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EXHIBIT 10(c)
Dated 20 December 1995
CALL OPTION AGREEMENT OVER SHARES
IOMA PTY LTD
("VENDOR")
COEUR D'ALENE MINES CORPORATION
("PURCHASER")
MALLESONS STEPHEN JAQUES
Solicitors
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Telephone (02) 250 3133
DX 113 Sydney
Ref: NWH:DLF:AGB
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CONTENTS AGREEMENT FOR PURCHASE OF SHARES
1 INTERPRETATION
2 CALL OPTION
3 EXERCISE PRICE
4 CONDITIONS PRECEDENT
5 EXERCISE OF OPTION
6 COMPLETION
7 WARRANTIES, REPRESENTATIONS AND
INDEMNITIES
8 DEFAULT BY VENDOR
9 ACCEPTANCE OF TAKEOVER OFFER
10 COSTS AND STAMP DUTY
11 NOTICES
12 ASSIGNMENT
13 MISCELLANEOUS
14 GOVERNING LAW, JURISDICTION AND
SERVICE OF PROCESS
APPENDIX - WARRANTIES AND REPRESENTATIONS
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CALL OPTION AGREEMENT OVER SHARES
This agreement is made on 20 December 1995
Between:
IOMA PTY LTD (A.C.N. 009 243 403) having
its registered office at Gilbert Rodgers &
Co, 33rd Floor, QV1 Building, 250 St Georges
Terrace, Perth, Western Australia ("VENDOR")
And:
COEUR D'ALENE MINES CORPORATION an Idaho
Corporation, having its registered office
at 505 Front Avenue, Coeur d'Alene, Idaho
83814, USA ("PURCHASER")
RECITALS:
A. Gasgoyne Gold Mines N.L. (A.C.N. 009 212
382) is a company incorporated in Western
Australia and has its registered office at
Level 33, QV1 Building, 250 St Georges
Terrace, Perth, Western Australia, 6000
("COMPANY").
B. The Company has an authorised share capital
of $20,000,000 divided into 100,000,000
ordinary shares of 20c. each, of which
53,322,943 have been issued, credited as
fully paid.
C. The Vendor is the beneficial owner of
11,508,353 issued shares in the capital of
the Company.
D. The Vendor has agreed to grant an option to
the Purchaser to purchase 10,611,300 Shares
held by the Vendor, comprising
approximately 19.9% of the issued share
capital of the Company on the following
terms.
OPERATIVE PROVISIONS:
1 INTERPRETATION
1.1 The following words have these meanings in
this agreement unless the contrary
intention appears.
BUSINESS DAY means a day on which trading
banks are open for general business in
Sydney and Perth.
CALL OPTION means the option granted to the
Purchaser under clause 2.
CALL OPTION PERIOD means the period
commencing 5 Business Days after the
despatch of the Company's Part B Statement
in response to any takeover offer as
contemplated in clause 4(b) and ending 2
months after that date.
COMPLETION means settlement of the sale and
purchase of the Option Shares in accordance
with clause 6 and COMPLETE has a
corresponding meaning.
COMPLETION DATE means the date on which the
consideration is payable under clause 3.2,
or any other date agreed by the Vendor and
the Purchaser.
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EXERCISE PRICE means the aggregate
consideration payable for the Option Shares
calculated in accordance with clause 3.
LAST ACCOUNTS means the financial
statements for the period ending on the
Last Balance Date included in the 1995
annual report of the Company.
LAST BALANCE DATE means 30 June 1995.
OPTION SHARES means 10,611,300 Shares held
by the Vendor comprising approximately
19.9% of the total issued capital of the
Company as at the date of this agreement.
RELATED BODY CORPORATE of a body corporate
means another body corporate which is
related to the first within the meaning of
section 50 of the Corporations Law.
SHARES means the issued shares in the
capital of the Company and SHARE means any
one of those shares.
SUBSIDIARY means a Related Body Corporate
of the Company other than a holding company
of the Company.
WARRANTIES means the warranties,
representations and indemnities in this
agreement, including clause 7 and the
appendix.
1.2 In this agreement unless the contrary
intention appears:
(a) a reference to a clause or appendix
is a reference to a clause of or
appendix to this agreement and
references to this agreement
include any recital or appendix;
(b) a reference to this agreement or
another instrument includes any
variation or replacement of either
of them;
(c) a reference to a statute,
ordinance, code or other law
includes regulations and other
instruments under it and
consolidations, amendments,
re-enactments or replacements of
any of them;
(d) the singular includes the plural
and vice versa;
(e) the word person includes a firm, a
body corporate, an unincorporated
association or an authority;
(f) a reference to a person includes a
reference to the person's
executors, administrators,
successors, substitutes (including,
but not limited to, persons taking
by novation) and assigns;
(g) if a period of time is specified
and dates from a given day or the
day of an act or event, it is to be
calculated exclusive of that day;
(h) a reference to a day is to be
interpreted as the period of time
commencing at midnight and ending
24 hours later; and
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(i) a reference to "dollars" or "$"
means Australian dollars.
1.3 Headings are inserted for convenience and
do not affect the interpretation of this
agreement.
2 CALL OPTION
2.1 In consideration of the payment by the
Purchaser to the Vendor of $10 (receipt of
which is acknowledged), the Vendor grants
to the Purchaser an option to purchase the
Option Shares on the terms and conditions
set out in this agreement.
2.2 Nothing in this agreement shall be taken to
restrict the Vendor's right to dispose of
Shares in the Company, other than the
Option Shares, to another party.
3 EXERCISE PRICE
3.1 The consideration payable to the Vendor by
the Purchaser on exercise of the Call
Option is:
(a) $60; and
(b) the issue to the Vendor by the
Purchaser of 7 shares of common
stock in the capital of the
Purchaser of the same class as that
currently quoted on New York Stock
Exchange,
for every 100 Option Shares.
3.2 The consideration payable under clause 3.1
must be paid to the Vendor by the Purchaser
at the earlier of:
(a) if the takeover contemplated in
clause 4(b) proceeds, the same time
as the consideration is paid to
shareholders of the Company under
that takeover; and
(b) in any other case, 2 Business Days
after that takeover fails to
proceed, whether by reason of
non-fulfilment of a condition
precedent or otherwise.
4 CONDITIONS PRECEDENT
The right of the Purchaser to exercise the
Call Option is conditional on:
(a) the Treasurer of the Commonwealth
of Australia consenting, under the
Foreign Acquisitions and Takeovers
Act 1975, to the proposed
acquisition by the Purchaser of the
Option Shares and the Treasurer is
to be deemed to have so consented:
(i) if the Purchaser receives
written advice from the
Treasurer or on his behalf,
without any term or condition
which the Purchaser considers
unacceptable, to the effect
that the acquisition of the
Option Shares is not objected
to under the Foreign
Acquisitions and Takeovers
Act 1975; or
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(ii) if ten days have elapsed from
the day the Treasurer ceased
to be empowered to make any
order under Part II of the
Foreign Acquisitions and
Takeovers Act in relation to
the proposed acquisition
because of lapse of time,
notice of the proposed
acquisition of the Option
Shares having been given to
the Treasurer under the
Foreign Acquisitions and
Takeovers Act 1975; and
(b) the Purchaser despatching offer
documents under a full takeover
offer for all of the Shares in the
Company as contemplated under
chapter 6 of the Corporations Law
(provided that the relevant Part A
Statement and offer is served on
the Company prior to 31 March 1996)
under which the consideration
payable to shareholders of the
Company is not less favourable than
the consideration contemplated
under clause 3.1 on a per share
basis (making appropriate provision
for holders of odd lots and
allowing for any restrictions on
the issue of shares of common stock
by the Purchaser to non-Australian
or non-US shareholders of the
Company).
5 EXERCISE OF OPTION
5.1 Subject to clause 4, the Purchaser may
exercise the Call Option by giving to the
Vendor written notice of exercise at any
time during the Call Option Period.
5.2 Exercise of the Call Option will only be
valid if it relates to all the Option
Shares.
5.3 Upon exercise of the Call Option, the
Vendor must sell the Option Shares free and
clear of any liens, claims, charges or
other encumbrances or interests of any
third party and with all rights attaching
to them on and after the date of this
agreement.
5.4 From the date of receipt by the Vendor of
the notice of exercise contemplated under
clause 5.1, the Vendor must exercise any
voting rights attaching to the Option
Shares in accordance with the directions of
the Purchaser.
5.5 If this agreement is terminated for any
reason, in addition to any other rights,
powers or remedies provided by law:
(a) each party is released from its
obligations to further perform the
agreement except those imposing on
it obligations of confidentiality;
and
(b) each party retains the rights it
has against any other party in
respect of any past breach.
6 COMPLETION
6.1 Completion of the sale and purchase of the
Option Shares will take place at 10:00 am
on the Completion Date at Blakiston &
Crabb, 1202 Hay Street, West Perth or such
other time and place as the Vendor and the
Purchaser may agree.
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6.2 The Vendor agrees to do the following on
Completion:
(a) deliver to the Purchaser or its
solicitors executed transfers in
favour of the Purchaser of all the
Option Shares together with the
share certificates for the Option
Shares and consents that the
Purchaser reasonably requires;
(b) use its best endeavours to cause
the appointment to the board of
directors of the Company of two of
the Purchaser's nominees and the
resignation from the board of two
of the Vendor's nominees; and
(c) apply in writing for the shares
referred to in clause 3(b) and
agree in writing to be bound by the
constituent documents of the
Purchaser.
6.3 The Purchaser agrees to do the following on
Completion:
(a) issue the shares referred to in
clause 3(b) to the Vendor; and
(b) make payment on Completion in
accordance with clause 3,
if the Vendor complies with clause 6.2.
7 WARRANTIES, REPRESENTATIONS AND INDEMNITIES
7.1 The Vendor represents and warrants to the
Purchaser that each of the statements set
out in the appendix is accurate. Each of
the statements is to be treated as a
separate representation and warranty and
the interpretation of any statement made
may not be restricted by reference to or
inference from any other statement.
7.2 The Warranties are not extinguished or
affected by any investigation made by or on
behalf of the Purchaser into the affairs of
the Company or any Subsidiary or by any
other event or matter unless:
(a) the Purchaser has given a specific
written waiver or release;
(b) the claim relates to a matter which
is fairly disclosed in a formal
disclosure letter given by or on
behalf of the Vendor to the
Purchaser before the date of this
agreement; or
(c) the claim relates to a thing done
or not done after the date of this
agreement at the request or with
the approval of the Purchaser.
7.3 The Vendor acknowledges that it has made
and given the Warranties with the intention
of inducing the Purchaser to enter into
this agreement and that the Purchaser has
entered into this agreement in full
reliance on the Warranties.
7.4 The Vendor represents, warrants and
undertakes to the Purchaser that each of
the Warranties is true and correct on the
date of this agreement and will be at the
Completion Date (or,
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if applicable, the date on which the
consideration is payable under a takeover
offer if acceptance occurs as contemplated
under clause 9.1) as if made on and as at
each of those dates.
7.5 The Vendor indemnifies the Purchaser
against all liability or loss arising
directly or indirectly from, and any costs,
charges and expenses incurred in connection
with, any inaccuracy in or breach of any of
the Warranties.
7.6 If a payment is made for a breach of any
Warranty, the payment is to be treated as
an equal reduction in the purchase price of
each Option Share.
7.7 If any material breach or inaccuracy of any
of the Warranties becomes apparent to the
Purchaser on or before Completion the
Purchaser may, by notice to the Vendor,
terminate this agreement without prejudice
to any other remedy available to it. If
this agreement is so terminated then clause
5.5 applies with the necessary changes.
8 DEFAULT BY VENDOR
If the Vendor does not Complete, other than
as a result of default by the Purchaser,
the Purchaser may give the Vendor notice
requiring it to Complete within 5 Business
Days of receipt of the notice. If the
Vendor does not Complete within that
period, the Purchaser may elect to proceed
for specific performance or terminate this
agreement. In either case the Purchaser
may seek damages for the default. If this
agreement is so terminated then clause 5.5
will apply with the necessary changes.
This termination does not affect any other
rights the Purchaser has against the Vendor
at law or in equity.
9 ACCEPTANCE OF TAKEOVER OFFER
9.1 This agreement terminates automatically and
forthwith if the Vendor accepts in respect
of all of the Option Shares a takeover
offer made by the Purchaser as contemplated
in clause 4(b) prior to receipt by the
Vendor of a valid exercise notice as
contemplated in clause 5.1 (notwithstanding
that the takeover later fails to proceed,
whether by reason of non-fulfilment of a
condition precedent or otherwise).
9.2 If this agreement terminates under clause
9.1, clause 5.5 applies with the necessary
changes, except that all rights of the
Purchaser under clause 7 are preserved.
10 COSTS AND STAMP DUTY
10.1 The Vendor and the Purchaser agree to bear
their own legal and other costs and
expenses in connection with, the
preparation, execution and completion of
this agreement and of other related
documentation, except for stamp duty.
10.2 The Purchaser agrees to bear all stamp duty
payable or assessed in connection with this
agreement and the transfer of the Option
Shares to the Purchaser.
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11 NOTICES
11.1 A notice, approval, consent or other
communication in connection with this
agreement:
(a) must be in writing;
(b) must be marked for the attention of
the Company Secretary; and
(c) must be left at the address of the
addressee, or sent by prepaid
ordinary post (airmail if posted to
or from a place outside Australia)
to the address of the addressee or
sent by facsimile to the facsimile
number of the addressee which is
specified in this clause or if the
addressee notifies another address
or facsimile number then to that
address or facsimile number.
The address, and facsimile number of
each party is:
Vendor
Address: C/-Blakiston & Crabb
1202 Hay Street
West Perth WA 6005
Facsimile: (09) 322 1506
Purchaser
Address: 505 Front Avenue,
Coeur d'Alene
Idaho USA
Facsimile: (208) 765 2943
11.2 A notice, approval, consent or other
communication takes effect from the time it
is received unless a later time is
specified in it.
11.3 A letter or facsimile is taken to be
received:
(a) in the case of a posted letter, on
the third (seventh, if posted to or
from a place outside Australia) day
after posting; and
(b) in the case of facsimile, on
production of a transmission report
by the machine from which the
facsimile was sent which indicates
that the facsimile was sent in its
entirety to the facsimile number of
the recipient.
12 ASSIGNMENT
A party may not assign its rights under this
agreement without the consent of the other
party.
13 MISCELLANEOUS
EXERCISE OF RIGHTS
13.1 A party may exercise a right, power or
remedy at its discretion, and separately or
concurrently with another right, power or
remedy. A single or partial exercise of a
right, power or remedy by a party does not
prevent a further exercise of that or of
any other right, power or remedy. Failure
by a party to exercise or delay in
exercising a right, power or remedy does
not prevent its exercise.
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WAIVER AND VARIATION
13.2 A provision of or a right created under
this agreement may not be:
(a) waived except in writing signed by
the party granting the waiver; or
(b) varied except in writing signed by
the parties.
APPROVALS AND CONSENT
13.3 A party may give conditionally or
unconditionally or withhold its approval or
consent in its absolute discretion unless
this agreement expressly provides
otherwise.
REMEDIES CUMULATIVE
13.4 The rights, powers and remedies provided in
this agreement are cumulative with and not
exclusive of the rights, powers or remedies
provided by law independently of this
agreement.
NO MERGER
13.5 The Warranties in this agreement do not
merge on Completion.
SURVIVAL OF INDEMNITIES
13.6 Each indemnity in this agreement is a
continuing obligation, separate and
independent from the other obligations of
the parties and survives termination of
this agreement.
ENFORCEMENT OF INDEMNITIES
13.7 It is not necessary for a party to incur
expense or make payment before enforcing a
right of indemnity conferred by this
agreement.
FURTHER ASSURANCES
13.8 Each party agrees, at its own expense, on
the request of any other party, to do
everything reasonably necessary to give
effect to this agreement and the
transactions contemplated by it (including
the execution of documents) and to use all
reasonable endeavours to cause relevant
third parties to do likewise.
PUBLICITY
13.9 A party may not make press or other
announcements or releases relating to this
agreement and the transactions the subject
of this agreement without the approval of
the other parties to the form and manner of
the announcement or release unless that
announcement or release is required to be
made by law or by a stock exchange.
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14 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
14.1 This agreement and the transactions
contemplated by this agreement are governed
by the law in force in New South Wales.
14.2 Each party irrevocably and unconditionally
submits to the non-exclusive jurisdiction
of the courts of New South Wales and courts
of appeal from them for determining any
dispute concerning this agreement or the
transactions contemplated by this
agreement. Each party waives any right it
has to object to an action being brought in
those courts, to claim that the action has
been brought in an inconvenient forum, or
to claim that those courts do not have
jurisdiction.
14.3 Without preventing any other mode of
service, any document in an action
(including, but not limited to, any writ of
summons or other originating process or any
third or other party notice) may be served
on any party by being delivered to or left
for that party at its address for service
of notices under clause 11.
EXECUTED as an agreement
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APPENDIX
WARRANTIES AND REPRESENTATIONS
VENDOR'S QUALIFICATIONS
1 The Vendor is the registered holder and
beneficial owner of the Option Shares.
2 At Completion, there will be no mortgages,
charges, pledges, liens, encumbrances or
other security interests over or affecting
the Option Shares.
3 The Vendor has the power to enter into and
perform this agreement and has obtained all
necessary consents to enable it to do so.
4 The entry into and performance of this
agreement by the Vendor does not constitute
a breach of any obligation (including any
statutory, contractual or fiduciary
obligation), or default under any agreement
or undertaking, by which the Vendor is
bound.
5 No meeting has been convened, or resolution
proposed, or petition presented, and no
order has been made for the winding-up of
the Vendor. No voluntary arrangement has
been proposed or reached with any creditors
of the Vendor. The Vendor is able to pay
its debts as and when they fall due.
THE COMPANY
6 To the best of the knowledge of the Vendor,
having made due enquiry, the Company:
(a) is accurately described in recitals
A and B;
(b) has full corporate power to own its
properties, assets and business and
to carry on its business as now
conducted; and
(c) has done everything necessary to do
business lawfully in all
jurisdictions in which its business
is carried on.
7 No meeting has been convened or resolution
proposed, or petition presented, and no
order has been made, for the winding-up of
the Company or any Subsidiary. No
distress, execution or other similar order
or process has been levied on any of the
property or assets of the Company or any
Subsidiary. No voluntary arrangement has
been proposed or reached with any creditors
of the Company or any Subsidiary. No
receiver, receiver and manager, provisional
liquidator, liquidator or other officer of
the court has been appointed in relation to
the Company or any Subsidiary. The Company
is able to pay its debts as and when they
fall due.
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THE OPTION SHARES
8 The Option Shares comprise as at the date
of the agreement approximately 19.9% of the
total issued share capital of the Company,
and are fully paid. All shares in the
issued share capital of the Company are
voting shares.
9 There are no commitments in place under
which the Company or any Subsidiary is or
may be obliged at any time to issue any
shares or other securities of the Company,
other than as disclosed in a prospectus
issued by the Company dated 18 December
1995.
10 Other than as disclosed in writing by the
Vendor to the Purchaser prior to execution
of this agreement, there is no restriction
on the sale or transfer of the Option
Shares to the Purchaser.
CHANGES
11 To the best of the knowledge of the Vendor,
having made due enquiry, since the Last
Balance Date:
(a) the business of the Company and
each Subsidiary has been carried on
in the ordinary and usual course;
(b) there has been no change in the
assets, the liabilities, working
capital or the financial position
or profits of the Company from that
set out in the Last Accounts which
in the aggregate is materially
adverse to the Company and each
Subsidiary; and
(c) the business or financial position
of the Company and each Subsidiary
has not been materially and
adversely affected by any matter,
either financial or otherwise,
other than as disclosed by the Company to
Australian Stock Exchange Limited prior to
the date of this agreement.
12 The actual results of the underground
Yilgarn Star mine are substantially in
accordance with the final feasibility
report prepared by James Askew & Associates
on which the project is based, other than
as disclosed by the Company to Australian
Stock Exchange Limited prior to the date of
this agreement.
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EXECUTION
SIGNED by RICK WAYNE CRABB as )
attorney for IOMA PTY LTD under )
power of attorney dated 19-12-95 )
in the presence of: )
)
)
)
)
/s/ JOHN LEA BLUE )
................................. )
Signature of witness )
)
John Lea Blue )
................................. )
Name of witness (block letters) )
) [SIG]
................................. ) .............................
Address of witness ) By executing this agreement
) the attorney states that the
Businessman ) attorney has received no
................................. ) notice of revocation of the
Occupation of witness ) power of attorney
COEUR D'ALENE MINES CORPORATION
By: /s/ DENNIS E. WHEELER
..............................
Dennis E. Wheeler
Name: ..............................
Title: Chairman, President and Chief
Executive Officer
..............................