EXHIBIT 4.6
FORM OF
SUPPORT AGREEMENT
AGREEMENT made as of __________________, 2004, between Coeur
d'Alene Mines Corporation, a corporation existing under the laws of Idaho
(hereinafter referred to as "COEUR CORP."), Coeur d'Alene Mines Holdings
Company, a corporation existing under the laws of Idaho (hereinafter referred to
as ("COEUR HOLDINGS"), Coeur d'Alene Acquisition ULC, a corporation existing
under the laws of Nova Scotia (hereinafter referred to as "COEUR ULC") and Coeur
d'Alene Canadian Acquisition Corporation, a corporation existing under the laws
of New Brunswick (hereinafter referred to as "ACQUISITIONCO").
WHEREAS Coeur Corp., together with Coeur Holdings, Coeur ULC and
Acquisitionco has offered, by way of a public take-over bid, to acquire any and
all of the outstanding common shares of Wheaton River Minerals Ltd. in
consideration for, among other things, Exchangeable Shares of Acquisitionco;
AND WHEREAS holders of Exchangeable Shares will be entitled to
require Acquisitionco to redeem such Exchangeable Shares and upon such
redemption each Exchangeable Share shall be exchanged by Acquisitionco for,
among other things, one share of Coeur Common Stock (as hereinafter defined);
AND WHEREAS Coeur (as hereinafter defined) intends to grant to
and in favour of Non-Affiliated Holders (as hereinafter defined) from time to
time of Exchangeable Shares the right to require Coeur or, at the option of
Coeur, Coeur ULC, to purchase from each Non-Affiliated Holder all or any part of
the Exchangeable Shares held by the Non-Affiliated Holder;
AND WHEREAS the parties desire to make appropriate provision and
to establish a procedure whereby Coeur will take certain actions and make
certain payments and deliveries necessary to ensure that Acquisitionco and Coeur
ULC will be able to make certain payments and to deliver or cause to be
delivered shares of Coeur Common Stock in satisfaction of the obligations of
Acquisitionco and/or Coeur ULC under the Share Provisions (as hereinafter
defined) and this agreement;
NOW THEREFORE, in consideration of the respective covenants and
agreements provided in this agreement and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINED TERMS
Each initially capitalized term used and not otherwise defined
herein shall have the meaning ascribed thereto in the rights, privileges,
restrictions and conditions (collectively, the "SHARE PROVISIONS") attaching to
the Exchangeable Shares as set out in the articles of Acquisitionco and the
following terms will have the following meanings. In this agreement, "INCLUDING"
means "including without limitation" and "includes" means "includes without
limitation".
(a) "COEUR" means, prior to the Coeur Reorganization, Coeur Corp.
and, following the Coeur Reorganization, Coeur Holdings, which
is intended to be the successor registrant to Coeur Corp.
(b) "COEUR REORGANIZATION" means the holding company reorganization
whereby Coeur Corp. will become a wholly-owned subsidiary of
Coeur Holdings and the name of Coeur Holdings will be changed to
"Coeur d'Alene Mines Corporation" and in connection therewith
Coeur Holdings will become the successor registrant to Coeur
Corp.
(c) "EFFECTIVE DATE" means the date on which Acquisitionco first
takes up shares of Wheaton River Minerals Ltd. under the offer
to purchase pursuant to the take-over bid.
(d) "NON-AFFILIATED HOLDERS" means the registered holders of
Exchangeable Shares other than Coeur and its Subsidiaries.
(e) "TRUSTEE" means ___________________ and, subject to the
provisions of the Voting and Exchange Trust Agreement, includes
any successor trustee or permitted assigns.
(f) "SPECIAL VOTING SHARE" means the one share of special voting
preference stock par value US$1.00, issued by Coeur to and
deposited with the Trustee, which entitles the holder of record
to a number of votes at meetings of holders of Coeur Common Stock
equal to the number of Exchangeable Shares outstanding from time
to time that are held by Non-Affiliated Holders.
SECTION 1.2 INTERPRETATION NOT AFFECTED BY HEADINGS
The division of this agreement into Articles, Sections and other
portions and the insertion of headings are for convenience of reference only and
do not affect the construction or interpretation of this agreement. Unless
otherwise specified, references to an "ARTICLE" or "SECTION" refer to the
specified Article or Section of this agreement.
SECTION 1.3 NUMBER, GENDER
Words importing the singular number only shall include the plural
and vice versa. Words importing any gender shall include all genders.
SECTION 1.4 DATE FOR ANY ACTION
If any date on which any action is required to be taken under
this agreement is not a Business Day, such action shall be required to be taken
on the next succeeding Business Day.
SECTION 1.5 PAYMENTS
All payments to be made hereunder will be made without interest
and less any tax required by Canadian law to be deducted and withheld.
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SECTION 1.6 CURRENCY
In this agreement, unless stated otherwise, all dollar amounts
are in Canadian dollars.
ARTICLE 2
COVENANTS OF COEUR AND ACQUISITIONCO
SECTION 2.1 COVENANTS REGARDING EXCHANGEABLE SHARES
So long as any Exchangeable Shares are outstanding, Coeur will:
(a) not declare or pay any dividend on the Coeur Common Stock unless
Acquisitionco shall (i) simultaneously declare or pay, as the
case may be, an equivalent dividend on the Exchangeable Shares
(an "EQUIVALENT DIVIDEND"), and (ii) have sufficient money or
other assets or authorized but unissued securities available to
enable the due declaration and the due and punctual payment, in
accordance with applicable law, of any such Equivalent Dividend;
(b) advise Acquisitionco sufficiently in advance of the declaration
by Coeur of any dividend on the Coeur Common Stock and take all
such other actions as are necessary, in co-operation with
Acquisitionco, to ensure that the respective declaration date,
record date and payment date for an Equivalent Dividend on the
Exchangeable Shares shall be the same as the declaration date,
record date and payment date for the corresponding dividend on
the Coeur Common Stock and that such dividend on the Exchangeable
Shares shall comply with any requirements of the stock exchange
on which the Exchangeable Shares are listed;
(c) ensure that the record date for determining shareholders entitled
to receive any dividend declared on the Coeur Common Stock is not
less than 10 Business Days after the declaration date for such
dividend or such shorter period as may be permitted under
applicable law;
(d) take all such actions and do all such things as are reasonably
necessary or desirable to enable and permit Acquisitionco, in
accordance with applicable law, to pay and otherwise perform its
obligations with respect to the satisfaction of the Liquidation
Amount, in respect of each issued and outstanding Exchangeable
Share upon the liquidation, dissolution or winding-up of
Acquisitionco or any other distribution of the assets of
Acquisitionco among its shareholders for the purpose of winding
up its affairs including, without limitation, all such actions
and all such things as are necessary or desirable to enable and
permit Acquisitionco to cause to be delivered shares of Coeur
Common Stock to the holders of Exchangeable Shares in accordance
with the provisions of Article 5 of the Share Provisions;
(e) take all such actions and do all such things as are reasonably
necessary or desirable to enable and permit Acquisitionco, in
accordance with applicable law, to pay and otherwise perform its
obligations with respect to the satisfaction of the Retraction
Price and the Redemption Price, including, without limitation,
all such
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actions and all such things as are necessary or desirable to
enable and permit Acquisitionco to cause to be delivered shares
of Coeur Common Stock to the holders of Exchangeable Shares, upon
the redemption of Exchangeable Shares in accordance with the
provisions of Article 6 or Article 7 of the Share Provisions;
(f) take all such actions and do all such things as are reasonably
necessary or desirable to enable and permit Coeur ULC or Coeur,
in accordance with applicable law, to perform its obligations
arising upon the exercise by it of the Liquidation Call Right,
the Retraction Call Right or the Redemption Call Right, including
all such actions and all such things as are necessary or
desirable to enable and permit Coeur ULC or Coeur to cause to be
delivered shares of Coeur Common Stock to the holders of
Exchangeable Shares in accordance with the provisions of the
Liquidation Call Right, the Retraction Call Right or the
Redemption Call Right, as the case may be; and
(g) not exercise its vote as a shareholder to initiate the voluntary
liquidation, dissolution or winding up of Acquisitionco or any
other distribution of the assets of Acquisitionco among its
shareholders for the purpose of winding up its affairs, nor take
any action or omit to take any action that is designed to result
in the liquidation, dissolution or winding up of Acquisitionco or
any other distribution of the assets of Acquisitionco among its
shareholders for the purpose of winding up its affairs.
SECTION 2.2 SEGREGATION OF FUNDS
Coeur will cause Acquisitionco to deposit a sufficient amount of
funds in a separate account of Acquisitionco and segregate a sufficient amount
of such other assets and property as is necessary to enable Acquisitionco to pay
or otherwise satisfy the applicable dividends, Liquidation Amount, Retraction
Price or Redemption Price, once such amounts become payable under the terms of
this agreement or the Share Provisions, in each case for the benefit of
Non-Affiliated Holders from time to time of the Exchangeable Shares, and to use
such funds and other assets so segregated exclusively for the payment of
dividends and the payment or other satisfaction of the Liquidation Amount, the
Retraction Price or the Redemption Price, as applicable.
SECTION 2.3 RESERVATION OF COEUR COMMON STOCK
Coeur hereby represents, warrants and covenants in favour of
Acquisitionco and Coeur ULC that Coeur has reserved for issuance and will, at
all times while any Exchangeable Shares are outstanding, keep available, free
from pre-emptive and other rights, out of its authorized and unissued capital
stock such number of shares of Coeur Common Stock (or other shares or securities
into which Coeur Common Stock may be reclassified or changed as contemplated by
Section 2.7): (a) as is equal to the sum of (i) the number of Exchangeable
Shares issued and outstanding from time to time and (ii) the number of
Exchangeable Shares issuable upon the exercise of all rights to acquire
Exchangeable Shares outstanding from time to time; and (b) as are now and may
hereafter be required to enable and permit each of Coeur, Coeur ULC and
Acquisitionco to meet its obligations under the Voting and Exchange Trust
Agreement, under the Share Provisions and under any other security or commitment
pursuant to
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which Coeur, Coeur ULC and Acquisitionco may now or hereafter be required to
issue and/or deliver shares of Coeur Common Stock to the Non-Affiliated Holders.
SECTION 2.4 NOTIFICATION OF CERTAIN EVENTS
In order to assist Coeur to comply with its obligations hereunder
and to permit Coeur ULC to exercise the Liquidation Call Right, Retraction Call
Right and Redemption Call Right, Acquisitionco will notify Coeur of each of the
following events at the time set forth below:
(a) in the event of any determination by the Board of Directors of
Acquisitionco to institute voluntary liquidation, dissolution or
winding-up proceedings with respect to Acquisitionco or to effect
any other distribution of the assets of Acquisitionco among its
shareholders for the purpose of winding up its affairs, at least
60 days prior to the proposed effective date of such liquidation,
dissolution, winding-up or other distribution;
(b) immediately, upon the earlier of (i) receipt by Acquisitionco of
notice of, and (ii) Acquisitionco otherwise becoming aware of,
any threatened or instituted claim, suit, petition or other
proceedings with respect to the involuntary liquidation,
dissolution or winding-up of Acquisitionco or to effect any other
distribution of the assets of Acquisitionco among its
shareholders for the purpose of winding up its affairs;
(c) immediately, upon receipt by Acquisitionco of a Retraction
Request;
(d) at least 30 days prior to any Redemption Date determined by the
Board of Directors of Acquisitionco in accordance with the Share
Provisions; and
(e) as soon as practicable upon the issuance by Acquisitionco of any
Exchangeable Shares or rights to acquire Exchangeable Shares.
SECTION 2.5 DELIVERY OF COEUR COMMON STOCK
Upon notice of any event that requires Acquisitionco or Coeur ULC
to cause to be delivered Coeur Common Stock to any holder of Exchangeable
Shares, Coeur shall, in any manner deemed appropriate by it, provide such shares
or cause such shares to be provided to Acquisitionco or Coeur ULC, as
appropriate, which shall forthwith deliver or cause to be delivered the
requisite number of Coeur Common Stock to or for the benefit of the former
holder of the surrendered Exchangeable Shares. All such shares of Coeur Common
Stock shall be duly authorized and validly issued as fully paid, non-assessable,
free of pre-emptive rights and shall be free and clear of any lien, claim,
encumbrance, security interest or adverse claim. In consideration for the
issuance and delivery of each such share of Coeur Common Stock, Acquisitionco or
Coeur ULC, as the case may be, shall subscribe a cash amount or pay a purchase
price equal to the fair market value of the shares of Coeur Common Stock.
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SECTION 2.6 QUALIFICATION OF COEUR COMMON STOCK
Coeur covenants that it will make such filings and seek such
regulatory consents and approvals as are necessary so that the shares of Coeur
Common Stock to be issued to holders of Exchangeable Shares pursuant to the
terms of the Share Provisions, the Voting and Exchange Trust Agreement and this
agreement will be issued in compliance with the applicable securities laws in
Canada and the United States and may be freely traded thereafter (other than by
holders who are Affiliates of Coeur within the meaning of U.S. securities laws).
Coeur will in good faith expeditiously take all such actions and do all such
things as are reasonably necessary or desirable to cause all shares of Coeur
Common Stock to be delivered hereunder to be listed, quoted or posted for
trading on all stock exchanges and quotation systems on which outstanding shares
of Coeur Common stock have been listed by Coeur and remain listed and are quoted
or posted for trading at such time.
SECTION 2.7 ECONOMIC EQUIVALENCE
(a) Coeur will not without prior approval of Acquisitionco and the
prior approval of the holders of the Exchangeable Shares given in
accordance with Section 9.2 of the Share Provisions:
(i) issue or distribute shares of Coeur Common Stock (or
securities exchangeable for or convertible into or
carrying rights to acquire shares of Coeur Common Stock)
to the holders of all or substantially all of the then
outstanding 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 shares of
Coeur Common Stock) to holders of shares of Coeur Common
Stock who exercise an option to receive dividends in Coeur
Common Stock (or securities exchangeable for or
convertible into or carrying rights to acquire Coeur
Common Stock) in lieu of receiving cash dividends; or
(ii) 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
(iii) issue or distribute to the holders of all or substantially
all of the then outstanding shares of Coeur Common Stock
(A) shares or securities (including evidence of
indebtedness) of Coeur of any class other than Coeur
Common Stock (or securities convertible into or
exchangeable for or carrying rights to acquire shares of
Coeur Common Stock), or (B) rights, options or warrants
other than those referred to in Section 2.7(a)(ii) above,
or (C) assets of Coeur;
unless (x) Acquisitionco is permitted under applicable law to
issue or distribute the economic equivalent on a per share basis
of such rights, options, securities, shares, evidences of
indebtedness or other assets to holders of the Exchangeable
Shares and (y) Acquisitionco shall issue or distribute such
rights, options,
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securities, shares, evidences of indebtedness or other assets
simultaneously to holders of the Exchangeable Shares.
(b) Coeur will not without the prior approval of Acquisitionco and
the prior approval of the holders of the Exchangeable Shares
given in accordance with Section 9.2 of the Share Provisions:
(i) subdivide, redivide or change the then outstanding shares
of Coeur Common Stock into a greater number of shares of
Coeur Common Stock; or
(ii) reduce, combine, consolidate or change the then
outstanding shares of Coeur Common Stock into a lesser
number of shares of Coeur Common Stock; or
(iii) reclassify or otherwise change the shares of Coeur Common
Stock or effect an amalgamation, merger, reorganization or
other transaction affecting the shares of Coeur Common
Stock;
unless (x) Acquisitionco is permitted under applicable law
simultaneously to make the same or an economically equivalent
change to, or in the rights of holders of, the Exchangeable
Shares, and (y) the same or an economically equivalent change is
made to, or in the rights of the holders of, the Exchangeable
Shares.
(c) Coeur will ensure that the record date for any event referred to
in Section 2.7(a) or Section 2.7(b), or (if no record date is
applicable for such event) the effective date for any such event,
is not less than ten Business Days after the date on which such
event is declared or announced by Coeur (with simultaneous
notification thereof by Coeur to Acquisitionco).
(d) The Board of Directors of Acquisitionco shall determine, acting
in good faith and in its sole discretion (with the assistance of
such reputable and qualified independent financial advisors
and/or other experts as the board may require), economic
equivalence for the purposes of any event referred to in Section
2.7(a) or Section 2.7(b) and each such determination shall be
conclusive and binding on Coeur. In making each such
determination, the following factors shall, without excluding
other factors determined by the Board of Directors of
Acquisitionco to be relevant, be considered by the Board of
Directors of Acquisitionco:
(i) in the case of any stock dividend or other distribution
payable in shares of Coeur Common Stock, the number of
such shares issued in proportion to the number of shares
of Coeur Common Stock previously outstanding;
(ii) in the case of the issuance or distribution of any rights,
options or warrants to subscribe for or purchase shares of
Coeur Common Stock (or securities exchangeable for or
convertible into or carrying rights to acquire shares of
Coeur Common Stock), the relationship between the exercise
price of each
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such right, option or warrant and the Current Market Price
of a share of Coeur Common Stock;
(iii) in the case of the issuance or distribution of any other
form of property (including, without limitation, any
shares or securities of Coeur of any class other than
Coeur Common Stock, any rights, options or warrants other
than those referred to in Section 2.7(d)(ii), any
evidences of indebtedness of Coeur or any assets of
Coeur), the relationship between the fair market value (as
determined by the Board of Directors of Acquisitionco in
the manner above contemplated) of such property to be
issued or distributed with respect to each outstanding
share of Coeur Common Stock and the Current Market Price
of a share of Coeur Common Stock;
(iv) in the case of any subdivision, redivision or change of
the then outstanding shares of Coeur Common Stock into a
greater number of shares of Coeur Common Stock or the
reduction, combination, consolidation or change of the
then outstanding shares of Coeur Common Stock into a
lesser number of shares of Coeur Common Stock or any
amalgamation, merger, reorganization or other transaction
affecting the Coeur Common Stock, the effect thereof upon
the then outstanding shares of Coeur Common Stock; and
(v) in all such cases, the general taxation consequences of
the relevant event to holders of Exchangeable Shares to
the extent that such consequences may differ from the
taxation consequences to holders of shares of Coeur Common
Stock as a result of differences between taxation laws of
Canada and the United States (except for any differing
consequences arising as a result of differing marginal
taxation rates and without regard to the individual
circumstances of holders of Exchangeable Shares).
SECTION 2.8 TENDER OFFERS
In the event that a cash offer, share exchange offer, issuer bid,
take-over bid or similar transaction with respect to Coeur Common Stock (an
"OFFER") is proposed by Coeur or is proposed to Coeur or its shareholders and is
recommended by the board of directors of Coeur, or is otherwise effected or to
be effected with the consent or approval of the board of directors of Coeur,
Coeur will use reasonable efforts (to the extent, in the case of an Offer by a
third party, within its control) expeditiously and in good faith to take all
such actions and do all such things as are necessary or desirable to enable and
permit holders of Exchangeable Shares to participate in such Offer to the same
extent and on an economically equivalent basis as the holders of shares of Coeur
Common Stock, without discrimination. Without limiting the generality of the
foregoing, Coeur will use reasonable efforts expeditiously and in good faith to
ensure that holders of Exchangeable Shares may participate in each such Offer
without being required to retract Exchangeable Shares as against Acquisitionco
(or, if so required, to ensure that any such retraction, shall be effective only
upon, and shall be conditional upon, the closing of such Offer and only to the
extent necessary to tender or deposit to the Offer). Nothing herein shall affect
the
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right of Acquisitionco to redeem, or Coeur or Coeur ULC to purchase pursuant to
the Redemption Call Right, Exchangeable Shares.
SECTION 2.9 COEUR AND AFFILIATES NOT TO VOTE EXCHANGEABLE SHARES
Coeur covenants and agrees that it will appoint and cause to be
appointed proxyholders with respect to all Exchangeable Shares held by it and
its Subsidiaries for the sole purpose of attending each meeting of holders of
Exchangeable Shares in order to be counted as part of the quorum for each such
meeting. Coeur further covenants and agrees that it will not, and will cause its
Subsidiaries not to, exercise any voting rights that may be exercisable by
holders of Exchangeable Shares from time to time pursuant to the Share
Provisions or pursuant to the provisions of the NBBCA (or any successor or other
corporate statute by which Acquisitionco may in the future be governed) with
respect to any Exchangeable Shares held by it or by its Subsidiaries in respect
of any matter considered at any meeting of holders of Exchangeable Shares.
SECTION 2.10 STOCK EXCHANGE LISTING
Coeur covenants and agrees in favour of Acquisitionco that Coeur
will use its best efforts to maintain a listing of the Exchangeable Shares on
the TSX or another stock exchange in Canada prescribed under the Income Tax Act
(Canada).
SECTION 2.11 DUE PERFORMANCE
On and after the Effective Date, Coeur shall, and shall cause
Coeur ULC to, duly and timely perform all of its obligations provided for herein
and that may arise under the Share Provisions, and Coeur shall be responsible
for the due performance of all of such obligations hereunder and under the Share
Provisions.
SECTION 2.12 ISSUE OF ADDITIONAL SHARES
During the term of this agreement, Coeur will not issue any
Special Voting Shares other than the one Special Voting Share to be issued to
the Trustee.
SECTION 2.13 OWNERSHIP OF OUTSTANDING SHARES
Without the prior approval of Acquisitionco and the prior
approval of the holders of the Exchangeable Shares given in accordance with
Section 11.2 of the Share Provisions, Coeur covenants and agrees in favour of
Acquisitionco that, as long as any outstanding Exchangeable Shares are owned by
Non-Affiliated Holders, Coeur will be and remain the direct or indirect
beneficial owner of all issued and outstanding voting shares in the capital of
Acquisitionco and Coeur ULC.
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ARTICLE 3
COEUR SUCCESSORS
SECTION 3.1 CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC.
Coeur shall not enter into any transaction (whether by way of
reconstruction, reorganization, consolidation, arrangement, merger, transfer,
sale, lease or otherwise) whereby all or substantially all of its undertaking,
property and assets would become the property of any other person or, in the
case of a merger, of the continuing corporation resulting therefrom unless, but
may do so if:
(a) such other person or continuing corporation (the "COEUR
SUCCESSOR") by operation of law, becomes, without more, bound by
the terms and provisions of this agreement or, if not so bound,
executes, prior to or contemporaneously with the consummation of
such transaction, an agreement supplemental hereto and such other
instruments (if any) as are necessary or advisable to evidence
the assumption by the Coeur Successor of liability for all moneys
payable and property deliverable hereunder and the covenant of
such Coeur Successor to pay and deliver or cause to be delivered
the same and its agreement to observe and perform all the
covenants and obligations of Coeur under this agreement; and
(b) such transaction shall be upon such terms and conditions as
substantially to preserve and not to impair in any material
respect any of the rights, duties, powers and authorities of the
other parties hereunder or the holders of the Exchangeable
Shares.
SECTION 3.2 VESTING OF POWERS IN SUCCESSOR
Whenever the conditions of Section 3.1 have been duly observed
and performed, the parties, if required by Section 3.1, shall execute and
deliver the supplemental agreement provided for in Section 3.1(a) and thereupon
the Coeur Successor and such other person that may then be the issuer of the
Coeur Common Stock shall possess and from time to time may exercise each and
every right and power of Coeur under this agreement in the name of Coeur or
otherwise and any act or proceeding by any provision of this agreement required
to be done or performed by the board of directors of Coeur or any officers of
Coeur may be done and performed with like force and effect by the directors or
officers of such Coeur Successor.
SECTION 3.3 WHOLLY-OWNED SUBSIDIARIES
Nothing herein shall be construed as preventing the amalgamation
or merger of any wholly-owned Subsidiary of Coeur with or into Coeur or the
winding-up, liquidation or dissolution of any wholly-owned Subsidiary of Coeur,
provided that all of the assets of such Subsidiary are transferred to Coeur or
another wholly-owned Subsidiary of Coeur, and any such transactions are
expressly permitted by this Article 3.
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ARTICLE 4
GENERAL
SECTION 4.1 TERM
This agreement shall come into force and be effective as of the
date hereof and shall terminate and be of no further force and effect at such
time as no Exchangeable Shares (or securities or rights convertible into or
exchangeable for or carrying rights to acquire Exchangeable Shares) are held by
Non-Affiliated Holders.
SECTION 4.2 CHANGES IN CAPITAL OF COEUR AND ACQUISITIONCO
At all times after the occurrence of any event contemplated
pursuant to Section 2.7 and Section 2.8 hereof or otherwise, as a result of
which either the Coeur Common Stock or the Exchangeable Shares or both are in
any way changed, this agreement shall forthwith be amended and modified as
necessary in order that it shall apply with full force and effect, mutatis
mutandis, to all new securities into which the Coeur Common Stock or the
Exchangeable Shares or both are so changed and the parties hereto shall execute
and deliver a supplemental agreement in writing giving effect to and evidencing
such necessary amendments and modifications.
SECTION 4.3 SEVERABILITY
If any term or other provision of this agreement is invalid,
illegal or incapable of being enforced by any rule or law, or public policy, all
other conditions and provisions of this agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
SECTION 4.4 AMENDMENTS, MODIFICATIONS
(a) Subject to Section 4.2, Section 4.3, Section 4.4 and Section 4.5
of this agreement may not be amended or modified except by an
agreement in writing executed by Acquisitionco, Coeur ULC and
Coeur and approved by the holders of the Exchangeable Shares in
accordance with Section 9.2 of the Share Provisions.
(b) No amendment or modification or waiver of any of the provisions
of this agreement otherwise permitted hereunder shall be
effective unless made in writing and signed by all of the parties
hereto.
SECTION 4.5 MINISTERIAL AMENDMENTS
Notwithstanding the provisions of Section 4.4 hereof, the parties
to this agreement may in writing at any time and from time to time, without the
approval of the holders of the Exchangeable Shares, amend or modify this
agreement for the purposes of:
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(a) adding to the covenants of any or all of the parties hereto for
the protection of the Non-Affiliated Holders;
(b) evidencing the succession of Coeur Successors and the covenants
of and obligations assumed by each such Coeur Successor in
accordance with the provisions of Article 3;
(c) making such amendments or modifications not inconsistent with
this agreement as may be necessary or desirable with respect to
matters or questions which, in the opinion of the board of
directors of each of Acquisitionco, Coeur ULC and Coeur, having
in mind the best interests of the Non-Affiliated Holders as a
whole, it may be expedient to make, provided that each such board
of directors shall be of the opinion that such amendments or
modifications will not be prejudicial in any material respect to
the rights or interests of the Non-Affiliated Holders as a whole
of the Exchangeable Shares; or
(d) making such changes or corrections which, on the advice of
counsel to Acquisitionco, Coeur ULC and Coeur, are required for
the purpose of curing or correcting any ambiguity or defect or
inconsistent provision or clerical omission or mistake or
manifest error, provided that the boards of directors of each of
Acquisitionco, Coeur ULC and Coeur shall be of the opinion that
such changes or corrections will not be prejudicial in any
material respect to the rights or interests of the Non-Affiliated
Holders.
SECTION 4.6 MEETING TO CONSIDER AMENDMENTS
Acquisitionco, at the request of Coeur, shall call a meeting or
meetings of the holders of Exchangeable Shares for the purpose of considering
any proposed amendment or modification requiring approval pursuant to Section
4.4 hereof. Any such meeting or meetings shall be called and held in accordance
with the bylaws of Acquisitionco, the Share Provisions and all applicable laws.
SECTION 4.7 ENUREMENT
This agreement shall be binding upon and enure to the benefit of
the parties hereto and their respective successors and assigns.
SECTION 4.8 NOTICES TO PARTIES
Any notice and other communications required or permitted to be
given pursuant to this agreement shall be sufficiently given if delivered in
person or if sent by facsimile transmission (provided such transmission is
recorded as being transmitted successfully) to the parties at the following
addresses:
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(a) in the case of Coeur, to the following address:
400 Coeur d'Alene Mines Building
505 Front Avenue
Coeur d'Alene, Idaho
83814
Facsimile No.: (208) 667-2213
Attention: James Sabala
with a copy to:
William F. Boyd
801 Sherman Avenue, Suite 1
Coeur d'Alene, Idaho
83814
Facsimile No.: (208) 665-0864
(b) in the case of Coeur ULC, to the following address:
Suite 900, Purdy's Wharf Tower One
1959 Upper Water Street
P.O. Box 997. Stn. Central
Halifax, Nova Scotia
B3J 2X2
Facsimile No.: (902) 420-1417
Attention: Corporate Secretary
with a copy to:
Goodmans LLP
250 Yonge Street
Suite 2400
Toronto, ON M5B 2M6
Facsimile No.: (416) 979-1234
Attention: Stephen Halperin or Jonathan Lampe
(c) in the case of Acquisitionco, to the following address:
44 Chipman Hill, Suite 1000
P.O. Box 7289, Stn. A
Saint John, New Brunswick
E2L 4S6
Facsimile No.: (506) 652-1989
Attention: Corporate Secretary
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with a copy to:
Coeur d'Alene Mines Corporation
400 Coeur d'Alene Mines Building
505 Front Avenue
Coeur d'Alene, Idaho
83814
Facsimile No.: (208) 667-2213
Attention: James Sabala
or at such other address as the party to which such notice or other
communication is to be given has last notified the party given the same in the
manner provided in this Section, and if not given the same shall be deemed to
have been received on the date of such delivery or sending.
SECTION 4.9 COUNTERPARTS
This agreement may be executed in counterparts (by facsimile or
otherwise), each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
SECTION 4.10 JURISDICTION
This agreement shall be construed and enforced in accordance with
the laws of the Province of Ontario and the laws of Canada applicable therein.
Each party hereto irrevocably submits to the non-exclusive jurisdiction of the
courts of the Province of Ontario with respect to any matter arising hereunder
or related hereto.
IN WITNESS WHEREOF, the parties hereto have caused this agreement
to be duly executed as of the date first above written.
COEUR D'ALENE MINES CORPORATION
Per:
-------------------------------------
Name:
Title:
COEUR D'ALENE MINES HOLDINGS COMPANY
Per:
-------------------------------------
Name:
Title:
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COEUR D'ALENE ACQUISITION ULC
Per:
-------------------------------------
Name:
Title:
COEUR D'ALENE CANADIAN
ACQUISITION CORPORATION
Per:
-------------------------------------
Name:
Title:
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