-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GBXnxr9woQFwJVVMnwmH2jux/6SBQCfdvThXcqXNnR6/PaOmBsnBFqf5CE3ox91p vqFDc/+5Qn0ey0Kuw9HIvQ== 0000899140-97-000766.txt : 19971208 0000899140-97-000766.hdr.sgml : 19971208 ACCESSION NUMBER: 0000899140-97-000766 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19971205 SROS: AMEX GROUP MEMBERS: LOUIS M. BACON GROUP MEMBERS: MOORE CAPITAL MANAGEMENT INC /NEW GROUP MEMBERS: MOORE GLOBAL INVESTMENTS, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: APEX SILVER MINES LTD CENTRAL INDEX KEY: 0001011509 STANDARD INDUSTRIAL CLASSIFICATION: SILVER ORES [1044] IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-52021 FILM NUMBER: 97733114 BUSINESS ADDRESS: STREET 1: CALEDONIAN HOUSE GROUND FL GEORGETOWN CITY: GRAND CAYMAN CAYMAN STATE: E9 BUSINESS PHONE: 3499490050 MAIL ADDRESS: STREET 1: CALEDONIAN HOUSE MARY STREET STREET 2: GEORGE TOWN GRAND CAYMAN ISLAND BWI FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MOORE CAPITAL MANAGEMENT INC /NEW CENTRAL INDEX KEY: 0000924178 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 1251 AVENUE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10020 BUSINESS PHONE: 2127827325 MAIL ADDRESS: STREET 1: 1251 AVENUE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10020 SC 13D 1 SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 APEX SILVER MINES LIMITED --------------------------------------- (Name of Issuer) Ordinary Shares, $.01 par value ----------------------------------------------------------------- (Title of Class of Securities) GO474 10 3 ----------------------------------------------------------------- (CUSIP Number) Stephen R. Nelson, Esq. Moore Capital Management, Inc. 1251 Avenue of the Americas New York, New York 10020 (212) 782-7102 ----------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 1, 1997 ----------------------------------------------------------------- (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 [ ]. 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 2 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 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 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 5 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 6 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 7 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 8 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 9 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. 10 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 11 Schedule I - ---------- (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 12 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 13 EX-99 2 JOINT FILING AGREEMENT Exhibit A --------- 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 EX-10.1 3 SHAREHOLDERS' AGREEMENT 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. "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: -2- (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. -3- (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- (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- 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- 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- (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- 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- 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- 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- * * * * * 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- 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 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 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 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 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 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 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 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 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
SCHEDULE A - ----------------------------------------------------------------------------------------------------- NUMBER NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES - ---------------------------------------- ------------------------------------------ -------------- 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
SCHEDULE A - ----------------------------------------------------------------------------------------------------- NUMBER NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES - ---------------------------------------- ------------------------------------------ -------------- 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
SCHEDULE A - ----------------------------------------------------------------------------------------------------- NUMBER NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES - ---------------------------------------- ------------------------------------------ -------------- 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
SCHEDULE A - ----------------------------------------------------------------------------------------------------- NUMBER NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES - ---------------------------------------- ------------------------------------------ -------------- 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
SCHEDULE A - ----------------------------------------------------------------------------------------------------- NUMBER NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES - ---------------------------------------- ------------------------------------------ -------------- 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
SCHEDULE A - ----------------------------------------------------------------------------------------------------- NUMBER NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES - ---------------------------------------- ------------------------------------------ -------------- 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
SCHEDULE A - ----------------------------------------------------------------------------------------------------- NUMBER NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES - ---------------------------------------- ------------------------------------------ -------------- 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
SCHEDULE A - ----------------------------------------------------------------------------------------------------- NUMBER NAME OF PURCHASER ADDRESS OF PURCHASER OF SHARES - ---------------------------------------- ------------------------------------------ -------------- 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
EX-10.2 4 FORM OF CONSENT 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 -----END PRIVACY-ENHANCED MESSAGE-----