LEWIS v WARD - Legal Case Documents


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Keywords & Phrases

CaseNo: C.A. No. 15,255, CourtCode: CC, CourtName: IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE, Plaintiff: LEWIS, State: DE Delaware, UniqueCaseRef: DE>CC>00015255, Merger, Standing, Amax, Kinross, Motion, Complaint, Gold, Cyprus, Kinross Merger, Dismiss, Stock, Shares, Amended Complaint, Discovery, Loan, Lewis, Allegation, Fort Knox, Derivative Action, Delaware, Fraud, Financing, Cyprus Amax, Anderson, Stockholders, Compl, Alleges, Del, Facts, Market, Demand, Equity, Directors, Supr, Amax Gold, Esquire, Suite, Stockholder, Exceptions, Taylor, Common, Cost, Agreement, Loan Facility, Kramer, Asserts, Chancery, Kimoss, Minerals Company, Troy Ounces , ContentID: 120240997

Case Documents

DEFENDANTS OPENING BRIEF IN SUPPORT OF MOTION TO DISMISS
[ see first page and extracted highlights below ] ItemID: 115566

AMENDED COMPLAINT
[ see first page and extracted highlights below ] ItemID: 102222

DEFENDANTS REPLY BRIEF IN SUPPORT OF MOTIONS TO DISMISS
[ see first page and extracted highlights below ] ItemID: 103356

PLAINTIFFS BRIEF IN OPPOSITION TO MOTION TO DISMISS AND MOTION TO STAY DISCOVERY
[ see first page and extracted highlights below ] ItemID: 103357

Total Documents: 4 documents , 40 pages

Price: $ 34.95

IVESLCD01 KGI0001

1 . DEFENDANTS OPENING BRIEF IN SUPPORT OF MOTION TO DISMISS

EXTRACTED KEY WORDS

PLAINTIFF
KINROSS
AMAX
COMPLAINT
STANDING
AMENDED COMPLAINT
COMPL
ALLEGES
DEFENDANTS
ALLEGATION
SHARES
MOTION
DISMISS
FRAUD
COURT
GOLD
STOCKHOLDER
STOCK
EXCEPTIONS
LEWIS
ANDERSON
KIMOSS
OPINION
TRIANGULAR
DELAWARE
HERETO
EFFECTUATING
FACTS
PLEADING

                                                                           \  I            I..
                IN THE COURT OF CHANCERY OF THE STATE OF  1;ELAWARE

                                IN AND FOR NEW CASTLE COUNTY

SHIRLEY LEWIS,

                         Plaintiff,

         V.                                                                           _-
                                                                                    ? .'          .
                                                                                                   
MILTON H. WARD, ALLEN BORN,                                   Civil Action No. 15255 --            
GERALD  J.  MALYS,  ROCKWELL A.                                                                    
                                                                                                   
SCHNABEL, VERNON F. TAYLOR, JR.,                    :
RUSSELL L. WOOD, CYPRUS  AMAX
MINERALS COMPANY, and  AMAX  GOLD,                  :
INC.,

                         Defendants.


                                DEFENDANTS' OPENING  BRIEF  IN
                           SUPPORT OF THEIR MOTIONS TO  DISMISS


MORRIS, NICHOLS, ARSHT  & TUNNELL           YOUNG,  CONAWAY, STARGA'M  & TAYLOR
Kenneth J. Nachbar                          David C. McBride:
1201 N. Market Street                       James P. Hughes, Jr.
P.O. Box 1347                               Suite 1100, Rodney Square North
Wilmington, DE 19899-1347                   P.O. Box 391
(302) 658-9200                              Wilmington, DE 19899
 Attorneys for Vernon F. Taylor, Jr.        (302) 571-6639
and Russell L. Wood                          Attorneys for Milton H. Ward, Allen Born
                                             and Gerald L. Malys

REED, SMITH, SHAW  & MCCLAY, LLP            BOUCHARD MARGULES  & FRIEDLANDER
Thomas P. Preston                           Joel E. Friedlander
Suite 1500, 1201 N.  Market Street          222 Delaware Avenue, Suite 1102
P.O. Box 195                                Wilmington, DE 19801
Wilmington, DE 19899                        (302) 573-3500
(302) 778-7500                               Attorneys for Cyprus Amax Minerals Company
 Attorneys for Amax Gold, Inc.



March 30, 2001

SUPPORT OF THEIR MOTIONS TO DISMISS

Attorneys for Amax Gold, Inc.

PLAINTIFF LACKS STANDING TO PROSECUTE THIS CASE.

Lewis v. Anderson,

P:laintiff, a purported stockholder of Amax Gold, Inc. ("Amax" or the

Defendants answered the Complaint, denying its

Kinross Gold Corporation (the "Kinross Merger").

A and Es hereto; Am. Compl.

and all of publicly owned shares of Amax were converted into the right to receive

On August 28, 2000, the Court issued a letter opinion granting defendants'

exceptions to && v. Anderson described herein.

I The Court may take judicial notice of the Certificate of Merger tiled with the Delaware

A hereto) and the Information Statement, which is expressly referred to in the Amended

Complaint further alleges that the cost overruns required additional financing.

Kimoss was traded on the New York arrd Toronto stock exchanges and had assets of $461 million

"merger of equals," and that it was structured as a triangular rnerger (i', a merger of Amax

plaintiff alleges no facts to support this conclusory pleading.

recognize two exceptions to the foregoing "loss of standing" rule.

The legal determinations set forth in the August 28 Opinion are the law of the case and

Merger is subject to a claim of fraud because it was allegedly perpetuated merely to deprive

make such an allegation, however.

plaintiffs have not attempted to meet that pleading standard.

2 . AMENDED COMPLAINT

EXTRACTED KEY WORDS

GOLD
LOAN
FORT KNOX
FINANCING
PLAINTIFF
MARKET
STOCK
DEMAND
DELAWARE
DEFENDANTS
DIRECTORS
ESQUIRE
SUITE
TAYLOR
AMENDED COMPLAINT
COMMON
STOCKHOLDERS
KINROSS
COST
AGREEMENT
LOAN FACILITY
CYPRUS AMAX
TROY OUNCES
MANAGEMENT
FINANCING ARRANGEMENT
EQUITY
MERGER
MARKET PRICE
LIBOR PLUS

                                 ORIGINAL                                ,.`.,     `.,



        IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
                        IN AND FOR NEW CASTLE COUNTY

--.---------------------------..-----x
SHIRLEY LEWIS,

                  Plaintiff,

                  V.                                Civil Action No. 15255 NC

MILTON H. WARD, ALLEN BORN, GERALD :
J. MALYS, ROCKWELL A. SCHNABEX,,
VERNON F. TAYLOR, JR., RUSSELL L. :
WOOD, CYPRUS  AMAX MINERALS
COMPANY, and AMAX GOLD INC.,

                  Defendants.
                                             X

                   NOTICE OF  FILXNG AMENDED COMPLAINT  '

TO:                Kenneth J.  Nachbar, Esquire                 1. _.
                   Morris Nichols Arsht  & Tunnel1                 -.
                   1201 N. Market Street
                   Wilmington,  Dertaware         19899

                   Thomas P. Preston, Esquire
                   Reed Smith Shaw & McClay L,LP
                   Suite 1500, 1201 N. Market Street
                   Wilmington, Delaware           19899

                   David C. McBride, Esquire
                   Young  Conaway Stargatt  & Taylor
                   Suite 1100, Rodney Square North
                   Wilmington,  De:Laware         19899

                   Joel E. Friedlander, Esquire
                   Bouchard  Margutes  & Friedlander
                   Suite 1102, 222 Delaware Avenue
                   Wilmington, Delaware           19899

           PLEASE TAKE NOTICE  that plaintiff herewith files the

attached Amended Complaint pursuant to leave the Court granted in

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

COMPANY, and AMAX GOLD INC.,

NOTICE OF FILXNG AMENDED COMPLAINT '

Thomas P. Preston, Esquire

Suite 1500, 1201 N. Market Street

Young Conaway Stargatt & Taylor

Suite 1100, Rodney Square North

PLEASE TAKE NOTICE that plaintiff herewith files the

of Kinross Gold Corporation,

stock was traded on the New '?ork Stock lzxchange and the Toronto

its common stock is owned by Kinross.

seven directors were officers and/or directors of Cyprus.

and probable reserves is its 100 per cent interest in the Fort Knox

and probable reserves in the mine were 4,094,OOO Troy ounces as of

the Company's annual gold production and average cost per Troy

affected by the market price of gold.

Bank, and LaSalle National Trust, N.A. (the "Loan Agreement").

the Company's financing situation at the February 1996 board

the Company's management reported to

annual interest rate of LIBOR plus 3.25%.

additional financing (the "Demand Loan Facility") under the

the Demand Loan Facility would expire on

best interest of the Company to proceed with the Financing Arrangement,

public stockholders their proportionate share of that success.

the benefits of an equity investment without much of the risk.

THE SUHSEQUENT MERGER

3 . DEFENDANTS REPLY BRIEF IN SUPPORT OF MOTIONS TO DISMISS

EXTRACTED KEY WORDS

MERGER
KINROSS MERGER
STANDING
AMAX
DISCOVERY
LEWIS
DEFENDANTS
MOTION
DISMISS
KRAMER
COMPLAINT
ASSERTS
ANDERSON
FRAUD
COURT
CYPRUS AMAX
AMAX GOLD
WESTERN PACIFIC INDUSTRIES
DEL
SHARES
ALLEGE
ALLEGATION
MINERALS COMPANY
SUPPORT
PROSECUTE
DERIVATIVE ACTION
SUPR
STOCK
PLAINTIFFS OWNERSHIP

                                                                                              ;3 `9
                  IN  THE COURT  OF CHANCERY  OF THE STATE OF DELAWARE

                                  IN AND FOR NEW CASTLE  COUNTY

HARRY  LEWIS,

                           PlainlifT,



MILTON  H. WARD, ALLEN BORN,                                      Civil Action No. 1525.5
GERALD  J. MALYS,  ROCKWELL  A.
SCHNABEL   VERNON  F. TAYLOR,  JR.,
RUSSELL  L. WOOD, CYPRUS  AMAX
MINERALS  COMPANY, and AMAX GOLD,
INC.,

                           Defendants.


                                    DEFENDANTS'  REPLY  BRIEF  IN
                             SUPPORT
                            -~  OF THEIR MOTIONS  TO DISMISS


MORRIS,  NICIIOLS,  ARSH'T & TUNNEL1           YOUNG,  COI\AWAY.  STARGATT & TAYLOR
Kenneth J. Nachbar                             David C. McBride
1201  N.  Market Street                        James  P. Hughes, Jr.
P.O. Box 1347                                  Suite 1100, Rodney Square North
LVilmington,  DE  19899.1345                   P.O. Box 391
(302) 658-9200                                 Wilmington,  DE  19899
 Attorneys for Vernon F. Taylor, Jr.           (302)  571-6639
and Russell  L. Wood                            Attorneys for Milton H. Ward, Allen Born
                                                and Gerald  I,. Malys

REI:D. SXlITII. SHAW & MCCJ.AY, LLP            BOUCHARD MARCULtS  & FRIEDLANDER
Thomas P.  Preston                             Joel E. IQ-iedlander
Suite 1500,  1201 N.  Market Street            222 Delaware Avenue, Suite  1 102
P.O. Box 195                                   Wilmington,  DE  19801
lVilmlngton,  DE  19899                        (302) 573-3500
(302) 778-7500                                  Attorneys for Cyprus Amax Minerals Company
 Attorneys for Amax Gold, Inc.


April  14, 2000

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

MINERALS COMPANY, and AMAX GOLD,

-~ OF THEIR MOTIONS TO DISMISS

PLAINTIFF LACKS STANDING TO PROSECUTE THIS CASE.

Lewis v. Anderson,

This stockholders' derivative action challenges a loan made by Cyprus Amax

Minerals Company to Amax Gold,

Kinross Gold Corporation (the "Kinross Merger").

Indeed, plaintiff concedes that the Kinross Merger, on its face, deprived plaintiff of

Motion to Stay Discovery at 4.

Plaintiff asserts as his principal argument, however, that:

Under Kramer v.

Western Pacific Industries, Inc., Del.

A.2d 348, 354 and Lewis v. Andersoa, Del.

Supr., 477 A.2d

Kinross shares had been converted into Amax shares,

filing of the complaint, it would have been impossible to allege in the complaint that the

Plaintiff mischaractcrizes Lewis v. Anderson and Kramer v.

plaintiffs ownership of shares Iof the company for whose benefit he has sued terminates

cases recognize two exceptions to the general rule that loss of one's stock as a result of a

Where the merger itself is the subject of a claim of fraud,

Plaintiffs sole support for this claim is his

plaintiff must allege that the Kinross Merger was the product of "fraud," in that defendants

there is no allegation that the purpose of the Kinross Merger - - a

PLAINTIFF SHOULD NOT BE GRANTED DISCOVERY.

4 . PLAINTIFFS BRIEF IN OPPOSITION TO MOTION TO DISMISS AND MOTION TO STAY DISCOVERY

EXTRACTED KEY WORDS

MOTION
AMAX
STANDING
PLAINTIFF
DISCOVERY
DERIVATIVE ACTION
DEFENDANTS
DISMISS
COURT
CHANCERY
FACTS
DEL
KINROSS
STOCKHOLDERS
BAR
COUNSEL
INTENT
SUPR
COMPLAINT
SHARES
EQUITY
COMBINED ENTITY
LEWIS
CYPRUS AMAX
MINERALS COMPANY
AMAX GOLD
COMMENCEMENT
PARENT
RESPONSES

        IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
                          IN AND FOR NEW CASTLE COUNTY
                                         X
HARRY LEWIS,
                         Plaintiff,

                   V.                           C.A. No. 15255
MILTON H. WARD, ALLEN BORN,
GERALD J. MALYS, ROCKWELL A. :
SCHNABEL, VERNON F. TAYLOR, JR.,:
RUSSELL L. WOOD, CYPRUS  AMAX  :
MINERALS COMPANY, and
AMAX GOLD INC.,
                         Defendants. .i

                         PLAINTIFF'S BRIEF IN OPPOSITION           " ,.
                            TO MOTION TO DISMISS AND               : :_
                            MOTION TO STAY DISCOVERY                  -.



                                       ROSENTHAL MONHAIT GROSS & GODDESS,
                                              P.A.
                                       Norman M. Monhait
                                       Suite 1401, Mel.lon Bank Center
                                       919 N. Market Street
                                       P.O. Box 1070
                                       Wilmington, DeIaware 19899
                                       (302) 656-4433
                                       Attorneys for E'laintiff
OF COUNSEL:
A. ARNOLD GERSHON, P.C.
295 Madison Avenue
New York, NY 10017

February 16, 2000



                                  TABLE  OF  CONTENTS

                                                                       Paqe
TABLE OF CITATIONS                                                       ii
NATURE AND STAGE OF THE PROCEEDINGS
STATEMENT OF FACTS
ARGUMENT
              I.     THE MOTION TO DISMISS  SHOULjD BE
                     DENIED,       FOR     THE       MERGER    WAS
                     INTENTIONALLY               STRUCTURED     TO

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

AMAX GOLD INC.,

OF COUNSEL: A. ARNOLD GERSHON,

NATURE AND STAGE OF THE PROCEEDINGS STATEMENT OF FACTS ARGUMENT

THE MOTION TO STAY DISCOVERY SHOULD

MERGER WAS INTENTIONALLY STRUCTURED

Western Pacific Industries, Inc., Del.

Supr., 546 A.2d 348 Lewis v. Anderson, Del.

This stockholder's derivative action was brought on behalf of Amax Gold Inc. against its

As a result of the merger, plaintiff and the other Amax common stockholders became

the defendants at bar moved to dismiss.

Plaintiff's position is that the merger was structured specifically for the purpose of

merger contemplated that Amax would become a subsidiary of Kinross, and the common

the merger proxy statement discloses that Kinross's contribution to the combined entity

At bar, plaintiff asserts that the merger was given its structure in order to eliminate his

Plaintiff has two responses.

it would have been impossible to make such an allegation in the complaint.

denominated as a motion to dismiss, it is in reality a motion for summary judgment, for it

Plaintiff submits that the defendants' intent in making Kinross the parent in a merger agreed


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