltd.
P.O. Box 812
Willemstad, Curacao
Netherlands Antilles
Citizen: British
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Charles Hansard Director Managing Director
BBV Latinvest Securities Limited of Kingsfort Limited
1 Angel Court
London
England EC2R 7HJ
Citizenship: Irish
Michael J.D. Dee Director Chairman of Europlan
Europlan Financial Services Continuation Limited
Limited
Lister House
35 The Parade, St. Helier
Jersey, JE2 3QQ Channel Islands
Citizenship: British
Robert Voges Director Executive Director
Curacao International Trust and Vice President
Company N.V. of Citco Group
De Ruyterkade 62 Limited
P.O. Box 812
Willemstad, Curacao
Netherlands, Antilles
Citizen: Curacao
*Inter Caribbean Services
(Bahamas) Ltd. Director Member of Citco
The Bahamas Financial Centre Group Ltd.
P.O. Box CB-13136 providing director
Nassau, Bahamas services to
Organized: Bahamas clients to Citco
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Exhibit A
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JOINT FILING AGREEMENT
The undersigned hereby agree that the statement on Schedule 13D
dated December 1, 1997 with respect to the Ordinary Shares of APEX SILVER MINES,
LIMITED, is, and any amendments thereto signed by each of the undersigned shall
be, filed on behalf of each of the undersigned pursuant to and in accordance
with the provisions of Rule 13d-1(f) under the Securities Exchange Act of 1934.
This Agreement may be executed in counterparts, each of which
shall for all purposes be deemed to be an original and all of which shall
constitute one and the same instrument.
Dated: December 1, 1997
MOORE CAPITAL MANAGEMENT, INC.
By: /s/ Louis M. Bacon
-------------------------------
Name: Louis M. Bacon
Title: Chief Executive Officer
/s/ Louis M. Bacon
--------------------------------------
Louis M. Bacon
MOORE GLOBAL INVESTMENTS, LTD.
By:
By: /s/ Ruth Beneby/Carl O'Connell
-------------------------------
Name: Inter Caribbean Services
(Bahamas) Ltd.
Title: Administrative Director
<PAGE>
Exhibit B
SHAREHOLDERS' AGREEMENT
-----------------------
THIS SHAREHOLDERS' AGREEMENT (this "Agreement") is made as of August
---------
6, 1996, by and among Apex Silver Mines Limited, an exempted limited liability
company organized and existing under the laws of the Cayman Islands (the
"Company"), Apex Silver Mines LDC, an exempted limited duration company
- --------
organized and existing under the laws of the Cayman Islands ("Apex LDC"),
--------
Consolidated Commodities Ltd., a limited liability company organized and
existing under the laws of Bermuda ("Consolidated"), Mr. Thomas S. Kaplan
------------
("Kaplan"), Litani Capital Management LDC, a limited duration company organized
- --------
and existing under the laws of the Bahamas ("Litani"), Silver Holdings LDC, an
------
exempted limited duration company organized and existing under the laws of the
Cayman Islands ("Silver Holdings", and collectively with Consolidated and
---------------
Litani, the "Original Investors") and each of the shareholders from time to time
------------------
of the Company (such shareholders, collectively, the "Purchasers"). Apex LDC,
----------
Silver Holdings, Litani, Consolidated, Kaplan and the Purchasers are
collectively referred to herein as the "Shareholders", and each individually as
------------
a "Shareholder." Certain capitalized terms used herein are defined in
-----------
Section 1.
WHEREAS, each of the Original Investors are the owners of shares of
Apex LDC (the "Sub Shares"), and, pursuant to that certain Buy-Sell Agreement
----------
(the "Buy-Sell Agreement") dated as of the date hereof between the Company, Apex
------------------
LDC, and the Original Investors, the Original Investors are entitled to sell at
any time after a Public Offering, in whole or in part, their Sub Shares to the
Company for, at the discretion of the Company, cash, Shares or a combination of
cash and Shares;
WHEREAS, pursuant to Subscription Agreements dated as of the date
hereof (each a "Subscription Agreement"), by and among the Company and the
----------------------
Purchasers, the Company shall issue on the date hereof to each Purchaser shares
of the Company's Common Stock, par value $.01 per share (each such share, a
"Share"); and
- ------
WHEREAS, the parties hereto desire to enter into this Agreement to
establish the composition of the Company's Board of Directors (the "Board"), to
-----
restrict the sale, assignment, transfer, encumbrance or other disposition of the
Shares and the Sub Shares and to provide for certain rights and obligations in
respect thereto as hereinafter provided;
NOW, THEREFORE, the parties to this Agreement hereby agree as follows:
1. DEFINITIONS.
-----------
"AFFILIATE" of a Shareholder controlling, controlled by or under
common control with the Shareholder and, in the case of a Shareholder which is a
partnership, any partner of such Shareholder.
"FAMILY GROUP" means a Shareholder's parents, spouse, descendants
(whether or not adopted) and stepchildren and any trust solely for the benefit
of the Shareholder and/or the Shareholder's parents, spouse, stepchildren and/or
descendants.
<PAGE>
"HOLDER GROUP" means (i) Silver Holdings and its shareholders as of
the date hereof (as a collective group), (ii) Consolidated and its shareholders
as of the date hereof (as a collective group), or (iii) Litani and its
shareholders as of the date hereof (as a collective group).
"MEMORANDUM AND ARTICLES OF ASSOCIATION" means the Company's
memorandum and articles of association in effect at the time as of which any
determination is being made.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"PUBLIC OFFERING" means an underwritten public offering of Shares
pursuant to a registration statement.
"PUBLIC SALE" means any sale of Shares to the public pursuant to an
offering registered under the Securities Act or to the public through a broker,
dealer or market maker pursuant to the provisions of Rule 144 adopted under the
Securities Act.
"RELEVANT AGREEMENTS" means the Buy-Sell Agreement and the Memorandum
and Articles of Association of the Company.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended from time to time.
"SUBSIDIARY" means with respect to any Person, any corporation,
partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors is at
the time owned or controlled, directly or indirectly, by that Person or one or
more of the other Subsidiaries of that Person or a combination thereof, or (ii)
if a partnership, association or other business entity, a majority of the
partnership or other similar ownership interest thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more Subsidiaries of
that Person or a combination thereof. For purposes hereof, a Person or Persons
shall be deemed to have a majority ownership interest in a partnership,
association or other business entity if such Person or Persons shall be
allocated a majority of partnership, association or other business entity gains
or losses or shall be or control the managing director or general partner of
such partnership, association or other business entity.
2. VOTING AGREEMENT. (a) From and after the date of this
----------------
Agreement and until the provisions of this Section 2 cease to be effective, each
holder of Shares shall promptly vote all of his Shares and shall promptly take
all other necessary or desirable actions within his control (whether in his
capacity as a stockholder or officer of the Company or otherwise, and including,
without limitation, attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), and
the Company and Apex LDC shall promptly take all necessary and desirable actions
within their control (including, without limitation, calling special board and
stockholder meetings), so that:
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(i) the Board shall initially be comprised of four (4) directors;
provided, however, that the Board shall be increased (A) by one (1)
-------- -------
director if Litani exercises its right to designate the Litani
Representative (as defined below) and/or (B) by one (1) director if the
Board unanimously agrees to select an independent director;
(ii) Consolidated shall have the right in any election of directors
to the Board to select two (2) representatives to the Board (the
"Consolidated Representatives"); the initial Consolidated Representatives
----------------------------
are Kaplan and David Sean Hanna;
(iii) Litani shall have the right in any election of directors
to the Board to select one (1) representative to the Board (the "Litani
------
Representative"); as of the date hereof, Litani has not exercised its right
--------------
to designate the Litani Representative;
(iv) Silver Holdings shall have the right in any election of
directors to the Board to select two (2) representatives to the Board (the
"Silver Holdings Representatives"); the initial Silver Holdings
-------------------------------
Representatives are Eduardo Elsztain and Paul Soros;
(v) the removal from the Board (with or without cause) of any
representative designated hereunder by a Holder Group shall be at the
written request of such Holder Group, but only upon such written request
and under no other circumstances;
(vi) in the event that any representative designated hereunder
for any reason ceases to serve as a member of the Board during his term of
office, the resulting vacancy on the Board shall be filled by a
representative designated by the same Holder Group that designated the
member that will no longer serve on the Board; and
(vii) any amendment to the Memorandum and Articles of
Association which the Company or any of its Subsidiaries is obligated to
make pursuant to any Relevant Agreement and any other corporate action
which the Company or any of its Subsidiaries is obligated to take pursuant
to any Relevant Agreement which requires stockholder approval shall be
approved.
(b) The Company shall pay the reasonable out-of-pocket expenses
incurred by each director in connection with attending the meetings of the Board
and any committee thereof.
(c) The provisions of this Section 2 shall terminate and cease to have
effect upon the consummation of a Public Offering.
3. RESTRICTIONS ON TRANSFER OF SHARES. (a) Transfer of Shares. No
---------------------------------- ------------------
holder of Shares or Sub Shares shall sell, transfer, assign, pledge or otherwise
directly or indirectly dispose of (a "Transfer") any interest in any such shares
--------
except pursuant to and in accordance with the provisions of this Section 3,
Section 4 and Section 5.
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<PAGE>
(b) Initial Restriction. Until the earlier of December 22, 1997
-------------------
or the consummation of a Public Offering (the "Restricted Period"), no
-----------------
Shareholder shall be permitted to Transfer any Shares or Sub Shares without the
prior consent of the Company, acting through its Board, which consent may not be
unreasonably withheld. It is agreed by the parties hereto that the Board may
object to a Proposed Transfer if it determines that the Proposed Transferee (or
any Affiliate thereof) is a competitor of the Company and/or any of its
Subsidiaries.
(i) At least 20 days prior to making a Transfer, any transferring
holder of Shares shall provide written notice to the Company (the
"Transferee Notice") naming the proposed transferee (the "Proposed
------------------ --------
Transferee") of such proposed Transfer (the "Proposed Transfer"). The
---------- -----------------
Board will deliver written notice of its objection to such Transfer to such
transferring holder within 15 days of receipt of the Transfer notice.
(ii) All Proposed Transfers by or on behalf of Kaplan or an
Original Investor shall be subject to the prior written consent of the
"disinterested" members of the Board. "Disinterested" Board members shall
include all representatives to the Board other than the Board members
appointed by the proposed transferor, or any Affiliate thereof. For the
purposes hereof, in the event either Consolidated or Litani seek to
transfer any of their Shares or Sub Shares, as applicable, neither the
Consolidated Representatives nor the Litani Representative shall be deemed
to be a "disinterested" Board member.
(c) Right of First Refusal on Transfer of Original Investor Shares or
-----------------------------------------------------------------
Sub Shares. Subject to the provisions of Section 3(b) hereof, until the
- ----------
expiration of the Restricted Period each Original Investor shall be entitled to
Transfer its Shares or Sub Shares subject to the following conditions:
(i) At least 30 days prior to making any Transfer of Shares or
Sub Shares, any transferring Original Investor (the "Transferring OI
---------------
Holder") shall deliver a written notice (each such notice, an "Offer
-----
Notice") to the Company and the other Original Investors. The Offer Notice
shall disclose in reasonable detail the proposed number of Shares or Sub
Shares to be transferred (the "OI Transfer Shares") and the proposed terms
------------------
and conditions of the Transfer (including the proposed price at which the
shares are to be transferred).
(ii) First, each Original Investor (or its designee) shall be
entitled to purchase his Investor Pro Rata Share (as defined below) of the
Shares or Sub Shares specified in the Offer Notice at the price and on the
terms specified therein by delivering written notice of such election (an
"Election Notice") to the Transferring OI Holder as soon as practical but
----------------
in any event within ten (10) days after delivery of the Offer Notice. Any
such Shares or Sub Shares not elected to be purchased by the end of such
10-day period shall be reoffered for an additional ten (10) day period by
the Transferring OI Holder on a pro rata basis to the Original Investors
who have elected to purchase their Investor Pro Rata Share. Each Original
Holder's "Investor Pro Rata Share" shall be based upon such Original
-----------------------
Investor's proportionate beneficial ownership of Shares and Sub Shares.
-4-
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(iii) The Transfer of any OI Transfer Shares to be purchased by
the Original Investors shall be consummated as soon as practical after the
delivery of the final Election Notice, but in any event within 15 days
after the delivery of the final Election Notice. In the event that the
Original Investors do not elect to purchase all of the OI Transfer Shares,
the Transferring OI Holder may, within 90 days after the expiration of the
Election Period, transfer such remaining OI Transfer Shares to one or more
third parties at a price no less than the price per share specified in the
Offer Notice for such class and on other terms no more materially favorable
to the transferees thereof than offered to the Original Investors in the
Offer Notice. Any OI Transfer Shares not transferred within such 90-day
period shall be reoffered to the Original Investors under this Section 3(c)
prior to any subsequent Transfer pursuant to the terms of this Section. The
purchase price specified in any Offer Notice shall be payable solely in
cash at the closing of the transaction or in installments over time, and no
Shares may be pledged without the prior written consent of the
Shareholders, which consent may be withheld in their sole discretion.
(d) Other Restrictions. (i) After the Restricted Period, Shares or
------------------
Sub Shares are transferable only pursuant to (A) a Public Offering, (B) Rule 144
or Rule 144A of the Securities Act (or any similar rule or rules then in force)
if such rule is available, and (C) subject to the conditions specified in
Section 3(d)(ii) below, any other legally available means of transfer.
(ii) In connection with the transfer of any Shares or Sub Shares
(other than a transfer described in Section 3(d)(i) (A) or (B) above), the
holder thereof shall deliver written notice to the Company describing in
reasonable detail the transfer or proposed transfer, together with an
opinion of counsel which (to the Company's reason able satisfaction) is
knowledgeable in securities law matters to the effect that such transfer of
Shares or Sub Shares may be effected without registration of such Shares or
Sub Shares under the Securities Act. In addition, if the holder of the
Shares or Sub Shares delivers to the Company an opinion of counsel that no
subsequent transfer of such Shares or Sub Shares shall require registration
under the Securities Act, the Company shall promptly upon such contemplated
transfer deliver new certificates for such Shares or Sub Shares which do
not bear the Securities Act legend set forth in Section 4. If the Company
is not required to deliver new certificates not bearing such legend in
exchange for such Shares or Sub Shares, the holder thereof shall not
transfer the same until the prospective transferee has confirmed to the
Company in writing its agreement to be bound by the conditions contained in
this Section and Section 4.
(e) Permitted Transfers. The restrictions set forth in this Section 3
-------------------
shall not apply to (i) any Transfer of Shares by any Shareholder among its
Affiliates, (ii) a Transfer of Shares by any Shareholder pursuant to the laws of
descent and distribution or among such Share holder's Family Group, (iii) any
Transfer from a Shareholder to another Shareholder, provided that the provisions
--------
of this Agreement will continue to be applicable to the Shares after any
Transfer pursuant to clauses (i), (ii) and (iii) above and the transferees of
such Shares shall agree in writing to be bound by the provisions of this
Agreement. Upon the Transfer of Shares pursuant to clauses (i), (ii) and (iii)
of the previous sentence, each transferee will deliver a
-5-
<PAGE>
written notice to the Company, which notice will disclose in reasonable detail
the identity of such transferee.
4. PREEMPTION RIGHTS. (i) Except for the issuance of Shares or
-----------------
securities (i) pertaining to options or rights to acquire Shares existing on the
date hereof, including, without limitation, any and all Shares which may be
issued to the Original Investors pursuant to the terms of the Buy-Sell
Agreement, (ii) pursuant to a Public Sale, or (iii) pursuant to stock or option
issuances to directors, employees or consultants of the Company or any of its
direct or indirect subsidiaries, if the Company at any time after the date
hereof authorizes the issuance or sale of any Shares or any securities
containing options or rights to acquire any Shares (other than as a dividend on
outstanding Shares), the Company shall first offer to sell to each Shareholder a
portion of such Shares or other securities equal to the percentage of Shares
and, for the purposes hereof, Sub Shares held by such Shareholder at the time of
such issuance.
(ii) In order to exercise its purchase rights hereunder, each
Shareholder must within 20 days after receipt of written notice from the Company
describing in reasonable detail the Shares or securities being offered, the
purchase price thereof, the payment terms and such Shareholder's pro rata
percentage allotment, deliver a written notice to the Company describing its
election hereunder. Any Shares not elected to be purchased by the end of such
20-day period shall be reoffered for an additional 10-day period by the Company
on a pro rata basis to the Shareholders who elected to purchase the entire
allotment of Shares originally offered to such Shareholders.
(iii) Upon the expiration of the offering periods described above,
the Company shall be entitled to sell such Shares or securities which the
Shareholders have not elected to purchase during the 180 days following such
expiration on terms and conditions no more favorable to the purchasers thereof
than those offered to the Shareholders. Any Shares or securities offered or
sold by the Company to any Person after such 180-day period must be reoffered to
the Shareholders pursuant to the terms of this Section.
(iv) The provisions of this Section 3A shall terminate and cease to
have effect upon the consummation of a Public Offering.
5. LEGEND. Each certificate evidencing Shares and each certificate
------
issued in exchange for or upon the transfer of any Shares (if such shares remain
Shares as defined herein after such Transfer) shall be stamped or otherwise
imprinted with a legend in substantially the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVER ING SUCH
SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT
OR THE
-6-
<PAGE>
COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF THESE
SECURITIES REASONABLY SATIS FACTORY TO THE COMPANY, STATING THAT SUCH
SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH.
IN ADDITION, THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN TRANSFERS AND VOTING RESTRICTIONS PURSUANT TO A SHARE
HOLDERS' AGREEMENT AMONG THE COMPANY AND CERTAIN OF THE COMPANY'S
MEMBERS. A COPY OF SUCH SHAREHOLDERS' AGREEMENT WILL BE FURNISHED
WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN
REQUEST."
The Company shall imprint such legend on certificates evidencing Shares
outstanding prior to the date hereof. The legend set forth above shall be
removed from the certificates evidencing any shares which cease to be Shares in
accordance with this Agreement.
6. LEGEND REMOVAL. If any Shares or Sub Shares become eligible for
--------------
sale pursuant to Rule 144(k), the Company shall, upon the request of the holder
of such Shares or Sub Shares, issue new certificates for such Shares or Sub
Shares not bearing the Securities Act legend set forth in Section 4.
7. TRANSFER. Prior to Transferring any Shares to any Person, the
--------
transferring holder shall cause the prospective transferee to execute and
deliver to the Company and the other Shareholders a counterpart of this
Agreement and the Subscription Agreement, dated as of the date hereof, by and
among the Company and the Investors.
8. HOLDBACK AGREEMENT. Each Shareholder agrees not to effect any
------------------
public sale or distribution (including sale pursuant to Rule 144 of the Security
Act) of equity securities of the Company, or any securities, options or rights
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and the 180-day period beginning on the effective date of
any underwritten offerings unless the underwriters managing the registered
offering otherwise agree.
9. SALE OF THE COMPANY. (a) If a sale of substantially all of the
-------------------
Company's assets determined on a consolidated basis, or a sale of all or
substantially all of the Company's outstanding capital stock (whether by merger,
recapitalization, consolidation, reorganization, combination or otherwise) to
any independent third party or group of independent third parties is approved by
the Company's Board (any such Company Sale approved by the Board constituting an
"Approved Sale"), each Shareholder will consent to and raise no objections to
-------------
such Approved Sale.
-7-
<PAGE>
(b) In connection with any such Approved Sale, (i) if the Approved
Sale is structured as (A) a merger or consolidation, each Shareholder shall
waive any dissenters rights, appraisal rights or similar rights in connection
with such merger or consolidation, (B) a sale of stock, each Shareholder shall
agree to sell all of his Shares, or rights to acquire Shares, on the terms and
conditions so approved, or (C) as a sale of assets, each Shareholder shall vote
in favor of such sale and any subsequent liquidation of the Company or other
distribution of the proceeds therefrom, (ii) each Shareholder shall take all
necessary or desirable actions in connection with the consummation of the
Approved Sale reasonably requested by the Company and (iii) each Shareholder
shall be obligated to join on a pro rata basis (based on the share of the
aggregate proceeds paid in such Approved Sale) in any indemnification or other
obligations that the Company agrees to provide in connection with such Approved
Sale other than any such obligations that relate specifically to the Company or
to a particular Shareholder such as indemnification with respect to
representations and warranties given by a Shareholder regarding such
Shareholder's title to and ownership of Shares; provided that no Shareholder
--------
shall be obligated in connection with such Approved Sale to agree to indemnify
or hold harmless the prospective transferee(s) with respect to an amount in
excess of the net cash proceeds paid to such holder in connection with such
Approved Sale.
(c) The obligations of the Shareholders with respect to an Approved
Sale are subject to the satisfaction of the following conditions: (i) upon the
consummation of the Approved Sale, each Shareholder will receive the same form
of consideration and the same portion of the aggregate consideration that such
Shareholders would have received if such aggregate consideration had been
distributed by the Company in complete liquidation pursuant to the rights and
preferences set forth in the Company's Memorandum and Articles of Association as
in effect immediately prior to such Approved Sale and (ii) each holder of then
currently exercisable rights to acquire Shares will be given an opportunity to
exercise such rights prior to the consummation of the Approved Sale and
participate in such sale as Shareholders.
(d) If the Company or any one or more Shareholders enter into any
negotiation or transaction for which Rule 506 (or any similar rule then in
effect) promulgated by the Securities Exchange Commission may be available with
respect to such negotiation or transaction (including a merger, consolidation or
other reorganization), the Shareholders will, at the request of the Company,
appoint a purchaser representative (as such term is defined in Rule 501)
reasonably acceptable to the Company. If any Shareholder appoints a purchaser
representative designated by the Company, the Company will pay the fees of such
purchaser representative, but if any Shareholder declines to appoint the
purchaser representative designated by the Company such holder will appoint
another purchaser representative, and such Shareholder will be responsible for
the fees of the purchaser representative so appointed.
(e) Shareholders will bear their pro rata share (based upon the number
of Shares (including the aggregate number of Shares which would be issued in the
event the Company purchased all outstanding Sub Shares for Shares) which would
be sold) of the costs of any sale of Shares pursuant to an Approved Sale to the
extent such costs are incurred for the benefit of all Shareholders and are not
otherwise paid by the Company or the acquiring party. For purposes of this
section 8(e), costs incurred in exercising reasonable efforts to take all
necessary actions in connection with the consummation of an Approved Sale in
accordance with
-8-
<PAGE>
Section 8(a) shall be deemed to be for the benefit of all Shareholders. Costs
incurred by Shareholders on their own behalf will not be considered costs of the
transaction hereunder.
(f) The provisions of this Section 8 will terminate upon the
consummation of a Public Offering.
10. COMPANY REPRESENTATIONS. The Company hereby represents and
-----------------------
warrants as follows:
(a) The Company is an exempted limited liability company duly
organized, validly existing and in good standing under the laws of the Cayman
Islands; has the corporate power and authority to conduct the business in which
it is currently engaged; and is duly qualified as a foreign corporation and is
in good standing under the laws of each jurisdiction where the conduct of its
business requires such qualification, except to the extent that the failure so
to qualify would not, in the aggregate, have a material adverse effect on the
condition (financial or otherwise), operations, business or properties of the
Company or the ability of the Company to perform its obligations under this
Agreement.
(b) The Company has all requisite corporate power and authority to
make, deliver, and perform its obligations under this Agreement. The Company
has taken all corporate action necessary to authorize the execution, delivery
and performance of this Agreement. No consent or authorization of, filing with
or other act by or in respect of any governmental authority is required to be
obtained or made by or on behalf of the Company in connection with the
execution, delivery, performance, validity or enforceability of this Agreement.
This Agreement has been duly executed and delivered by or on behalf of the
Company.
(c) This Agreement (assuming due authorization, execution and delivery
thereof by each of the other parties hereto) constitutes the legal, valid and
binding obligation of the Company, enforceable against it in accordance with its
terms.
(d) There is no action suit, investigation or proceeding of or before
any arbitrator or governmental authority now pending or, to the knowledge of the
Company, threatened against or affecting it or against any of its properties or
income that would have a material adverse effect on, or which questions or
challenged, this Agreement or any of the transactions contemplated hereby.
(e) Upon the Company's receipt and acceptance of payment by the
Purchasers pursuant to the Subscription Agreement and the issuance of stock
certificates therefor, the Shares will be legally and validly issued.
11. TRANSFERS IN VIOLATION OF AGREEMENT. Any Transfer or attempted
-----------------------------------
Transfer of any Shares or Sub Shares in violation of any provision of this
Agreement shall be void, and neither the Company nor Apex LDC shall record such
Transfer on its books or treat any purported transferee of such Shares or Sub
Shares as the owner of such shares for any purpose.
-9-
<PAGE>
12. ALTERATIONS TO COMPANY CAPITAL STRUCTURE. Until the consummation
----------------------------------------
of a Public Offering, any changes or other amendments to the capital structure
of the Company shall be subject to the prior written consent of Silver Holdings
and Consolidated.
13. AMENDMENT AND WAIVER. Except as otherwise provided herein, no
--------------------
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company unless such modification, amendment or waiver is
approved in writing by the Company. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Original Investors unless such modification, amendment or
waiver is approved in writing by the Original Investors.
14. SEVERABILITY. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
15. ENTIRE AGREEMENT. Except as otherwise expressly set forth
----------------
herein, this document, the Subscription Agreement and the Buy-Sell Agreement
embody the complete agreement and understanding among the parties hereto with
respect to the subject matter hereof and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
16. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
----------------------
this Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Shareholders and any subsequent
holders of Shares and the respective successors and assigns of each of them, so
long as they hold Shares.
17. COUNTERPARTS. This Agreement may be executed in separate
------------
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
18. REMEDIES. The parties hereto agree and acknowledge that money
--------
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that the Company and any Shareholder shall have the right to
injunctive relief, in addition to all of its rights and remedies at law or in
equity, to enforce the provisions of this Agreement. Nothing contained in this
Agreement shall be construed to confer upon any Person who is not a signatory
hereto any rights or benefits, as a third party beneficiary or otherwise.
19. NOTICES. All notices, demands or other communications to be
-------
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when personally delivered
or received by certified mail, return receipt requested, confirmed telecopy or
sent by guaranteed overnight courier service. Such notices, demands and other
communications will be sent to Shareholders at the addresses
-10-
<PAGE>
indicated for such Persons in the Subscription Agreement, or to any party
(including any new party) at such address or to the attention of such other
person as the recipient party has specified by prior written notice to the
sending party.
20. GOVERNING LAW. The corporate law of the Cayman Islands will
-------------
govern all issues concerning the relative rights of the Company and the
Shareholders. All other issues concerning this Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would cause the
application of the law of any jurisdiction other than the State of New York.
21. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
--------------------
are inserted for convenience only and do not constitute a part of this
Agreement.
-11-
<PAGE>
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this
Shareholders' Agreement on the day and year first above written.
-------------------------------------
Thomas S. Kaplan
APEX SILVER MINES LIMITED
By:
----------------------------------
Name:
Title:
APEX SILVER MINES LDC
By:
----------------------------------
Name:
Title:
CONSOLIDATED COMMODITIES LTD.
By:
----------------------------------
Name:
Title:
LITANI CAPITAL MANAGEMENT LDC
By:
----------------------------------
Name:
Title:
-12-
<PAGE>
SCHEDULE A
----------
NAME OF PURCHASER
- -----------------
Altamira Management Ltd.
As Agent for A/C# 176
By: /s/ Peter Rizakos
-----------------
Name: Peter Rizakos
Title: General Counsel
Altamira Management Ltd.
As Agent for A/C# 317
By: /s/ Peter Rizakos
-----------------
Name: Peter Rizakos
Title: General Counsel
Altamira Management Ltd.
As Agent for A/C# 124
By: /s/ Peter Rizakos
-----------------
Name: Peter Rizakos
Title: General Counsel
Altamira Management Ltd.
As Agent for A/C# 106
By: /s/ Peter Rizakos
-----------------
Name: Peter Rizakos
Title: General Counsel
Anduril Fund Ltd.
By: /s/ J. Thomspon
---------------
Name: Janet P. Thompson
Title: Vice President
<PAGE>
SCHEDULE A
----------
NAME OF PURCHASER
- -----------------
Anduril Fund Ltd.
By: /s/ J. Thomspon
---------------
Name: Janet P. Thompson
Title: Vice President
Anduril Irrevocable Deferred Trust 1
By: /s/ Barry W. Herman
-------------------
Name: Barry W. Herman
Title: Trustee
ANZ Nominees (Guernsey) Ltd.
A/C# AAIZ
By: /s/ ANZ Nominees (Guernsey) Limited
-----------------------------------
Name:
Title: Authorised Signature
ANZ Nominees (Guernsey) Ltd.
A/C# AAIQ
By: /s/ ANZ Nominees (Guernsey) Limited
-----------------------------------
Name:
Title: Authorised Signature
ANZ Nominees (Guernsey) Ltd.
A/C# AAIJ
By: /s/ ANZ Nominees (Guernsey) Limited
-----------------------------------
Name:
Title: Authorised Signature
Argonaut Capital Management
By: /s/ David S.
------------
Name: David S.
Title: General Partner
2
<PAGE>
SCHEDULE A
----------
NAME OF PURCHASER
- -----------------
Berliner, Leni
By: /s/ Leni Berliner
-----------------
Name: Leni Berliner
Brant Investments Ltd.
A/C# 921-6001
By: /s/ Nancy MacKellar
-------------------
Name: Nancy MacKellar
Title: Executive Vice President
Buchanan, Larry
By: /s/ Larry Buchanan
------------------
Name: Larry Buchanan
CBG Compagnie Bancaire Geneve
Ref.: Anduril Fund Limited
By: /s/ T. Mory
-----------
Name: T. Mory
Title: Mandataire Commercial
By: /s/ J. Sadegh
-------------
Name: J. Sadegh
Title: Fondee de Pouvoir
Celtic Group Ltd.
By: /s/ Kenny McDonors
------------------
Name: Kenny McDonors
Title: Director
3
<PAGE>
SCHEDULE A
----------
NAME OF PURCHASER
- -----------------
CONSOLIDATED COMMODITIES, LTD.
By: /s/ Peter D. Martin
-------------------
Name: Peter D. Martin
Title: Director/Vice President
Damerel Trading S.A.
By: /s/ ABN AMRO Trust Company (Suisse) S.A.
----------------------------------------
Name:
Title: Proxyholder
Derzavich, Esq., Fernando
By: /s/ Fernando Derzavich
----------------------
Name: Fernando Derzavich, Esq.
Dunavant Enterprises, Inc.
By: /s/ Richard L. Fisher
---------------------
Name: Richard L. Fisher
Title: Senior Vice President
Elsztain, Eduardo S.
By: /s/ Eduardo Sergio Elsztain
---------------------------
Name: Eduardo Sergio Elzstain
ETAB Comfort
By: /s/ Victor Peck
---------------
Name: Victor Peck
Title: Director
Fleischer, Donald R.
By: /s/ Donald R. Fleischer
-----------------------
Name: Donald R. Fleischer
4
<PAGE>
SCHEDULE A
----------
NAME OF PURCHASER
- -----------------
Gallen, Jonathan
By: /s/ Jonathan Gallen
-------------------
Name: Jonathan Gallen
Gruye, Charles R.
By: /s/ Charles R. Gruye
--------------------
Name: Charles R. Gruye
Heartland Small Cap Contrarian Fund
By: /s/ William J. Nasgovitz
------------------------
Name: William J. Nasgovitz
Title: President
Humber Investments Limited
By: /s/ Lo Yuk Wan
--------------
Name: Lo Yuk Wan
Title: Director
Humber Investments Limited
By: /s/ Li Mei Ling
---------------
Name: Li Mei Ling
Title: Director
IMS Global Investments X, Ltd.
By: /s/ Marian Fitzpatrick
----------------------
Name: Marian Fitzpatrick
Title: Director
Infinity Properties Ltd. B.V.I.
By: /s/ Jacques Benzeno
-------------------
Name: Jacques Benzeno
Title: Director
5
<PAGE>
SCHEDULE A
----------
NAME OF PURCHASER
- -----------------
Ivor Wolfson Corp. S.A.
By: /s/ Ivor S. T. Wolfson
----------------------
Name: Ivor S.T. Wolfson
Title: President
Frankston Investment Limited
By: /s/ R.A. Clifford
-----------------
Name: R.A. Clifford
Title: Director
Litani Capital Management LDC
By: /s/ David Sean Hanna
--------------------
Name: David Sean Hanna
Title: Director
Mada Limited
By: /s/ M.D. Dekel Golan
--------------------
Name: M.D Dekel Golan
Title:
Moore Global Investments, Ltd.
By: /s/ Savvas Savvinidis
---------------------
Name: Savvas Savvinidis
Title: Director of Operations
Nash, Ron and Linda
By: /s/ Ron Nash/Linda Nash
------------------------
Name: Ronald Nash/Linda Nash
Natbony, William
By: /s/ William Natbony
-------------------
Name: William Natbony
6
<PAGE>
SCHEDULE A
----------
NAME OF PURCHASER
- -----------------
Natbony Trust Partnership
By: /s/ William Natbony
-------------------
Name: William Natbony
Title: General Partner
New York Holdings Ltd.
By: /s/ Fox Neeman Herzog
---------------------
Name: Fox Neeman Herzog
Title: Director
Pezet, Felipe de Lucio
By: /s/ Felipe de Lucio
-------------------
Name: Felipe de Lucio Pezet
Recanati, Dafna
By: /s/ Dafna Recanati
------------------
Name: Dafna Recanati
Remington Investments Strategies, L.P.
By: /s/ Savvas Savvinidis
---------------------
Name: Savvas Savvinidis
Title: Director of Operations
Schraub, Howard
By: /s/ Howard Schraub
------------------
Name: Howard Schraub
Silver Holdings LDC
By: /s/ Gary Gladstein
------------------
Name: Gary Gladstein
7
<PAGE>
SCHEDULE A
----------
NAME OF PURCHASER
- -----------------
Spira, Steven M.
By: /s/ Steven M. Spira
-------------------
Name: Steven M. Spira
Suma Silver Resources, L.P.
By: /s/ Michael A. Natbony
----------------------
Name: Michael A. Natbony
Title: President
Sussman, Marvin S.
By: /s/ Marvin S. Sussman
---------------------
Name: Marvin S. Sussman
Brant Investments Ltd.
A/C# 921-6008
By: /s/ Nancy MacKellar
-------------------
Name: Executive Vice President
United Mizrahi Bank
(Switzerland) Ltd.
A/C# 19-173-92065
By: /s/ H. Zacharias
----------------
Name: H. Zacharias
Title: General Manager
By: /s/ J. Rhein
------------
Name: J. Rhein
Title: Assistant Manager
CBG Compagnie Bancaire Geneve
Ref.: Anduril Fund Ltd.
By: /s/ T. Mory
-----------
Name: T. Mory
Title: Mandataire Commercial
By: /s/ J. Sadeigh
--------------
Name: J. Sadeigh
Title: Fondee de Pouvoir
8
<PAGE>
SCHEDULE A
----------
NAME OF PURCHASER
- -----------------
CBG Compagnie Bancaire Geneve
Ref.: Suma Silver Resources, L.P.
By: /s/ T. Mory
-----------
Name: T. Mory
Title: Mandataire Commercial
By: /s/ A. Touboul
--------------
Name: A. Touboul
Title: Directeur Adjoint
Mada Limited
By: /s/ M.D. Dekel Golan
--------------------
Name: Dekel Golan
9
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
- -----------------------------------------------------------------------------------------------------
NUMBER
NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES
- ---------------------------------------- ------------------------------------------ --------------
<S> <C> <C>
ALTAMIRA MANAGEMENT LTD. Gee & Co., Account Number:A93300001 59,300
AS AGENT FOR A/C# 176 c/o Canadian Imperial Bank of Commerce
P.O. Box 9, Commerce Court Postal Station
Toronto, Ontario M5W 1G9
WITH COPIES TO:
Altamira Management Ltd., as Agent for
Account Number 176
250 Bloor Street, East, Suite 300
Toronto, Ontario M4W 1E6
ALTAMIRA MANAGEMENT LTD. Gee & Co., Account Number:A99900002 187,500
AS AGENT FOR A/C# 317 c/o Canadian Imperial Bank of Commerce
P.O. Box 9, Commerce Court Postal Station
Toronto, Ontario M5W 1G9
WITH COPIES TO:
Altamira Management Ltd., as Agent for
Account Number 317
250 Bloor Street, East, Suite 300
Toronto, Ontario M4W 1E6
ALTAMIRA MANAGEMENT LTD. Royal Trust Corporation of Canada, 97,500
AS AGENT FOR A/C# 124 Account
Number: 11588012
Royal Bank Plaza, South Tower
Toronto, Ontario M5J 2J5
WITH COPIES TO:
Altamira Management Ltd., as Agent for
Account Number 124
250 Bloor Street, East, Suite 300
Toronto, Ontario M4W 1E6
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
- -----------------------------------------------------------------------------------------------------
NUMBER
NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES
- ---------------------------------------- ------------------------------------------ --------------
<S> <C> <C>
ALTAMIRA MANAGEMENT LTD. Gerlach & Co., Account Number 847115 93,200
AS AGENT FOR A/C# 106 c/o Citibank, N.A.
20 Exchange Place, Level C
New York, New York 10005
WITH COPIES TO:
Altamira Management Ltd., as Agent for
Account Number 106
250 Bloor Street, East, Suite 300
Toronto, Ontario M4W 1E6
ANDURIL FUND LTD. Windermere House 148,774.1850
404 East Bay Street
Nassau, Bahamas
ANDURIL FUND LTD. Windermere House 62,500
404 East Bay Street
Nassau, Bahamas
ANDURIL IRREVOCABLE DEFERRED TRUST 1 Windermere House 35,816.0075
404 East Bay Street
Nassau, Bahamas
ANZ NOMINEES (GUERNSEY) LTD. ANZ Bank (Guernsey) Limited 137,753.8750
A/C# AAIZ P.O. Box 153, St. Peter Port
Guernsey, Channel Islands
ANZ NOMINEES (GUERNSEY) LTD. ANZ Bank (Guernsey) Limited 75,000
A/C# AAIQ P.O. Box 153, St. Peter Port
Guernsey, Channel Islands
ANZ NOMINEES (GUERNSEY) LTD. ANZ Bank (Guernsey) Limited 37,500
A/C# AAIJ P.O. Box 153, St. Peter Port
Guernsey, Channel Islands
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
- -----------------------------------------------------------------------------------------------------
NUMBER
NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES
- ---------------------------------------- ------------------------------------------ --------------
<S> <C> <C>
ARGONAUT CAPITAL MANAGEMENT 135 East 57th Street, 31st Street 62,500
New York, New York 10022
BERLINER, LENI 5406 Connecticut Avenue, N.W., #401 25,000
Washington D.C. 20015
BRANT INVESTMENTS LTD. Brant Investments Ltd., 240,000
A/C# 921-6001 Account Number: 921-6001
c/o Royal Trust Corporation of Canada
Royal Bank Plaza, South Tower
Toronto, Ontario M5J 2J5
WITH COPIES TO:
C.A. Delaney Capital Management Ltd.,
161 Bay Street, Suite 5100
Toronto, Ontario M5J 2S1
BUCHANAN, LARRY 720 Faith Avenue 25,000
Ashland, Oregon 97520
CBG COMPAGNIE BANCAIRE GENEVE 20, Ave de Rumine 162,500
REF.: ANDURIL FUND LIMITED 1005 Lausanne Switzerland
CELTIC GROUP LTD. c/o Arthur D. Hanna & Company 31,250
10 Devaux Street
Nassau, Bahamas
WITH COPIES TO:
Mr. Kerry A. McDonald
3692 South Newport Way
Denver, CO 80237
CONSOLIDATED COMMODITIES, LTD. Reid House 3,935,825
31 Church Street
Hamilton HM 12
Bermuda
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
- -----------------------------------------------------------------------------------------------------
NUMBER
NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES
- ---------------------------------------- ------------------------------------------ --------------
<S> <C> <C>
DAMEREL TRADING S.A. ABM AMRO Trust Company (Suisse) S.A. 187,500
80, rue de Rhone
CH 1204 Geneva
DERZAVICH, ESQ., FERNANDO 7 Kommiyut Street 27,550.7750
Herzlia Bet 46143
Israel
DUNAVANT ENTERPRISES, INC. 3797 New Getwell Road 12,500
Memphis, TN 38118
ELSZTAIN, EDUARDO S. Consultores Asset Management, S.A. 25,000
Bolivar 108
1st Floor-Capital Federal
(1066) Buenos Aires
Argentina
ETAB COMFORT Nancy Stewart 275,507.7500
Fahnestock & Co.
110 Wall Street
New York, New York
FLEISCHER, DONALD R. 173 Riverside Drive, #5R 25,000
New York, New York 10024
GALLEN, JONATHAN Pequod Investments, L.P. 25,000
950 Third Avenue, 20th Floor
New York, New York 10022
GRUYE, CHARLES R. 1333 N. California Boulevard 18,750
Suite 520
Walnut Creek, California 94596
HEARTLAND SMALL CAP CONTRARIAN FUND 790 North Milwaukee Street 187,500
Milwaukee, Wisconsin
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE A
- -----------------------------------------------------------------------------------------------------
NUMBER
NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES
- ---------------------------------------- ------------------------------------------ --------------
<S> <C> <C>
HUMBER INVESTMENTS LIMITED Suite 922C 250,000
Europort
Gibraltar
WITH COPIES TO:
Springfield Financial Advisory Limited
22/f, Hang Lung Centre
2-20 Paterson Street
Causeway Bay, Hong Kong
HUMBER INVESTMENTS LIMITED Suite 922C 137,753.8750
Europort
Gibraltar
WITH COPIES TO:
Springfield Financial Advisory Limited
22/f, Hang Lung Centre
2-20 Paterson Street
Causeway Bay, Hong Kong
IMS GLOBAL INVESTMENTS X, LTD. IFS (Ireland) 125,000
Harcourt Centre,
Harcourt Street
Dublin 2 Ireland
INFINITY PROPERTIES LTD. B.V.I. Mossack Fonseca & Co. (B.V.I.) Ltd. 517,954.5700
Skelton Building
P.O. Box 3136
Road Twon, Tortola
British Virgin Islands
IVOR WOLFSON CORP. S.A. Simtat Hagiva 34 55,101.5500
Savyon 565-30 1
Israel
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
- -----------------------------------------------------------------------------------------------------
NUMBER
NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES
- ---------------------------------------- ------------------------------------------ --------------
<S> <C> <C>
FRANKSTON INVESTMENT LIMITED c/o Theodore Goddard 25,000
Osprey House, 5 Old Street
St. Helier
Jersey, Channel Islands
LITANI CAPITAL MANAGEMENT LDC 10 Devaux Street 1
Nassau, Bahamas
MADA LIMITED Abbott Building, P.O. Box 3186 25,000
Main Street
Road Town, Tortola
British Virgin Islands
WITH COPIES TO:
Dekel and Nurit Golan
c/o Mada Management & Holdings Ltd.
8 Rishonim Street
Tel Aviv, Israel 65145
MOORE GLOBAL INVESTMENTS, LTD. c/o Curacao International Trust 796,875
Company N.V.
Kaya Flamboyan 9
Curacao, Netherlands Antilles
NASH, RON AND LINDA 134 Essex Drive 25,000
Tenafly, New Jersey 07670
NATBONY, WILLIAM 61 Yukon Drive 115,207.37
Woodbury, New York 11797
NATBONY TRUST PARTNERSHIP 61 Yukon Drive 27,500
Woodbury, New York 11797
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
- -----------------------------------------------------------------------------------------------------
NUMBER
NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES
- ---------------------------------------- ------------------------------------------ --------------
<S> <C> <C>
NEW YORK HOLDINGS LTD. c/o Herzog, Fox Neeman 27,550.7750
4 Weizmann Street
Asia House
Tel Aviv 64239
Israel
PEZET, FELIPE DE LUCIO c/o Andean Silver Corporation LDC 25,000
755 Las Camelias, 3rd Floor
Lima 27 Peru
RECANATI, DAFNA 16 Prof. Shor 3,339,153.9300
Tel-Aviv 62961
Israel
REMINGTON INVESTMENTS STRATEGIES, L.P. 1251 Avenue of the Americas, 53rd Floor 140,625
New York, New York 10020
SCHRAUB, HOWARD 6447 Camion De La Costa 25,700
La Jolla, California 92037
SILVER HOLDINGS LDC c/o Curacao Corporation Company N.V. 1
Kaya Flamboyan 9
Willemstad, Curacao
Netherlands Antilles
SPIRA, STEVEN M. 277 West End Avenue 6,250
New York, New York 10023
SUMA SILVER RESOURCES, L.P. c/o Paradigm Capital Management, Inc. 278,500
3101 TowerCreek Parkway
Suite 500
Atlanta, Georgia 30339
SUSSMAN, MARVIN S. 101 Central Park West 12,500
New York, New York 10023
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
- -----------------------------------------------------------------------------------------------------
NUMBER
NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES
- ---------------------------------------- ------------------------------------------ --------------
<S> <C> <C>
BRANT INVESTMENTS LTD. c/o Royal Trust Corporation of Canada 510,000
A/C# 921-6008 Royal Bank Plaza, South Tower
Toronto, Ontario M5J 2J5
Canada
WITH COPIES TO:
C.A. Delaney Capital Management Ltd.
161 Bay Street, Suite 5100
Toronto, Ontario M5J 251
UNITED MIZRAHI BANK Lowenstrasse 1 27,550.7750
(SWITZERLAND) LTD. 8021 Zurich
A/C# 19-173-92065 Switzerland
CBG COMPAGNIE BANCAIRE GENEVE 20, Ave de Rumine 375,000
REF.: ANDURIL FUND LTD. 1005 Lausanne
Switzerland
CBG COMPAGNIE BANCAIRE GENEVE 20, Ave de Rumine 125,000
REF.: SUMA SILVER RESOURCES, L.P. 1005 Lausanne
Switzerland
WITH COPIES TO:
Paradigm Capital Management, Inc.
3101 TowerCreek Parkway
Suite 500
Atlanta, Georgia 30339
MADA LIMITED Abbott Building, P.O. Box 3186 8,333
Main Street
Road Town, Tortola
British Virgin Islands
WITH COPIES TO:
Dekel and Nurit Golan
c/o Mada Management & Holdings Ltd.
8 Rishonim Street
Tel Aviv, Israel 65145
</TABLE>
<PAGE>
Exhibit C
APEX SILVER MINES LIMITED
CALEDONIAN HOUSE, MARY STREET
GEORGE TOWN, GRAND CAYMAN
CAYMAN ISLANDS
March 21, 1997
Dear Investor:
Reference is made to the terms of that certain Shareholders' Agreement (the
"Agreement") dated as of August 6, 1996 by and among Apex Silver Mines Limited
(the "Company"), you (or your organization, as applicable), and certain other
shareholders of the Company or Apex Silver Mines LDC.
The Company has determined that it is in its best interests to have the
flexibility to increase or decrease the size of its board of directors.
Therefore, the parties to the Agreement agree as follows:
1. All defined terms used herein and not otherwise defined are as defined
in the Agreement.
2. Section 2(c) of the Agreement is hereby amended by designating such
section 2(d) and substituting the following as Section 2(c):
"(c) Notwithstanding anything else contained in Sections 2(a) or 2(b) to
the contrary, the Board shall have the authority to increase or decrease the
size of the Board (and fill any vacancy occurring from such increase) so long as
each of the Consolidated Representatives, the Litani Representative and the
Silver Holdings Representatives approves such increase or decrease and any such
new director. To the extent Litani has not exercised such right then the
Consent of Litani shall be required."
3. Except as so modified, the Agreement is hereby ratified and confirmed
in all respects.
APEX SILVER MINES LIMITED
Thomas S. Kaplan
Chairman
APPROVED AND AGREED TO AS OF THE DATE FIRST WRITTEN ABOVE.
- ----------------------------------------------------------
By:
----------------------------
Name:
Title:
PLEASE FAX SIGNED CONSENT TO: AKIN, GUMP STRAUSS, HAUER & FELD, L.L.P.
ATTENTION: STEPHEN CULHANE, ESQ.
FACSIMILE NO.: (212) 872-1002
