NEW BRUNSWICK NOUVEAU-BRUNSWICK
BUSINESS CORPORATIONS ACT LOI SUR LES CORPORATIONS COMMERCIALES
FORM 3 FORMULE 3
ARTICLES OF AMENDMENT STATUTS DE MODIFICATION
(SECTION 26, 116) (ARTICLE 26, 116)
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1-Name of Corporation - 2-Corporation No.-Numero de la corporation
Raison sociale de la corporation
COEUR D'ALENE CANADIAN ACQUISITION
CORPORATION
613417
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3-The articles of the above- Les statuts de la corporation
mentioned corporation are mentionnee ici sont modifies comme suit:
amended as follows:
THE ARTICLES ARE AMENDED AS SET OUT IN THE ATTACHED SCHEDULE "A"
_______________________________________________________________________________
Date Signature Description of Office -
Description du bureau
August 12, 2004 / Dennis T. Wheeler / President
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FOR DEPARTMENTAL USE ONLY Filed-Depose
RESERVE AU SEUL USAGE DU MINISTERE
_________________________________
45-5031 (6/01)
COEUR D'ALENE CANADIAN ACQUISITION CORPORATION
(herein referred to as the "Corporation")
THIS IS SCHEDULE "A" TO THE FOREGOING FORM 3 UNDER THE NEW
BRUNSWICK BUSINESS CORPORATIONS ACT
The Articles of the Corporation are amended as follows:
1. Section 3 of Form 1 is deleted in its entirety and the following
substituted therefore "None",
2. Section 4 of Schedule B to Form 1 is deleted in its entirety,
3. The authorized capital of the Corporation is increased by the creation of
(i) an unlimited number of exchangeable shares without par value
("Exchangeable Shares") and an unlimited number of special shares without
par value ("Special Shares") so that the Corporation is authorized to
issue an unlimited number of Exchangeable Shares, an unlimited number of
Special Shares, an unlimited number of common shares without par value
("Common Shares") and an unlimited number of Class A preference shares
without par value issuable in series ("Class A Preference Shares") having
the rights, privileges, restrictions and conditions set out in Appendix A
Attached.
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APPENDIX A
1. COMMON SHARES
The Common Shares shall carry and be subject to the following rights,
privileges, restrictions and conditions, namely:
(a) The holders of Common Shares are entitled to receive notice of any
meeting of the shareholders of the Corporation and to attend and
vote thereat except those meetings where only holders of a specified
class or particular series of shares are entitled to vote and each
holder thereof shall be entitled to One (1) vote per share in person
or by proxy.
(b) Subject to the rights, privileges, restrictions and conditions
attaching to any other shares of the Corporation, the holders of the
Common Shares are entitled to receive any dividend declared and paid
by the Corporation.
(c) Subject to the rights, privileges, restrictions and conditions
attaching to any other shares of the Corporation in the event of the
liquidation, dissolution or winding-up of the Corporation, the
holders of the Common Shares are entitled to receive the remaining
property of the Corporation after payment of all of the
Corporation's liabilities.
(d) The rights, privileges, restrictions and conditions attaching to the
Common shares as a class may be added to, changed or removed but
only with the approval of the holders of the Common shares given as
hereinafter specified.
2. CLASS A PREFERENCE SHARES
The Class A Preference Shares, as a class, shall carry and be subject to the
following rights, privileges, restrictions and conditions, namely:
(a) The board of directors of the Corporation may issue the Class A
Preference Shares at any time and from time to time in one or more
series. Before the first shares of a particular series are issued,
the board of directors of the Corporation shall fix the number of
shares in such series and shall determine, subject to the
limitations set out in the articles, the designation, rights,
privileges, restrictions and conditions to be attached to the shares
of such series including, without limitation, the rate or rates,
amount or method or methods of calculation of dividends thereon, the
time and place of payment of dividends, whether cumulative or
non-cumulative or partially cumulative and whether such rate, amount
or method of calculation shall be subject to change or adjustment in
the future, the currency or currencies of payment of dividends, the
consideration and
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the terms and conditions of any purchase for cancellation,
retraction or redemption rights (if any), the conversion or exchange
rights attached thereto (if any), the voting rights attached thereto
(if any), and the terms and conditions of any share purchase plan or
sinking fund with respect thereto. Before the issue of the first
shares of a series, the board of directors of the Corporation shall
send to the Director (as defined in the (as the same may from time
to time be amended, reenacted or replaced) articles of amendment
containing a description of such series including the designation,
rights, privileges, restrictions and conditions determined by the
board of directors of the Corporation.
(b) No rights, privileges, restrictions or conditions attached to a
series of Class A Preference Shares shall confer upon a series a
priority in respect of dividends or return of capital over any other
series of Class A Preference Shares then outstanding. The Class A
Preference Shares shall be entitled to priority over the Common
Shares and over any other shares of the Corporation ranking junior
to the Class A Preference Shares with respect to priority in the
payment of dividends and the distribution of assets in the event of
the liquidation, dissolution or winding-up of the Corporation,
whether voluntary or involuntary, or any other distribution of the
assets of the Corporation among its shareholders for the purpose of
winding-up its affairs. If any cumulative dividends or amounts
payable on a return of capital in respect of a series of Class A
Preference Shares are not paid in full, the Class A Preference
Shares of all series shall participate rateably in respect of such
dividends, including accumulations, if any, in accordance with the
sums that would be payable on such shares if all such dividends were
declared and paid in full, and in respect of any repayment of
capital in accordance with the sums that would be payable on such
repayment of capital if all sums so payable were paid in full;
provided however, that in the event of there being insufficient
assets to satisfy in full all such claims to dividends and return of
capital, the claims of the holders of the Class A Preference Shares
with respect to repayment of capital shall first be paid and
satisfied and any assets remaining thereafter shall be applied
towards the payment and satisfaction of claims in respect of
dividends. The Class A Preference Shares of any series may also be
given such other preferences, not inconsistent with subparagraphs
(a) to (d) hereof, over the Common Shares and over any other shares
ranking junior to the Class A Preference Shares as may be determined
in the case of such series of Class A Preference Shares.
(c) Except as hereinafter referred to or as otherwise required by law or
in accordance with any voting rights which may from time to time be
attached to any series of Class A Preference Shares, the holders of
the Class A Preference Shares as a class shall not be entitled as
such to receive notice of, to attend or to vote at any meeting of
the shareholders of the Corporation.
(d) The rights, privileges, restrictions and conditions attaching to the
Class A Preference Shares as a class may be added to, changed or
removed but only with the approval of the holders of the Class A
Preference Shares given as hereinafter specified.
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(e) The approval of the holders of Class A Preference Shares to add to,
change or remove any right, privilege, restriction or condition
attaching to the Class A Preference Shares as a class or to any
other matter requiring the consent of the holders of the Class A
Preference Shares as a class may be given in such manner as may then
be required by law, subject to a minimum requirement that such
approval shall be given by resolution passed by the affirmative vote
of at least two-thirds of the votes cast at a meeting of the holders
of Class A Preference Shares duly called for that purpose. The
formalities to be observed in respect of the giving of notice of any
such meeting or any adjourned meeting and the conduct thereof shall
be those from time to time required by the Business Corporations Act
(as the same from time to time amended, reenacted or replaced) and
prescribed in the by-laws of the Corporation with respect to
meetings of shareholders. On every poll taken at a meeting of
holders of Class A Preference Shares as a class, each holder
entitled to vote thereat shall have one vote in respect of each One
Dollar ($1.00) of the issue price of each Class A Preference Share
held by him. One or more shareholders entitled to vote at the
meeting holding or representing, in total, at least one-third of the
issued preference shares shall constitute a quorum for any meeting
of the holders of the Class A Preference Shares to consider any
variation in the rights privileges, restrictions or conditions
attaching to the Class A Preference Shares in accordance with this
paragraph 1(d).
3. SPECIAL SHARES
The Special Shares shall carry and be subject to the following rights,
privileges, restrictions and conditions, namely:
(a) NON-VOTING. Subject to the provisions of the Act or as otherwise
expressly provided herein, the holders of the Special Shares shall
not as such be entitled to receive notice of, nor to attend or vote
at meetings of the shareholders of the Corporation.
(b) DIVIDENDS. The holders of the Special Shares shall in each fiscal
year of the Corporation in the discretion of the directors, but
always in preference and priority to any payment of dividends on the
Common Shares or any other class of shares ranking junior to the
Special Shares, for such fiscal year be entitled to non-cumulative
dividends in such amount, if any, as may be fixed by the directors
for that fiscal year provided however that the amount of such
dividends in any particular fiscal year shall be fixed by the
directors within 90 days following the commencement of such fiscal
year and if no amount shall be so fixed or if the directors resolve
not to fix any dividends on the Special Shares, no dividend shall be
payable on the Special Shares in that fiscal year; if in any fiscal
year, after providing for the full dividend, if any, so fixed on the
Special Shares, there shall remain any profits or surplus available
for dividends, such profits or surplus, or any part thereof, may, in
the discretion of the directors, be applied to dividends on the
Common Shares or any other class of shares ranking junior to the
Special Shares; the holders of the Special Shares shall not be
entitled to any dividends other than or in excess of the
non-cumulative dividends in the amount hereinbefore provided for.
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(c) LIQUIDATION, ETC. In the event of the liquidation, dissolution or
winding-up of the Corporation, whether voluntary or involuntary, or
other distribution of assets of the Corporation among shareholders
for the purpose of winding-up its affairs, the holders of the
Special Shares shall be entitled to receive for each Special Share,
in preference and priority to any distribution of the property or
assets of the Corporation to the holders of the Common Shares or to
any other shares ranking junior to the Special Shares, an amount
equal to the Special Share Redemption Amount, but shall not be
entitled to share any further in the distribution of the property or
assets of the Corporation. The Special Shares shall rank equally
with the Exchangeable Shares with respect to the distribution of
property or assets upon the liquidation, dissolution or winding-up
of the Corporation and if any amounts payable upon the liquidation,
dissolution or winding-up are not paid in full, the Special Shares
and the Exchangeable Shares shall participate rateably in respect of
such amounts in accordance with the sums that would be payable if
all sums so payable were paid in full.
(d) REDEMPTION BY HOLDER. In the event that both (i) the common shares
of Coeur d'Alene Mines Corporation and (ii) the Exchangeable Shares
of the Corporation are no longer listed for trading on a stock
exchange in Canada, a holder of Special Shares shall be entitled to
require the Corporation to redeem at any time all, or from time to
time any part, of the Special Shares registered in the name of such
holder by tendering to the Corporation at its registered office the
share certificate(s) representing the Special Shares which the
registered holder desires to have the Corporation redeem together
with a request in writing specifying the number of Special Shares
which the registered holder desires to have redeemed by the
Corporation and the business day (in this paragraph referred to as
the "Redemption Date") on which the holder desires to have the
Corporation redeem such Special Shares. Upon receipt of the share
certificate(s) representing the Special Shares which the registered
holder desires to have the Corporation redeem together with such a
request, the Corporation shall on, or at its option, before, the
Redemption Date redeem such Special shares by paying to the
registered holder thereof, for each share to be redeemed, an amount
equal to the Special Share Redemption Amount in respect thereof;
such payment shall be made by cheque payable at par at any branch of
the Corporation's bankers for the time being in Canada. The said
Special Shares shall be deemed to be redeemed on the date of payment
of the Special Share Redemption Amount and from and after such date
such Special Shares shall cease to be entitled to dividends and the
holders thereof shall not be entitled to exercise any of the rights
of the holders of Special Shares in respect thereof. Notwithstanding
the foregoing, the Corporation shall only be obliged to redeem
Special Shares so tendered for redemption to the extent that such
redemption would not be contrary to any applicable law, and if such
redemption of any such Special Shares would be contrary to any
applicable law, the Corporation shall only be obliged to redeem the
maximum number of such Special Shares (rounded to the next lower
number) to the extent that the moneys applied thereto shall be such
amount (rounded to the next lower multiple of one hundred dollars
($100.00)) as would not be contrary to such law, in which case the
Corporation shall pay to each holder his pro rata share of the
purchase moneys
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allocable. If less than all of the Special Shares represented by any
certificate be redeemed, a new certificate for the balance shall be
issued.
(e) SPECIAL SHARE REDEMPTION AMOUNT. For the purposes of the foregoing
paragraph (d), the "Special Share Redemption Amount" of each Special
Share shall be One Canadian Dollar (Cdn$1.00) plus all declared and
unpaid dividends thereon.
(f) AUTOMATIC CONVERSION. Effective 12:00 noon (Atlantic time) on the
day immediately following the day of issuance of the Special Shares
(the "Effective Time"), all of the issued and outstanding Special
Shares shall automatically convert into Exchangeable Shares in the
capital of the Corporation on the basis of one Exchangeable Share
for each Special Share converted. The holders of the Special Shares
so converted will not be entitled to any adjustment of dividends on
such Special Shares or the Exchangeable Shares issuable on
conversion. The conversion of the Special Shares shall be deemed to
take effect immediately upon the Effective Time without the
requirement of any notice to the holders of the Special Shares so
converted and thereafter any certificate or certificates
representing the Special Shares so converted shall be deemed to
evidence the Exchangeable Shares into which such Special Shares were
converted and upon request by the Corporation shall forthwith be
returned to the Corporation at the Corporation's principal address
following which the Corporation shall issue a certificate for
Exchangeable Shares.
(g) CANCELLATION OF AUTHORIZED SHARES. Upon the conversion of all of the
issued and outstanding Special Shares in accordance with paragraph
(f), all authorized Special Shares, whether issued or unissued,
shall be cancelled and no further Special Shares shall be issued by
the Corporation.
(h) NO CHANGE. No change to any of the provisions of paragraphs (a) to
(g) or of this paragraph (h) shall have any force or effect until it
has been approved by a majority of not less than two-thirds (2/3) of
the votes cast by the holders of the Special Shares, voting
separately as a class at a meeting of such holders specially called
for that purpose, or by a resolution in writing signed by all the
holders of the Special Shares, in addition to any other approval
required by the Act.
4. EXCHANGEABLE SHARES
The Exchangeable Shares shall carry and be subject to the rights, privileges,
restrictions and conditions set out in Appendix A.1.
EXHIBIT
APPENDIX A.1
EXCHANGEABLE SHARES
The rights, privileges, restrictions and conditions attaching to the
Exchangeable Shares are as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
For the purposes of these share provisions, unless something in the
subject matter or context is inconsistent therewith:
"BOARD OF DIRECTORS" means the board of directors of the Corporation.
"BUSINESS DAY" means any day other than a Saturday, Sunday, a public
holiday or a day on which commercial banks are not open for business in
Toronto, Ontario or New York, New York under applicable law.
"CANADIAN DOLLAR EQUIVALENT" means in respect of an amount expressed in a
currency other than Canadian dollars (the "FOREIGN CURRENCY AMOUNT") at
any date the product obtained by multiplying:
(a) the Foreign Currency Amount; by
(b) the noon spot exchange rate on such date for such foreign currency
expressed in Canadian dollars as reported by the Bank of Canada or,
in the event such spot exchange rate is not available, such spot
exchange rate on such date for such foreign currency expressed in
Canadian dollars as may be deemed by the Board of Directors to be
appropriate for such purpose.
"COEUR" means Coeur d'Alene Mines Corporation, a company existing under
the laws of Idaho, and any successor corporation or successor registrant
under the Securities Act of 1933.
"COEUR CALL NOTICE" has the meaning ascribed thereto in Section 6.2(2).
"COEUR COMMON STOCK" means the shares of common stock of Coeur, par value
US$1.00 per share, having voting rights of one vote per share, and any
other securities into which such shares may be changed or for which such
shares may be exchanged (whether or not Coeur shall be the issuer of such
securities) or any other consideration which may be received by the
holders of such shares pursuant to a recapitalization, reconstruction,
reorganization or reclassification of, or amalgamation, merger,
liquidation or similar transaction affecting, such shares.
"COEUR DIVIDEND DECLARATION DATE" means the date on which the board of
directors of Coeur declares any dividend or other distribution on the
shares of Coeur Common Stock.
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"COEUR ULC" means Coeur d'Alene Acquisition ULC, a wholly-owned subsidiary
of Coeur, existing under the laws of Nova Scotia.
"COMMON SHARES" means the common shares in the capital of the Corporation.
"CURRENT MARKET PRICE" means, in respect of a share of Coeur Common Stock
on any date, the Canadian Dollar Equivalent of the average closing sales
price (computed and rounded to the third decimal point) on the NYSE during
a period of 20 consecutive trading days ending not more than five trading
days prior to such date or, if the shares of Coeur Common Stock are not
then listed on the NYSE, on such other stock exchange or automated
quotation system on which the shares of Coeur Common Stock are listed or
quoted, as the case may be, as may be selected by the Board of Directors
for such purpose; provided, however, that if in the opinion of the Board
of Directors the public distribution or trading activity of shares of
Coeur Common stock during such period is inadequate to create a market
that reflects the fair market value of a share of Coeur Common Stock, then
the Current Market Price of a share of Coeur Common Stock shall be
determined by the Board of Directors based upon the advice of such
qualified independent financial advisors as the Board of Director may deem
to be appropriate, and provided further that any such selection, opinion
or determination by the Board of Directors shall be conclusive and
binding.
"DIVIDEND AMOUNT" means an amount equal to the full amount of all
dividends and distributions declared and unpaid on each Exchangeable Share
and all dividends and distributions declared on a share of Coeur Common
Stock that have not been declared on each Exchangeable Share in accordance
with Section 3.1, in each case with a record date prior to the effective
date of the purchase, redemption or other acquisition of such Exchangeable
Share pursuant to Articles 5, 6 or 7.
"EXCHANGEABLE SHARES" means the exchangeable shares in the capital of the
Corporation, having the rights, privileges, restrictions and conditions
set forth in these Exchangeable Share Provisions.
"EXCHANGEABLE SHARE PROVISIONS" means the rights, privileges, restrictions
and conditions set out herein.
"LCR EXERCISING PARTY" has the meaning set out in Section 5.2(1).
"LIQUIDATION AMOUNT" has the meaning ascribed thereto Section 5.1(1).
"LIQUIDATION CALL PURCHASE PRICE" has the meaning set out in Section
5.2(1).
"LIQUIDATION CALL RIGHT" has the meaning ascribed thereto in Section
5.2(1).
"LIQUIDATION DATE" has the meaning ascribed thereto in Section 5.1(1).
"NBBCA" means the Business Corporations Act (New Brunswick), as amended.
"NYSE" means the New York Stock Exchange or its successor.
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"PERSON" includes any individual, firm, partnership, limited partnership,
joint venture, venture capital fund, limited liability company, unlimited
liability company, association, trust, trustee, executor, administrator,
legal personal representative, estate, group, body corporate, corporation,
unincorporated association or organization, governmental entity, syndicate
or other entity, whether or not having legal status.
"RCR EXERCISING PARTY" has the meaning set out in Section 6.2(1).
"REDEMPTION CALL PURCHASE PRICE" has the meaning set out in Section
7.2(1).
"REDEMPTION CALL RIGHT" has the meaning ascribed thereto in Section
7.2(1).
"REDEMPTION CR EXERCISING PARTY" has the meaning set out in Section
7.2(1).
"REDEMPTION DATE" means the earlier of (i) the seventh anniversary of the
date on which Exchangeable Shares are first issued; and (ii) the date
established by the Board of Directors for the redemption by the
Corporation of all but not less than all of the outstanding Exchangeable
Shares on which there are fewer than 28,411,008 Exchangeable Shares
outstanding (other than Exchangeable Shares held by Coeur and its
Subsidiaries), and as such number of shares may be adjusted as deemed
appropriate by the Board of Directors to give effect to any subdivision,
combination or consolidation of or stock dividend on the Exchangeable
Shares, any issue or distribution of rights to acquire Exchangeable Shares
or securities exchangeable for or convertible into Exchangeable Shares,
any issue or distribution of other securities or rights or evidences of
indebtedness or assets, or any other capital reorganization or other
transaction affecting the Exchangeable Shares;
"REDEMPTION PRICE" has the meaning ascribed thereto in Section 7.1(1).
"RETRACTED SHARES" has the meaning ascribed thereto in Section 6.1(1).
"RETRACTION CALL PURCHASE PRICE" has the meaning set out in Section
6.2(1).
"RETRACTION CALL RIGHT" has the meaning ascribed thereto in Section
6.2(1).
"RETRACTION DATE" has the meaning ascribed thereto in Section 6.1(1).
"RETRACTION PRICE" has the meaning ascribed thereto in Section 6.1(1).
"RETRACTION REQUEST" has the meaning ascribed thereto in Section 6.1(1).
"SPECIAL SHARES" means the special shares in the capital of the
Corporation.
"SUBSIDIARY" means, when used with reference to Coeur, any corporation
more than 50% of the outstanding stock of which is owned, directly or
indirectly, by Coeur, by one or more other Subsidiaries of Coeur, or by
Coeur and one or more other Subsidiaries of Coeur.
"SUPPORT AGREEMENT" means a support agreement to be entered into prior to
the issuance by the Corporation of any Exchangeable Shares among Coeur,
Coeur ULC and
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the Corporation, the purpose of which will be for Coeur and Coeur ULC to
covenant to do all things reasonably necessary and desirable to enable and
permit the Corporation to perform its obligations hereunder.
"TRANSFER AGENT" means any Person as may from time to time be appointed by
the Corporation as the registrar and transfer agent for the Exchangeable
Shares.
"TRUSTEE" means the trustee chosen by Coeur to act as trustee under the
Voting and Exchange Trust Agreement, being a corporation organized and
existing under the laws of Canada or any Province thereof and authorized
to carry on the business of a trust company in all the provinces of
Canada, and any successor trustee appointed under the Voting and Exchange
Trust Agreement.
"VOTING AND EXCHANGE TRUST AGREEMENT" means the agreement to be entered
into prior to the issuance by the Corporation of any Exchangeable Shares
made between Coeur, the Corporation and the Trustee, the purpose of which
will be to create a trust for the benefit of the registered holders of
Exchangeable Shares that will enable the Trustee to exercise voting rights
on behalf of the holders of Exchangeable Shares similar to those of
holders of Coeur Common Stock.
1.2 SECTIONS AND HEADINGS
The division of these Exchangeable Share Provisions into articles and
sections and the insertion of headings are for reference purposes only and shall
not affect the interpretation of these Exchangeable Share Provisions. Unless
otherwise indicated, any reference in these Exchangeable Share Provisions to an
article or section refers to the specified article or section of these
Exchangeable Share Provisions.
1.3 NUMBER GENDER AND PERSONS
In these Exchangeable Share Provisions, unless the context otherwise
requires, words importing the singular number include the plural and vice versa,
words importing any gender include all genders and words importing persons
include individuals, corporations, partnerships, companies, associations,
trusts, unincorporated organizations, governmental bodies and other legal or
business entities of any kind.
1.4 PAYMENTS
All payments to be made hereunder shall be made without interest and less
any tax required by Canadian law to be deducted and withheld.
1.5 CURRENCY
In these Exchangeable Share Provisions, unless stated otherwise, all
dollar amounts are in Canadian dollars.
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ARTICLE 2
RANKING OF EXCHANGEABLE SHARES
2.1 RANKING
The Exchangeable Shares shall rank equally with the Special Shares and
shall be entitled to a preference over the Common Shares, and any other shares
ranking junior to the Exchangeable Shares with respect to the payment of
dividends as and to the extent provided in Article 3 and with respect to the
distribution of assets in the event of the liquidation, dissolution or
winding-up of the Corporation, whether voluntary or involuntary, or any other
distribution of the assets of the Corporation among its shareholders for the
purpose of winding up its affairs as and to the extent provided in Article 5.
ARTICLE 3
DIVIDENDS
3.1 DIVIDENDS
A holder of an Exchangeable Share shall be entitled to receive and the
Board of Directors shall, subject to applicable law, on each Coeur Dividend
Declaration Date, declare a dividend on each Exchangeable Share:
(a) in the case of a cash dividend or distribution declared on the
shares of Coeur Common Stock, in an amount in cash for each
Exchangeable Share equal to the Canadian Dollar Equivalent of the
cash dividend or distribution declared on each share of Coeur Common
Stock on the Coeur Dividend Declaration Date;
(b) in the case of a stock dividend or distribution declared on the
shares of Coeur Common Stock to be paid in shares of Coeur Common
Stock, by the issue or transfer by the Corporation of such number of
Exchangeable Shares for each Exchangeable Share as is equal to the
number of shares of Coeur Common Stock to be paid on each share of
Coeur Common Stock; or
(c) in the case of a dividend or distribution declared on the shares of
Coeur Common Stock in property other than cash or shares of Coeur
Common Stock, in such type and amount of property for each
Exchangeable Share as is the same as or economically equivalent to
(to be determined by the Board of Directors as contemplated by
Section 2.7 of the Support Agreement) the type and amount of
property declared as a dividend or distribution on each share of
Coeur Common Stock.
Such dividends shall be paid out of the assets of the Corporation properly
applicable to the payment of dividends, or out of authorized but unissued shares
or other securities of the Corporation, as applicable. The holders of
Exchangeable Shares shall not be entitled to any dividends other than or in
excess of the dividends referred to in this Section 3.1.
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3.2 PAYMENT OF DIVIDENDS
Cheques of the Corporation payable at par at any branch of the bankers of
the Corporation shall be issued in respect of any cash dividends or
distributions contemplated by Section 3.1(a) hereof and the sending of such
cheque to each holder of an Exchangeable Share shall satisfy the cash dividend
represented thereby unless the cheque is not paid on presentation. Certificates
registered in the name of the registered holder of Exchangeable Shares shall be
issued or transferred in respect of any stock dividends or other distributions
contemplated by Section 3.1(b) hereof and the sending of such a certificate to
each holder of an Exchangeable Share shall satisfy the stock dividend or other
distribution represented thereby. Such other type and amount of property in
respect of any dividends or distributions contemplated by Section 3.1(c) hereof
shall be issued, distributed or transferred by the Corporation in such manner as
it shall determine and the issuance, distribution or transfer thereof by the
Corporation to each holder of an Exchangeable Share shall satisfy the dividend
or other distribution represented thereby. No holder of an Exchangeable Share
shall be entitled to recover by action or other legal process against the
Corporation any dividend that is represented by a cheque that has not been duly
presented to the Corporation's bankers for payment or that otherwise remains
unclaimed for a period of six years from the date on which such dividend was
payable.
3.3 RECORD AND PAYMENT DATES
The record date for the determination of the holders of Exchangeable
Shares entitled to receive payment of, and the payment date for, any dividend or
distribution declared on the Exchangeable Shares under Section 3.1 hereof shall
be the same dates as the record date and payment date, respectively, for the
corresponding dividend or distribution declared on the shares of Coeur Common
Stock.
3.4 PARTIAL PAYMENT
If on any payment date for any dividends or distributions declared on the
Exchangeable Shares under Section 3.1 hereof the dividends or distributions are
not paid in full on all of the Exchangeable Shares then outstanding, any such
dividends that remain unpaid shall be paid on a subsequent date or dates
determined by the Board of Directors on which the Corporation shall have
sufficient moneys or other assets properly applicable to the payment of such
dividends or distributions.
ARTICLE 4
CERTAIN RESTRICTIONS
4.1 CERTAIN RESTRICTIONS
(1) Except as provided in Section 4.1(2), so long as any of the Exchangeable
Shares are outstanding, the Corporation shall not at any time without, but
may at any time with, the approval of the holders of the Exchangeable
Shares given as specified in Section 9.2 hereof:
(a) pay any dividends on the Common Shares or any other shares ranking
junior to the Exchangeable Shares with respect to the payment of
dividends, other than
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stock dividends payable in Common Shares or in any such other shares
ranking junior to the Exchangeable Shares, as the case may be;
(b) redeem or purchase or make any capital distribution in respect of
Common Shares or any other shares ranking junior to the Exchangeable
Shares with respect to the distribution of the assets in the event
of the liquidation, dissolution or winding up of the Corporation;
(c) redeem or purchase any other shares of the Corporation ranking
equally with the Exchangeable Shares with respect to the payment of
dividends or the distribution of assets in the event of the
liquidation, dissolution or winding-up of the Corporation, whether
voluntary or involuntary, or any other distribution of the assets of
the Corporation among its shareholders for the purpose of winding up
its affairs; or
(d) issue any shares other than (i) Exchangeable Shares, (ii) Common
Shares, (iii) Special Shares, and (iv) any other shares not ranking
superior to the Exchangeable Shares.
(2) The restrictions in Sections 4.1(1)(a), 4.1(1)(b) and 4.1(1)(c) hereof
shall not apply if all dividends and distributions on the outstanding
Exchangeable Shares corresponding to dividends and distributions declared
and paid to date on the shares of Coeur Common Stock shall have been
declared and paid in full on the Exchangeable Shares.
ARTICLE 5
LIQUIDATION
5.1 PARTICIPATION UPON LIQUIDATION, DISSOLUTION OR WINDING UP OF THE
CORPORATION
(1) Subject to applicable law and the due exercise by Coeur or Coeur ULC of a
Liquidation Call Right, in the event of the liquidation, dissolution or
winding up of the Corporation or any other distribution of the assets of
the Corporation among its shareholders for the purpose of winding up its
affairs, a holder of Exchangeable Shares shall be entitled to receive from
the assets of the Corporation in respect of each Exchangeable Share held
by such holder on the effective date of such liquidation, dissolution or
winding up or other distribution (the "LIQUIDATION DATE"), before any
distribution of any part of the assets of the Corporation among the
holders of the Common Shares or any other shares ranking junior to the
Exchangeable Shares, an amount per share equal to (a) the Current Market
Price of a share of Coeur Common Stock on the last Business Day prior to
the Liquidation Date, which shall be satisfied in full by the Corporation
causing to be delivered to such holder one share of Coeur Common Stock,
plus (b) the Dividend Amount, if any (collectively, the "LIQUIDATION
AMOUNT").
(2) In the case of a distribution on Exchangeable Shares under this Section
5.1 and provided the Liquidation Call Right has not been exercised, on or
promptly after the Liquidation Date, the Corporation shall cause to be
delivered to the holders of the Exchangeable Shares the Liquidation Amount
for each such Exchangeable Share upon presentation and surrender of the
certificates representing such Exchangeable Shares, together with such
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other documents and instruments as may be required to effect a transfer of
Exchangeable Shares under the NBBCA and the Articles of the Corporation
and such additional documents and instruments as the Transfer Agent and
the Corporation may reasonably require, at the registered office of the
Corporation or at any office of the Transfer Agent as may be specified by
the Corporation by notice to the holders of the Exchangeable Shares.
Payment of the aggregate Liquidation Amount for such Exchangeable Shares
shall be made by causing to be delivered to each holder, at the address of
the holder recorded in the securities register of the Corporation for the
Exchangeable Shares or by holding for pick-up by the holder at the
registered office of the Corporation or at any office of the Transfer
Agent as may be specified by the Corporation by notice to the holders of
Exchangeable Shares, certificates representing the aggregate number of
shares of Coeur Common Stock deliverable by the Corporation to such holder
(which shares shall be duly issued as fully paid and non-assessable and
shall be free and clear of any lien, claim, encumbrance, security interest
or adverse claim) and a cheque of the Corporation payable at par at any
branch of the bankers of the Corporation in payment of the Dividend
Amount, if any, payable to such holder, without interest (less any amounts
withheld on account of tax required to be deducted and withheld
therefrom). On and after the Liquidation Date, the holders of the
Exchangeable Shares shall cease to be holders of such Exchangeable Shares
and shall not be entitled to exercise any of the rights of holders in
respect thereof (including any rights under the Voting and Exchange Trust
Agreement), other than the right to receive the Liquidation Amount, unless
payment of the total Liquidation Amount for such Exchangeable Shares shall
not be made upon presentation and surrender of share certificates in
accordance with the foregoing provisions, in which case the rights of the
holders shall remain unaffected until the Liquidation Amount has been paid
in the manner hereinbefore provided. The Corporation shall have the right
at any time after the Liquidation Date to transfer or cause to be issued
or transferred, and deposited in a custodial account with any chartered
bank or trust company in Canada named in such notice, the Liquidation
Amount in respect of the Exchangeable Shares represented by certificates
that have not at the Liquidation Date been surrendered by the holders
thereof, such Liquidation Amount to be held by such bank or trust company
as trustee for and on behalf of, and for the use and benefit of, such
holders. Upon such deposit being made, the rights of a holder of
Exchangeable Shares after such deposit shall be limited to receiving its
proportionate part of the Liquidation Amount for such Exchangeable Shares
so deposited, without interest, and when received by such bank or trust
company, all dividends and other distributions with respect to the shares
of Coeur Common Stock to which such holder is entitled with a record date
after the date of such deposit and before the date of transfer of such
shares of Coeur Common Stock to such holder (in each case less any amounts
withheld on account of tax required to be deducted and withheld therefrom)
against presentation and surrender of the certificates for the
Exchangeable Shares held by them in accordance with the foregoing
provisions.
(3) After the Corporation has satisfied its obligations to pay the holders of
the Exchangeable Shares the total Liquidation Amount pursuant to this
Section 5.1, such holders shall not be entitled to share in any further
distribution of the assets of the Corporation.
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5.2 LIQUIDATION CALL RIGHTS
(1) Subject to the limitations set forth in Section 5.2(2), Coeur and Coeur
ULC shall each have the overriding right (a "LIQUIDATION CALL RIGHT"), in
the event of and notwithstanding the proposed liquidation, dissolution or
winding up of the Corporation pursuant to Section 5.1 hereof, to purchase
from all but not less than all of the holders of Exchangeable Shares on
the Liquidation Date (other than Coeur and its Subsidiaries) all but not
less than all of the Exchangeable Shares held by each such holder on
payment by whichever of Coeur or Coeur ULC is exercising such right (the
"LCR EXERCISING PARTY") of an amount per share equal to (a) the Current
Market Price of a share of Coeur Common Stock on the last Business Day
prior to the Liquidation Date, which shall be satisfied in full by
delivery to such holder of one share of Coeur Common Stock, plus (b) the
Dividend Amount, if any (collectively, the "LIQUIDATION CALL PURCHASE
PRICE"). In the event of the exercise of a Liquidation Call Right, each
holder of Exchangeable Shares (other than Coeur and its Subsidiaries)
shall be obligated to sell all the Exchangeable Shares held by such holder
to the LCR Exercising Party on the Liquidation Date on payment by the LCR
Exercising Party to the holder of the Liquidation Call Purchase Price for
each such share.
(2) Coeur ULC shall only be entitled to exercise its Liquidation Call Right
with respect to those holders of Exchangeable Shares, if any, in respect
of which Coeur has not exercised its Liquidation Call Right. In order to
exercise its Liquidation Call Right, an LCR Exercising Party must notify
in writing the Transfer Agent, as agent for the holders of Exchangeable
Shares, the Trustee and the Corporation of its intention to exercise such
right at least 55 days before the Liquidation Date in the case of a
voluntary liquidation, dissolution or winding up of the Corporation and at
least five Business Days before the Liquidation Date in the case of an
involuntary liquidation, dissolution or winding up of the Corporation. The
Transfer Agent will notify the holders of Exchangeable Shares as to
whether or not a Liquidation Call Right has been exercised (such notice to
specify the LCR Exercising Party) forthwith after the expiry of the date
by which the same may be exercised, such form of notice to be provided by
Coeur to the Transfer Agent. If an LCR Exercising Party exercises its
Liquidation Call Right in accordance with this Section 5.2, all
obligations of the Corporation under Section 5.1 shall terminate and on
the Liquidation Date such LCR Exercising Party will purchase and the
holders of Exchangeable Shares (other than Coeur and its Subsidiaries)
will sell all of their Exchangeable Shares then outstanding for a price
per share equal to the Liquidation Call Purchase Price.
(3) For the purposes of completing a purchase of the Exchangeable Shares
pursuant to the exercise of a Liquidation Call Right, the LCR Exercising
Party shall deposit with the Transfer Agent, on or before the Liquidation
Date, certificates representing the total number of shares of Coeur Common
Stock deliverable by the LCR Exercising Party (which shares shall be duly
issued as fully paid and non-assessable and shall be free and clear of any
lien, claim, encumbrance, security interest or adverse claim) in payment
of the total Liquidation Call Purchase Price and a cheque in the amount of
the remaining portion, if any, of the total Liquidation Call Purchase
Price and any interest allowed on such deposit shall belong to the LCR
Exercising Party. Provided that the total Liquidation Call Purchase Price
has been so deposited with the Transfer Agent, on and
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after the Liquidation Date the rights of each holder of Exchangeable
Shares (other than Coeur and its Subsidiaries) will be limited to
receiving such holder's proportionate part of the total Liquidation Call
Purchase Price payable by the LCR Exercising Party, without interest, and
when received by the Transfer Agent, all dividends and other distributions
with respect to the shares of Coeur Common Stock to which such holder is
entitled with a record date after the date of such deposit and before the
date of transfer of such shares of Coeur Common Stock to such holder (in
each case less any amounts withheld on account of tax required to be
deducted and withheld therefrom) against presentation and surrender of the
certificates for the Exchangeable Shares held by them in accordance with
the following provisions. Upon surrender to the Transfer Agent of a
certificate representing Exchangeable Shares, together with such other
documents and instruments as may be required to effect a transfer of
Exchangeable Shares under the NBBCA and such additional documents and
instruments as the Transfer Agent and the Corporation may reasonably
require, the holder of such surrendered certificate shall be entitled to
receive in exchange therefor, and the Transfer Agent on behalf of the LCR
Exercising Party shall deliver to such holder, a certificate representing
the shares of Coeur Common Stock to which such holder is entitled and a
cheque in payment of the Dividend Amount, if any, without interest (less
any amounts withheld on account of tax required to be deducted and
withheld therefrom). If neither Coeur or Coeur ULC exercises its
Liquidation Call Right in the manner described above, on the Liquidation
Date the holders of Exchangeable Shares shall be entitled to receive in
exchange therefor the Liquidation Amount otherwise payable by the
Corporation in connection with the liquidation, dissolution or winding up
of the Corporation pursuant to Section 5.1 hereof.
ARTICLE 6
RETRACTION AT OPTION OF HOLDER
6.1 RETRACTION AT OPTION OF HOLDER
(1) Subject to applicable law and the due exercise by either Coeur or Coeur
ULC of a Retraction Call Right, a holder of Exchangeable Shares shall be
entitled at any time to require the Corporation to redeem, on the fifth
Business Day after the date on which the Retraction Request is received by
the Corporation (the "RETRACTION DATE"), any or all of the Exchangeable
Shares registered in the name of such holder for an amount per share equal
to (a) the Current Market Price of a share of Coeur Common Stock on the
last Business Day prior to the Retraction Date, which shall be satisfied
in full by the Corporation causing to be delivered to such holder one
share of Coeur Common Stock, plus (b) the Dividend Amount, if any
(collectively, the "RETRACTION PRICE"). The holder must give notice of a
requirement to redeem by presenting and surrendering at the registered
office of the Corporation or at any office of the Transfer Agent as may be
specified by the Corporation by notice to the holders of Exchangeable
Shares the certificate representing the Exchangeable Shares that the
holder desires to have the Corporation redeem, together with such other
documents and instruments as may be required to effect a transfer of
Exchangeable Shares under the NBBCA and such additional documents and
instruments as the Transfer Agent and the Corporation may reasonably
require, together with a duly executed statement (the "RETRACTION
REQUEST") in the form of Schedule A hereto or in such other form as may be
acceptable to the Corporation specifying that the holder desires to have
all or any number specified therein
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of the Exchangeable Shares represented by such certificate (the "RETRACTED
SHARES") redeemed by the Corporation.
(2) In the case of a redemption of Exchangeable Shares under this Section 6.1,
upon receipt by the Corporation or the Transfer Agent in the manner
specified in Section 6.1(1) hereof of a certificate representing the
number of Exchangeable Shares which the holder desires to have the
Corporation redeem, together with a Retraction Request, and provided that
the Retraction Request is not revoked by the holder in the manner
specified in Section 6.1(5) and that neither Coeur or Coeur ULC has
exercised a Retraction Call Right, the Corporation shall redeem the
Retracted Shares effective at the close of business on the Retraction
Date. On the Retraction Date, the Corporation shall deliver or cause to be
delivered to the relevant holder, at the address of the holder recorded in
the securities register of the Corporation for the Exchangeable Shares or
at the address specified in the holder's Retraction Request or by holding
for pick-up by the holder at the registered office of the Corporation or
at any office of the Transfer Agent, as may be specified by the
Corporation by notice to the holders of Exchangeable Shares, a certificate
representing the number of shares of Coeur Common Stock to which such
holder is entitled (which shares shall be duly issued as fully paid and
non-assessable and shall be free and clear of any lien, claim,
encumbrance, security interest or adverse claim) registered in the name of
the holder or in such other name as the holder may request in payment of
the Retraction Price and a cheque of the Corporation payable at par at any
branch of the bankers of the Corporation in payment of the remaining
portion, if any, of the aggregate Retraction Price to which such holder is
entitled, (less any amounts withheld on account of tax required to be
deducted and withheld therefrom) and such delivery of such certificate and
cheque by or on behalf of the Corporation by the Transfer Agent shall be
deemed to be payment of and shall satisfy and discharge all liability for
the Retraction Price to the extent that the same is represented by such
share certificates and cheque, unless such cheque is not paid on due
presentation. If only a part of the Exchangeable Shares represented by any
certificate is redeemed, a new certificate for the balance of such
Exchangeable Shares shall be issued to the holder at the expense of the
Corporation.
(3) On and after the close of business on the Retraction Date, the holder of
the Retracted Shares shall cease to be a holder of such Retracted Shares
and shall not be entitled to exercise any of the rights of a holder in
respect thereof, other than the right to receive its proportionate part of
the total Retraction Price, unless upon presentation and surrender of
certificates in accordance with the foregoing provisions, payment of the
aggregate Retraction Price payable to such holder shall not be made, in
which case the rights of such holder shall remain unaffected until such
aggregate Retraction Price has been paid in the manner hereinbefore
provided. On and after the close of business on the Retraction Date,
provided that presentation and surrender of certificates and payment of
such aggregate Retraction Price has been made in accordance with the
foregoing provisions, the holder of the Retracted Shares so redeemed by
the Corporation shall thereafter be considered and deemed for all purposes
to be a holder of the shares of Coeur Common Stock delivered to such
holder.
(4) Notwithstanding any other provision of this Section 6.1, the Corporation
shall not be obligated to redeem Retracted Shares specified by a holder in
a Retraction Request to the
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extent that such redemption of Retracted Shares would be contrary to
solvency requirements or other provisions of applicable law. If the
Corporation believes that on any Retraction Date it would not be permitted
by any of such provisions to redeem the Retracted Shares tendered for
redemption on such date, and neither Coeur nor Coeur ULC shall have
exercised its Retraction Call Right with respect to the Retracted Shares,
the Corporation shall only be obligated to redeem Retracted Shares
specified by a holder in a Retraction Request to the extent of the maximum
number that may be so redeemed (rounded down to a whole number of shares)
as would not be contrary to such provisions and shall notify the holder at
least two Business Days prior to the Retraction Date as to the number of
Retracted Shares which will not be redeemed by the Corporation. In any
case in which the redemption by the Corporation of Retracted Shares would
be contrary to solvency requirements or other provisions of applicable law
and more than one holder has delivered a Retraction Request, the
Corporation shall redeem Retracted Shares in accordance with Section
6.1(2) on a pro rata basis and shall issue to each such holder of
Retracted Shares a new certificate, at the expense of the Corporation,
representing the Retracted Shares not redeemed by the Corporation pursuant
to Section 6.1(2) hereof. If the Retraction Request is not revoked by the
holder in the manner specified in Section 6.1(5) and neither Coeur nor
Coeur ULC shall have exercised its Retraction Call Right in respect of any
such Retracted Shares, an Insolvency Event (as defined in the Voting and
Exchange Trust Agreement) shall, to the extent it has not theretofore
occurred, be deemed thereupon to have occurred and the holder of any such
Retracted Shares not redeemed by the Corporation pursuant to Section
6.1(2) as a result of solvency requirements or other provisions of
applicable law shall be deemed by giving the Retraction Request to have
exercised its Exchange Right (as defined in the Voting and Exchange Trust
Agreement) so as to require Coeur or, at the option of Coeur, Coeur ULC to
purchase the unredeemed Retracted Shares from such holder on the
Retraction Date or as soon as practicable thereafter on payment by Coeur
or, at the option of Coeur, Coeur ULC to such holder of the Retraction
Price, all as more specifically provided in the Voting and Exchange Trust
Agreement.
(5) A holder of Retracted Shares may, by notice in writing given by the holder
to the Corporation before the close of business on the Business Day
immediately preceding the Retraction Date, withdraw its Retraction Request
in which event such Retraction Request shall be null and void and, for
greater certainty, the revocable offer constituted by the Retraction
Request to sell the Retracted Shares to Coeur or Coeur ULC shall be deemed
to have been revoked.
(6) Notwithstanding any other provision of this Article 6, if:
(a) exercise of the rights of the holders of the Exchangeable Shares, or
any of them, to require the Corporation to redeem any Exchangeable
Shares pursuant to this Article 6 on any Retraction Date would
require listing particulars or any similar document to be issued in
order to obtain the approval of NYSE or TSX to the listing and
trading (subject to official notice of issuance) of, the shares of
Coeur Common Stock that would be required to be delivered to such
holders of Exchangeable Shares in connection with the exercise of
such rights; and
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(b) as a result of (a) above, it would not be practicable
(notwithstanding the reasonable endeavours of Coeur) to obtain such
approvals in time to enable all or any of such shares of Coeur
Common Stock to be admitted to listing and trading by NYSE or TSX
(subject to official notice of issuance) when so delivered,
that Retraction Date shall, notwithstanding any other date specified or
otherwise deemed to be specified in any relevant Retraction Request, be
deemed for all purposes to be the earlier of (i) the second business day
immediately following the date the approvals referred to in Section
6.1(6)(a) are obtained, and (ii) the date which is 30 Business Days after
the date on which the relevant Retraction Request is received by the
Corporation, and references in these share provisions to such Retraction
Date shall be construed accordingly.
6.2 RETRACTION CALL RIGHTS
(1) In the event that a holder of Exchangeable Shares delivers a Retraction
Request pursuant to Section 6.1 and subject to the limitations set forth
in Section 6.2(2), Coeur and Coeur ULC shall each have the overriding
right (a "RETRACTION CALL RIGHT"), notwithstanding the proposed redemption
of the Exchangeable Shares by the Corporation pursuant to Section 6.1
hereof, to purchase from such holder on the Retraction Date all but not
less than all of the Retracted Shares held by such holder on payment by
whichever of Coeur or Coeur ULC is exercising such right (the "RCR
EXERCISING PARTY") of an amount per share equal to (a) the Current Market
Price of a share of Coeur Common Stock on the last Business Day prior to
the Retraction Date, which shall be satisfied in full by the RCR
Exercising Party causing to be delivered to such holder one share of Coeur
Common Stock, plus (b) the Dividend Amount, if any (the "RETRACTION CALL
PURCHASE PRICE"). In the event of the exercise of a Retraction Call Right,
a holder of Exchangeable Shares who has delivered a Retraction Request
shall be obligated to sell all the Retracted Shares to the RCR Exercising
Party on the Retraction Date on payment by the RCR Exercising Party of an
amount per share equal to the Retraction Call Purchase Price for each such
share.
(2) Upon receipt by the Corporation of a Retraction Request, the Corporation
shall immediately notify Coeur and Coeur ULC thereof. In order to exercise
its Retraction Call Right, the RCR Exercising Party must notify the
Corporation in writing of its determination to do so (a "COEUR CALL
NOTICE") within two Business Days of notification to such RCR Exercising
Party by the Corporation of the receipt by the Corporation of the
Retraction Request. If either Coeur or Coeur ULC so notifies the
Corporation within such two Business Day period, the Corporation shall
notify the holder as soon as possible thereafter as to the exercise of a
Retraction Call Right (such notice to specify the RCR Exercising Party).
If either Coeur or Coeur ULC delivers a Coeur Call Notice within such two
Business Day period and duly exercises its Retraction Call Right in
accordance with this Section 6.2, the obligation of the Corporation to
redeem the Retracted Shares shall terminate and, provided that the
Retraction Request is not revoked by the holder in the manner specified in
Section 6.1(5), the RCR Exercising Party shall purchase from such holder
and such holder shall sell to the RCR Exercising Party on the Retraction
Date the Retracted Shares for the Retraction Call Purchase Price. Provided
that the aggregate Retraction Call Purchase Price has been so deposited
with the Transfer Agent as provided
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in Section 6.2(3), the closing of the purchase and sale of the Retracted
Shares pursuant to the Retraction Call Right shall be deemed to have
occurred as at the close of business on the Retraction Date and, for
greater certainty, no redemption by the Corporation of such Retracted
Shares shall take place on the Retraction Date. In the event that neither
Coeur nor Coeur ULC delivers a Coeur Call Notice within such two Business
Day period, and provided that the Retraction Request is not revoked by the
holder in the manner specified in Section 6.1(5), the Corporation shall
redeem the Retracted Shares on the Retraction Date and in the manner
otherwise contemplated in Section 6.1.
(3) For the purpose of completing a purchase of Exchangeable Shares pursuant
to the exercise of a Retraction Call Right, the RCR Exercising Party shall
deliver or cause to be delivered to the relevant holder, at the address of
the holder recorded in the securities register of the Corporation for the
Exchangeable Shares or at the address specified in the holder's Retraction
Request or by holding for pick-up by the holder at the registered office
of the Corporation or at any office of the Transfer Agent as may be
specified by the Corporation by notice to the holders of Exchangeable
Shares, a certificate representing the number of shares of Coeur Common
Stock to which such holder is entitled (which shares shall be duly issued
as fully paid and non-assessable and shall be free and clear of any lien,
claim, encumbrance, security interest or adverse claim) registered in the
name of the holder or in such other name as the holder may request in
payment of the Retraction Call Purchase Price and a cheque of the RCR
Exercising Party payable at par and in Canadian dollars at any branch of
the bankers of Coeur, Coeur ULC or of the Corporation in Canada in payment
of the remaining portion, if any, of such aggregate Retraction Call
Purchase Price, (less any amounts withheld on account of tax required to
be deducted and withheld therefrom) and such delivery of such certificate
and cheque on behalf of the RCR Exercising Party by the Transfer Agent
shall be deemed to be payment of and shall satisfy and discharge all
liability for the Retraction Call Purchase Price to the extent that the
same is represented by such share certificates and cheque, unless such
cheque is not paid on due presentation.
(4) On and after the close of business on the Retraction Date, the holder of
the Retracted Shares shall not be entitled to exercise any of the rights
of a holder in respect thereof, other than the right to receive its
proportionate part of the total Retraction Call Purchase Price unless upon
presentation and surrender of certificates in accordance with the
foregoing provisions, payment of the aggregate Retraction Call Purchase
Price payable to such holder shall not be made, in which case the rights
of such holder shall remain unaffected until such aggregate Retraction
Call Purchase Price has been paid in the manner hereinbefore provided. On
and after the close of business on the Retraction Date, provided that
presentation and surrender of certificates and payment of such aggregate
Retraction Call Purchase Price has been made in accordance with the
foregoing provisions, the holder of the Retracted Shares so purchased by
the RCR Exercising Party shall thereafter be considered and deemed for all
purposes to be a holder of the shares of Coeur Common Stock delivered to
such holder.
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ARTICLE 7
REDEMPTION BY THE CORPORATION
7.1 REDEMPTION BY THE CORPORATION
(1) Subject to applicable law and the due exercise by either Coeur or Coeur
ULC of a Redemption Call Right, the Corporation shall on the Redemption
Date redeem all of the then outstanding Exchangeable Shares for an amount
per share equal to (a) the Current Market Price of a share of Coeur Common
Stock on the last Business Day prior to such Redemption Date, which shall
be satisfied in full by the Corporation causing to be delivered one share
of Coeur Common Stock, plus (b) the Dividend Amount, if any (collectively,
the "REDEMPTION PRICE").
(2) In case of a redemption of Exchangeable Shares under this Section 7.1 that
is to occur prior to the seventh anniversary of the date on which
Exchangeable Shares are first issued, the Corporation shall, at least 60
days before the Redemption Date, send or cause to be sent to each holder
of Exchangeable Shares a notice in writing of the redemption by the
Corporation or the purchase by Coeur or Coeur ULC under its Redemption
Call Right, as the case may be, of the Exchangeable Shares held by such
holder (other than Coeur and its Subsidiaries in the case of a purchase by
Coeur or Coeur ULC). Such notice shall set out the formula for determining
the Redemption Price or the Redemption Call Purchase Price, as the case
may be, such Redemption Date and, if applicable, particulars of the
Redemption Call Right.
(3) On or after the Redemption Date and subject to the exercise by Coeur or
Coeur ULC of a Redemption Call Right, the Corporation shall cause to be
delivered to the holders of the Exchangeable Shares to be redeemed the
Redemption Price for each such Exchangeable Share upon presentation and
surrender at the registered office of the Corporation or at any office of
the Transfer Agent as may be specified by the Corporation in such notice
of the certificates representing such Exchangeable Shares, together with
such other documents and instruments as may be required to effect a
transfer of Exchangeable Shares under the NBBCA and such additional
documents and instruments as the Transfer Agent and the Corporation may
reasonably require. Payment of the aggregate Redemption Price for
Exchangeable Shares held by a holder shall be made by delivery to such
holder, at the address of such holder recorded in the securities register
of the Corporation or by holding for pick-up by the holder at the
registered office of the Corporation or at any office of the Transfer
Agent as may be specified by the Corporation in such notice, of a
certificate representing the aggregate number of shares of Coeur Common
Stock deliverable by the Corporation to such holder (which shares shall be
duly issued as fully paid and non-assessable and shall be free and clear
of any lien, claim, encumbrance, security interest or adverse claim) and a
cheque of the Corporation payable at par at any branch of the bankers of
the Corporation in respect of the remaining portion, if any, of such
aggregate Redemption Price, (less any amounts withheld on account of tax
required to be deducted and withheld therefrom). On and after the
Redemption Date, the holders of the Exchangeable Shares called for
redemption shall not be entitled to exercise any of the rights of holders
in respect thereof, other than the right to receive their proportionate
part of the total Redemption Price, unless payment of the aggregate
Redemption Price deliverable to a holder for Exchangeable Shares shall not
be made upon presentation and
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surrender of share certificates in accordance with the foregoing
provisions, in which case the rights of the holder shall remain unaffected
until the aggregate Redemption Price deliverable to such holder has been
paid in the manner hereinbefore provided.
(4) The Corporation shall have the right at any time after the sending of
notice of its intention to redeem the Exchangeable Shares as aforesaid to
deposit or cause to be deposited the total Redemption Price of the
Exchangeable Shares so called for redemption, or of such of the said
Exchangeable Shares represented by certificates that have not at the date
of such deposit been surrendered by the holders thereof in connection with
such redemption, in a custodial account with any chartered bank or trust
company in Canada named in such notice and any interest allowed on such
deposit shall belong to the Corporation. Provided that such total
Redemption Price has been so deposited prior to the Redemption Date, on
and after the Redemption Date, the Exchangeable Shares shall be redeemed
and the rights of the holders thereof after the Redemption Date shall be
limited to receiving their proportionate part of the total Redemption
Price for such Exchangeable Shares so deposited, against presentation and
surrender of the said certificates held by them, respectively, in
accordance with the foregoing provisions. Upon such payment or deposit of
the total Redemption Price, the holders of the Exchangeable Shares shall
thereafter be considered and deemed for all purposes to be holders of the
shares of Coeur Common Stock delivered to them.
7.2 REDEMPTION CALL RIGHTS
(1) Subject to the limitations set forth in Section 7.2(2), Coeur and Coeur
ULC shall each have the overriding right (a "REDEMPTION CALL RIGHT"),
notwithstanding the proposed redemption of the Exchangeable Shares by the
Corporation pursuant to Section 7.1 hereof, to purchase from all but not
less than all of the holders of Exchangeable Shares (other than Coeur and
its Subsidiaries) on the last Business Day prior to the Redemption Date in
respect of which the Redemption Call Right is exercised all but not less
than all of the Exchangeable Shares held by each such holder on payment by
whichever of Coeur or Coeur ULC is exercising such right (the "REDEMPTION
CR EXERCISING PARTY") of an amount per share equal to (a) the Current
Market Price of a share of Coeur Common Stock on the last Business Day
prior to such Redemption Date, which shall be satisfied in full by causing
to be delivered to such holder one share of Coeur Common Stock plus (b)
the Dividend Amount, if any (collectively, the "REDEMPTION CALL PURCHASE
PRICE"). In the event of the exercise of a Redemption Call Right, each
holder of Exchangeable Shares (other than Coeur and its Subsidiaries)
shall be obligated to sell all the Exchangeable Shares held by such holder
to the Redemption CR Exercising Party on the last Business Day prior to
such Redemption Date on payment by the Redemption CR Exercising Party to
such holder of the Redemption Call Purchase Price for each such share.
(2) Coeur ULC shall only be entitled to exercise its Redemption Call Right
with respect to those holders of Exchangeable Shares, if any, in respect
of which Coeur has not exercised its Redemption Call Right. In order to
exercise its Redemption Call Right, a Redemption CR Exercising Party must
notify in writing the Transfer Agent, as agent for the holders of
Exchangeable Shares and the Corporation of its intention to exercise such
right at least 30 days before the Redemption Date. The Transfer Agent will
notify the holders of
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Exchangeable Shares as to whether or not a Redemption Call Right has been
exercised (such notice to specify the Redemption CR Exercising Party)
forthwith after the expiry of the date by which the same may be exercised,
such form of notice to be provided by Coeur to the Transfer Agent. If a
Redemption CR Exercising Party duly exercises its Redemption Call Right in
accordance with this Section 7.2, the right of the Corporation to redeem
any Exchangeable Shares pursuant to Section 7.1 on the Redemption Date
shall terminate at such time and on the last Business Day prior to such
Redemption Date such Redemption CR Exercising Party will purchase and the
holders of Exchangeable Shares (other than Coeur and its Subsidiaries)
will sell all of their Exchangeable Shares then outstanding for a price
per share equal to the Redemption Call Purchase Price.
(3) For the purposes of completing a purchase of the Exchangeable Shares
pursuant to the exercise of a Redemption Call Right, the Redemption CR
Exercising Party shall deposit with the Transfer Agent, on or before the
last Business Day prior to the Redemption Date, certificates representing
the total number of shares of Coeur Common Stock deliverable by the
Redemption CR Exercising Party (which shares shall be duly issued as fully
paid and non-assessable and shall be free and clear of any lien, claim,
encumbrance, security interest or adverse claim) in payment of the total
Redemption Call Purchase Price and a cheque in the amount of the remaining
portion, if any, of the total Redemption Call Purchase Price, without
interest (less any amounts withheld on account of tax required to be
deducted and withheld therefrom) and any interest allowed on such deposit
shall belong to the Redemption CR Exercising Party. Provided that the
total Redemption Call Purchase Price has been so deposited with the
Transfer Agent, on and after the last Business Day prior to the Redemption
Date the rights of each holder of Exchangeable Shares (other than Coeur
and its Subsidiaries) will be limited to receiving such holder's
proportionate part of the total Redemption Call Purchase Price payable by
the Redemption CR Exercising Party upon presentation and surrender by such
holder of certificates representing the Exchangeable Shares held by such
holder in accordance with the following provisions and such holder shall
on and after the last Business Day prior to such Redemption Date be
considered and deemed for all purposes to be the holder of the shares of
Coeur Common Stock delivered to such holder. Upon surrender to the
Transfer Agent of a certificate representing Exchangeable Shares, together
with such other documents and instruments as may be required to effect a
transfer of Exchangeable Shares under the NBBCA and such additional
documents and instruments as the Transfer Agent and the Corporation may
reasonably require, the holder of such surrendered certificate shall be
entitled to receive in exchange therefor, and the Transfer Agent on behalf
of the Redemption CR Exercising Party shall deliver to such holder, a
certificate representing the shares of Coeur Common Stock to which such
holder is entitled and a cheque in payment of the remaining portion, if
any, of the holder's proportionate part of the total Redemption Call
Purchase Price, without interest (less any amounts withheld on account of
tax required to be deducted and withheld therefrom). If neither Coeur nor
Coeur ULC exercises the Redemption Call Right in the manner described
above, on the Redemption Date a holder of Exchangeable Shares shall be
entitled to receive in exchange therefor the Redemption Price otherwise
payable by the Corporation in connection with the redemption of the
Exchangeable Shares pursuant to Section 7.1 hereof.
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ARTICLE 8
VOTING RIGHTS
8.1 VOTING RIGHTS
Except as required by applicable law and by the provisions of Sections
9.1, 10.1 and 11.2 hereof, the holders of the Exchangeable Shares shall not be
entitled as such to receive notice of or to attend any meeting of the
shareholders of the Corporation or to vote at any such meeting.
ARTICLE 9
AMENDMENT AND APPROVAL
9.1 AMENDMENT
The rights, privileges, restrictions and conditions attaching to the
Exchangeable Shares may be added to, changed or removed only with the approval
of the holders of the Exchangeable Shares given as hereinafter specified.
9.2 APPROVAL
Any approval given by the holders of the Exchangeable Shares to add to,
change or remove any right, privilege, restriction or condition attaching to the
Exchangeable Shares or any other matter requiring the approval or consent of the
holders of the Exchangeable Shares shall be deemed to have been sufficiently
given if it shall have been given in accordance with applicable law, subject to
a minimum requirement that such approval be evidenced by resolution passed by
not less than two-thirds of the votes cast on such resolution at a meeting of
holders of Exchangeable Shares duly called and held at which the holders of at
least 10% of the outstanding Exchangeable Shares at that time are present or
represented by proxy; provided that such approval must be given also by the
affirmative vote of holders of more than two-thirds of the Exchangeable Shares
represented in person or by proxy at the meeting excluding Exchangeable Shares
beneficially owned by Coeur or any of its Subsidiaries. If at any such meeting
the holders of at least 10% of the outstanding Exchangeable Shares at that time
are not present or represented by proxy within one-half hour after the time
appointed for such meeting, then the meeting shall be adjourned to such date not
less than five days thereafter and to such time and place as may be designated
by the Chairman of such meeting. At such adjourned meeting the holders of
Exchangeable Shares present or represented by proxy thereat may transact the
business for which the meeting was originally called and a resolution passed
thereat by the affirmative vote of not less than two-thirds of the votes cast on
such resolution at such meeting excluding Exchangeable Shares beneficially owned
by Coeur or any of its Subsidiaries shall constitute the approval or consent of
the holders of the Exchangeable Shares.
ARTICLE 10
RECIPROCAL CHANGES, ETC. IN RESPECT OF COEUR COMMON STOCK
10.1 RECIPROCAL CHANGES
(1) Each holder of an Exchangeable Share acknowledges that the Support
Agreement provides, in part, that Coeur will not, except as provided in
the Support Agreement,
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without the prior approval of the Corporation and the prior approval of
the holders of the Exchangeable Shares given in accordance with Section
9.2 hereof:
(a) issue or distribute shares of Coeur Common Stock (or securities
exchangeable for or convertible into or carrying rights to acquire
Coeur Common Stock) to the holders of all or substantially all of
the then outstanding shares of Coeur Common Stock, by way of stock
dividend or other distribution, other than an issue of shares of
Coeur Common Stock (or securities exchangeable for or convertible
into or carrying rights to acquire Coeur Common Stock) to holders of
shares of Coeur Common Stock who exercise an option to receive
dividends in shares of Coeur Common Stock (or securities
exchangeable for or convertible into or carrying rights to acquire
Coeur Common Stock) in lieu of receiving cash dividends;
(b) issue or distribute rights, options or warrants to the holders of
all or substantially all of the then outstanding shares of Coeur
Common Stock entitling them to subscribe for or to purchase shares
of Coeur Common Stock (or securities exchangeable for or convertible
into or carrying rights to acquire shares of Coeur Common Stock); or
(c) issue or distribute to the holders of all or substantially all of
the then outstanding shares of Coeur Common Stock:
(i) shares or securities (including evidence of indebtedness) of
Coeur of any class other than Coeur Common Stock (other than
shares convertible into or exchangeable for or carrying rights
to acquire Coeur Common Stock);
(ii) rights, options or warrants other than those referred to in
Section 10.1(1)(b) above; or
(iii) assets of Coeur,
unless the economic equivalent on a per share basis of such rights,
options, securities, shares, evidences of indebtedness or other assets is
issued or distributed simultaneously to holders of the Exchangeable
Shares.
(2) Each holder of an Exchangeable Share acknowledges that the Support
Agreement further provides, in part, that Coeur will not, except as
provided in the Support Agreement, without the prior approval of the
Corporation and the prior approval of the holders of the Exchangeable
Shares given in accordance with Section 9.2 hereof:
(a) subdivide, redivide or change the then outstanding Coeur Common
Stock into a greater number of shares of Coeur Common Stock;
(b) reduce, combine, consolidate or change the then outstanding shares
of Coeur Common Stock into a lesser number of shares of Coeur Common
Stock; or
(c) reclassify or otherwise change the shares of Coeur Common Stock or
effect an amalgamation, merger, reorganization or other transaction
affecting the Coeur Common Stock,
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unless the same or an economically equivalent change shall simultaneously
be made to, or in, the rights of the holders of the Exchangeable Shares.
The Support Agreement further provides, in part, that the aforesaid
provisions of the Support Agreement shall not be changed without the approval of
the holders of the Exchangeable Shares given in accordance with Section 9.2
hereof.
ARTICLE 11
ACTIONS BY THE CORPORATION UNDER SUPPORT AGREEMENT
11.1 ACTIONS BY THE CORPORATION
The Corporation will take all such actions and do all such things as shall
be necessary or advisable to perform and comply with and to facilitate
performance and compliance by Coeur and Coeur ULC with all provisions of the
Support Agreement applicable to Coeur, Coeur ULC and the Corporation,
respectively, in accordance with the terms thereof including, without
limitation, taking all such actions and doing all such things as shall be
necessary or advisable to enforce to the fullest extent possible for the direct
benefit of the Corporation all rights and benefits in favour of the Corporation
under or pursuant to such agreement.
11.2 CHANGES TO SUPPORT AGREEMENT
The Corporation shall not agree to or otherwise give effect to any
amendment to, or waiver or forgiveness of its rights or obligations under, the
Support Agreement without the approval of the holders of the Exchangeable Shares
given in accordance with Section 9.2 hereof other than such amendments, waivers
and/or forgiveness as may be necessary or advisable for the purposes of:
(a) adding to the covenants of the other parties to such agreement for
the protection of the Corporation or the holders of the Exchangeable
Shares;
(b) making such provisions or modifications not inconsistent with such
agreement as may be necessary or desirable with respect to matters
or questions arising thereunder which, in the opinion of the Board
of Directors, it may be expedient to make, provided that the Board
of Directors shall be of the good faith opinion, after consultation
with counsel, that such provisions and modifications will not be
prejudicial to the interests of the holders of the Exchangeable
Shares; or
(c) making such changes in or corrections to such agreement which, on
the advice of counsel to the Corporation, are required for the
purpose of curing or correcting any ambiguity or defect or
inconsistent provision or clerical omission or mistake or manifest
error contained therein, provided that the Board of Directors shall
be of the good faith opinion, after consultation with counsel, that
such provisions and modifications will not be prejudicial to the
interests of the holders of the Exchangeable Shares.
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ARTICLE 12
LEGEND; CALL RIGHTS; WITHHOLDING RIGHTS
12.1 LEGEND
The certificates evidencing the Exchangeable Shares shall contain or have
affixed thereto a legend in form and on terms approved by the Board of
Directors, with respect to the Support Agreement and the Voting and Exchange
Trust Agreement (including, but not limited to, the provisions with respect to
the call rights, voting rights and exchange rights thereunder).
12.2 CALL RIGHTS
Each holder of an Exchangeable Share, whether of record or beneficial, by
virtue of becoming and being such a holder shall be deemed to acknowledge each
of the Liquidation Call Right, the Retraction Call Right and the Redemption Call
Right, in each case, in favour of Coeur and Coeur ULC, and the overriding nature
thereof in connection with the liquidation, dissolution or winding-up of the
Corporation or any other distribution of the assets of the Corporation among its
shareholders for the purpose of winding up its affairs, or the retraction or
redemption of Exchangeable Shares, as the case may be, and to be bound thereby
in favour of Coeur or Coeur ULC, as the case may be, as herein provided.
12.3 WITHHOLDING RIGHTS
Coeur, Coeur ULC, the Corporation and the Transfer Agent shall be entitled
to deduct and withhold from any consideration otherwise payable under to any
holder of Exchangeable Shares such amounts as Coeur, Coeur ULC, the Corporation
or the Transfer Agent is required to deduct and withhold with respect to such
payment under the Income Tax Act (Canada) or United States tax laws or any
provision of provincial, state, federal, local or foreign tax law, in each case
as amended or succeeded. The Transfer Agent may act and rely on the advice of
counsel with respect to such matters. To the extent that amounts are so
withheld, such withheld amounts shall be treated for all purposes as having been
paid to the holder of the Exchangeable Shares in respect of which such deduction
and withholding was made, provided that such withheld amounts are actually
remitted to the appropriate taxing authority. To the extent that the amount so
required to be deducted or withheld from any payment to a holder exceeds the
cash portion of the consideration otherwise payable to the holder, Coeur, Coeur
ULC, the Corporation and the Transfer Agent are hereby authorized to sell or
otherwise dispose of such portion of the consideration as is necessary to
provide sufficient funds to Coeur, Coeur ULC, the Corporation or the Transfer
Agent, as the case may be, to enable it to comply with such deduction or
withholding requirement and Coeur, Coeur ULC, the Corporation or the Transfer
Agent shall notify the holder thereof and remit to such holder any unapplied
balance of the net proceeds of such sale.
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ARTICLE 13
NOTICES
13.1 NOTICES
Subject to applicable law, any notice, request or other communication to
be given to the Corporation by a holder of Exchangeable Shares shall be in
writing and shall be valid and effective if given by mail (postage prepaid) or
by telecopy or by delivery to the registered office of the Corporation and
addressed to the attention of the Secretary of the Corporation. Any such notice,
request or other communication, if given by mail, telecopy or delivery, shall
only be deemed to have been given and received upon actual receipt thereof by
the Corporation.
13.2 CERTIFICATES
Any presentation and surrender by a holder of Exchangeable Shares to the
Corporation or the Transfer Agent of certificates representing Exchangeable
Shares in connection with the liquidation, dissolution or winding-up of the
Corporation or the retraction or redemption of Exchangeable Shares shall be made
by registered mail (postage prepaid) or by delivery to the registered office of
the Corporation or to such office of the Transfer Agent as may be specified by
the Corporation, in each case, addressed to the attention of the Secretary of
the Corporation. Any such presentation and surrender of certificates shall only
be deemed to have been made and to be effective upon actual receipt thereof by
the Corporation or the Transfer Agent, as the case may be. Any such presentation
and surrender of certificates made by registered mail (postage prepaid) shall be
at the sole risk of the holder mailing the same.
13.3 NOTICES TO SHAREHOLDERS
Subject to applicable law, any notice, request or other communication to
be given to a holder of Exchangeable Shares by or on behalf of the Corporation
shall be in writing and shall be valid and effective if given by mail (postage
prepaid) or by delivery to the address of the holder recorded in the register of
shareholders of the Corporation or, in the event of the address of any such
holder not being so recorded, then at the last known address of such holder. Any
such notice, request or other communication, if given by mail, shall be deemed
to have been given and received on the fifth Business Day following the date of
mailing and, if given by delivery, shall be deemed to have been given and
received on the date of delivery. Accidental failure or omission to give any
notice, request or other communication to one or more holders of Exchangeable
Shares, or any defect in such notice, shall not invalidate or otherwise alter or
affect any action or proceeding to be taken by the Corporation pursuant thereto.
In the event of any interruption of mail service immediately prior to a
scheduled mailing or in the period following a mailing during which delivery
normally would be expected to occur, the Corporation will make reasonable
efforts to disseminate any notice by other means, such as publication. Except as
otherwise required or permitted by law, if post offices in Canada or the United
States are not open for the deposit of mail, any notice which the Corporation or
the Transfer Agent may give or cause to be given will be deemed to have been
properly given and to have been received by holders of Exchangeable Shares if
(i) it is given to the Toronto Stock Exchange for dissemination or (ii) it is
published once in the National Edition of The Globe and Mail and in the daily
newspapers of general circulation in each of the French and English languages in
the City of Montreal, provided that if the National Edition of The Globe and
Mail is
- 23 -
not being generally circulated, publication thereof will be made in any other
daily newspaper of general circulation published in the City of Toronto.
Notwithstanding any other provisions of these share provisions, notices,
other communications and deliveries need not be mailed if the Corporation
determines that delivery thereof by mail may be delayed. Persons entitled to any
deliveries (including certificates and cheques) which are not mailed for the
foregoing reason may take delivery thereof at the office of the Transfer Agent
to which the deliveries were made, upon application to the Transfer Agent, until
such time as the Corporation has determined that delivery by mail will no longer
be delayed. The Corporation will provide notice of any such determination not to
mail made hereunder as soon as reasonably practicable after the making of such
determination and in accordance with this Section 13.3. Such deliveries in such
circumstances will constitute delivery to the persons entitled thereto.
SCHEDULE A
RETRACTION REQUEST
To: Coeur d'Alene Mines Corporation, Coeur d'Alene Acquisition ULC and Coeur
d'Alene Canadian Acquisition Corporation, c/of the Trustee
This notice is given pursuant to Article 6 of the provisions (the "SHARE
PROVISIONS") attaching to the share(s) represented by this certificate and all
capitalized words and expressions used in this notice that are defined in the
Share Provisions have the meanings ascribed to such words and expressions in
such Share Provisions.
The undersigned hereby notifies the Corporation that, subject to the
Retraction Call Right referred to below, the undersigned desires to have the
Corporation redeem in accordance with Article 6 of the Share Provisions:
[ ] all share(s) represented by this certificate; or
[ ] ________________ share(s) only represented by this certificate.
The undersigned acknowledges the Retraction Call Right of Coeur and Coeur
ULC to purchase all but not less than all the Retracted Shares from the
undersigned and that this notice is and shall be deemed to be a revocable offer
by the undersigned to sell the Retracted Shares to Coeur or Coeur ULC in
accordance with the Retraction Call Right on the Retraction Date for the
Retraction Call Purchase Price and on the other terms and conditions set out in
Section 6.2 of the Share Provisions. If neither Coeur or Coeur ULC determines to
exercise its Retraction Call Right, the Corporation will notify the undersigned
of such fact as soon as possible. This Retraction Request, and this offer to
sell the Retracted Shares to Coeur or Coeur ULC, may be revoked and withdrawn by
the undersigned only by notice in writing given to the Corporation at any time
before the close of business on the Business Day immediately preceding the
Retraction Date.
The undersigned acknowledges that if, as a result of solvency provisions
of applicable law, the Corporation is unable to redeem all Retracted Shares, an
Insolvency Event (as defined in the Voting and Exchange Trust Agreement) shall,
to the extent it shall not theretofore have occurred, be deemed thereupon to
have occurred, and the undersigned will be deemed to have exercised the Exchange
Right (as defined in the Voting and Exchange Trust Agreement) so as to require
Coeur or, at the option of Coeur, Coeur ULC to purchase the unredeemed Retracted
Shares.
The undersigned hereby represents and warrants to the Corporation, Coeur
and Coeur ULC that the undersigned has good title to, and owns, the share(s)
represented by this certificate to be acquired by the Corporation, Coeur or
Coeur ULC, as the case may be, free and clear of all liens, claims,
encumbrances, security interests and adverse claims.
- ------------------ ------------------------------ ----------------------------
(Date) (Signature of Shareholder) (Guarantee of Signature)
[ ] Please check box if the securities and any cheque(s) resulting from the
retraction or purchase of the Retracted Shares are to be held for pick-up
by the shareholder at the principal transfer office of the Transfer Agent
in Toronto, failing which such securities and any cheque will be mailed to
the last address of the shareholder as it appears on the register.
NOTE: This panel must be completed and this certificate, together with such
additional documents as the Transfer Agent and the Corporation may
require, must be deposited with the Transfer Agent at its principal
transfer office in Toronto. The securities and any cheque resulting from
the retraction or purchase of the Retracted Shares will be issued and
registered in, and made payable to, respectively, the name of the
shareholder as it appears on the register of the Corporation and the
securities and cheque resulting from such retraction or purchase will be
delivered to such shareholder as indicated above, unless the form
appearing immediately below is duly completed, all exigible transfer taxes
are paid and the signature of the registered holder is guaranteed by a
Canadian chartered bank or trust company, member of a recognized stock
exchange in Canada or a member of the Securities Transfer Association
Medallion (STAMP) Program.
Date:
-----------------------------
- --------------------------------------
Name of Person in Whose Name
Securities or Cheque(s)
Are to be Registered, Issued or
Delivered (please print)
- -------------------------------------- -------------------------------------
Street Address or P.O. Box Signature of Shareholder
- -------------------------------------- -------------------------------------
City, Province and Postal Code Signature Guaranteed by
NOTE: If this Retraction Request is for less than all of the share(s)
represented by this certificate, a certificate representing the remaining
share of the Corporation will be issued and registered in the name of the
shareholder as it appears on the register of the Corporation, unless the
Share Transfer Power on the share certificate is duly completed in respect
of such share(s).