EXHIBIT 7.2
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AMENDED AND RESTATED
GOVERNANCE AGREEMENT
Among
FORDING CANADIAN COAL TRUST
- and -
FORDING (GP) ULC
- and -
FORDING AMALCO INC.
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TECK COMINCO LIMITED
August 24, 2005
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TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS AND PRINCIPLES OF INTERPRETATION................1
1.1 Definitions.................................................1
1.2 Interpretation and General Provisions.......................4
ARTICLE 2 TRUSTEES AND BOARD OF DIRECTORS.............................6
2.1 Teck Cominco Trustee Nominee................................6
2.2 Teck Cominco Director Nominee...............................6
ARTICLE 3 PROCEDURAL, VOTING AND DISCLOSURE MATTERS...................7
3.1 Procedure...................................................7
3.2 Voting......................................................7
3.3 Voting for Alternate Nominees...............................9
3.4 Voting not Compulsory.......................................9
3.5 Board Age Policies..........................................9
3.6 Disclosure..................................................9
ARTICLE 4 MISCELLANEOUS...............................................9
4.1 No Further Obligations of Fording Amalco....................9
4.2 Notices....................................................10
4.3 Submission to Jurisdiction.................................11
4.4 Liability of Trustees and Unitholders......................11
4.5 References to Acts Performed by the Trust or the Trustees..11
4.6 Ability to Set Aside Vote..................................12
4.7 Enforcement of Governance Agreements.......................12
4.8 Expenses...................................................12
4.9 Entire Agreement...........................................13
4.10 Termination................................................13
THIS AMENDED AND RESTATED GOVERNANCE AGREEMENT is made this 24th day of August,
2005
AMONG:
FORDING CANADIAN COAL TRUST,
an open-ended mutual fund trust existing under the laws of the
Province of Alberta,
(the "TRUST")
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FORDING (GP) ULC,
an unlimited liability company existing under the laws of the
Province of Nova Scotia and an indirect wholly-owned subsidiary of
the Trust,
("FORDING ULC"),
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TECK COMINCO LIMITED,
a corporation existing under the laws of Canada,
("TECK COMINCO"),
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FORDING AMALCO INC,
a corporation existing under the laws of Canada,
("FORDING AMALCO").
RECITALS:
A. Teck Cominco is a Unitholder.
B. Teck Cominco is a party to a governance agreement (the "Prior
Governance Agreement") dated February 28, 2003 between Teck Cominco,
the Trust and Fording Inc. pursuant to which Teck Cominco has the
right to nominate for election one trustee of the Trust and one
director of Fording Inc. subject to certain conditions.
C. Pursuant to the operation of the Plan of Arrangement undertaken
pursuant to section 192 of the CANADA BUSINESS CORPORATIONS ACT
involving, among others, Fording Inc. and the Trust, the successor by
amalgamation to Fording, Fording Amalco, transferred its 61% interest
in the Elk Valley Coal Partnership to Fording Limited Partnership of
which Fording ULC is the sole general partner.
D. In order to ensure that Teck Cominco continues to have substantially
the same governance rights as it did prior to the Arrangement, Teck
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Cominco, the Trust, Fording Amalco and Fording ULC wish to enter into
this Agreement to amend and restate the Prior Governance Agreement.
THEREFORE, the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
1.1 DEFINITIONS.
For purposes of the Agreement and the Recitals hereto, the following terms
shall have the following respective meanings:
(a) "AGREEMENT" means this amended and restated governance
agreement, including all schedules, amendments or
restatements as permitted, and references to "Article",
"Section" or "Schedule" mean the specified Article, Section
or Schedule of this Agreement;
(b) "AFFILIATE" of any Person means, at the time such
determination is made, any other Person controlling,
controlled by or under common control with such first Person,
where "control" means the possession, directly or indirectly,
of the power to direct the management and policies of a
Person whether through the ownership of voting securities or
otherwise;
(c) "ARRANGEMENT" means the arrangement under section 192 of the
CANADA BUSINESS CORPORATIONS ACT involving Fording Inc., the
Trust, the Unitholders, 6418511 Canada Inc., Fording LLC,
Fording (GP) ULC, the Fording Limited Partnership and certain
wholly-owned subsidiaries of the foregoing;
(d) "BOARD OF DIRECTORS" means the board of directors of Fording
ULC from time to time;
(e) "BUSINESS DAY" means a day which is not a Saturday, Sunday or
a statutory holiday in the Provinces of Alberta, British
Columbia and Ontario, on which the principal commercial banks
in downtown ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and Vancouver are generally open
for the transaction of commercial banking business;
(f) "CHAIR" and "CHIEF EXECUTIVE OFFICER" means the individual(s)
holding the offices of Chair and Chief Executive Officer of,
as applicable, the Trust or Fording ULC from time to time;
(g) "DECLARATION OF TRUST" means the amended and restated
declaration of trust of the Trust made as of the effective
date of the Plan of Arrangement, as the same may be further
amended, supplemented or restated from time to time in
accordance with its terms;
(h) "DIRECTOR" means a director of Fording ULC from time to time;
(i) "DISENTITLEMENT EVENT" has the meaning ascribed to it in
section 3.2(d) hereof;
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(j) "GOVERNANCE AGREEMENTS" means this Agreement and the amended
and restated governance agreement to be entered into among
the Trust, Fording Amalco, Fording ULC and OTPP;
(k) "INDEPENDENT TRUSTEE" means a Trustee who:
(i) is not an insider of any of the Principal
Unitholders or their respective affiliates and, for
so long as OTPP is a party to an effective
Governance Agreement and with respect to a Trustee
nominated by OTPP, is also not an insider of Luscar
or its affiliates, so long as Sherritt and OTPP,
jointly or severally, control Luscar;
(ii) would qualify as "INDEPENDENT" (as defined in
section 1.4 of Multilateral Instrument 52-110 -
AUDIT COMMITTEES) of each of the Principal
Unitholders, if the Trustee was a director (or
served in an analogous capacity) of each of the
Principal Unitholders; and
(iii) would qualify as "INDEPENDENT" (as defined in
section 1.4 of Multilateral Instrument 52-110 -
AUDIT COMMITTEES) of the Trust;
(l) "INSIDER" in relation to a Principal Unitholder means a
director, trustee, officer or employee of that Principal
Unitholder or any of its affiliates, or a director, trustee,
officer or employee of any Person with a greater than 10%
voting or economic interest in that Principal Unitholder, or
any affiliates of that Person;
(m) "LUSCAR" means Luscar Ltd., a corporation existing under the
laws of Alberta;
(n) "NSCA" means the COMPANIES ACT (Nova Scotia), as amended;
(o) "OTPP" means the Ontario Teachers' Pension Plan Board, a
non-share capital corporation established under the laws of
the Province of Ontario;
(p) "PARTIES" means the parties to the Agreement and "PARTY"
means any one of them;
(q) "PARTNERSHIP" means the Elk Valley Coal Partnership, a
general partnership formed under the laws of the Province of
Alberta, the partners of which are Fording LP, the Teck
Cominco Coal Partnership and The Quintette Coal Partnership;
(r) "PERSON" means an individual, sole proprietorship, body
corporate, company, partnership, firm, entity, limited
partnership, joint venture, trust or unincorporated
association, unincorporated syndicate, unincorporated trust,
the Crown or any agency or instrumentality thereof and where
the context so requires, any of the foregoing when they are
acting as trustee, executor, administrator or other legal
representative;
(s) "PLAN OF ARRANGEMENT" means the plan of arrangement of
Fording Inc. in the form approved by the Court of Queen's
Bench of Alberta on August 19, 2005;
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(t) "PRINCIPAL UNITHOLDER" means each of Teck Cominco and OTPP
(and their respective affiliates that own Units) for so long
as such entity continues to be party to an effective
Governance Agreement;
(u) "PROXY" has the meaning given to it in Section 3.2(b) of this
Agreement;
(v) "PROXY DEADLINE" has the meaning given to it in Section
3.2(b) of this Agreement;
(w) "PROXY NOTICE" has the meaning given to it in Section 3.2(c)
of this Agreement;
(x) "SHERRITT" means Sherritt International Corporation, a
corporation existing under the laws of the Province of New
Brunswick;
(y) "TECK COMINCO DIRECTOR NOMINEE" means the individual
nominated by Teck Cominco to serve as a Director pursuant to
Section 2.2(a) of this Agreement;
(z) "TECK COMINCO TRUSTEE NOMINEE" means the individual nominated
by Teck Cominco to serve as a Trustee pursuant to Section
2.1(a) of this Agreement;
(aa) "TECK COMINCO'S OWNERSHIP PERCENTAGE" means with respect to
Teck Cominco, at any time, the ratio, expressed as a
percentage, of:
(i) the number of Units beneficially owned by Teck
Cominco and its affiliates, to
(ii) the total number of Units then outstanding;
(bb) "TRUSTEE" means a trustee of the Trust from time to time;
(cc) "ULC INDEPENDENT DIRECTOR" means a director of Fording ULC
who:
(i) is not an insider of any of the Principal
Unitholders or their respective affiliates and, for
so long as OTPP is a party to an effective
Governance Agreement and with respect to a director
of Fording ULC nominated by OTPP, is also not an
insider of Luscar or its affiliates, so long as
Sherritt and OTPP, jointly or severally, control
Luscar;
(ii) would qualify as "INDEPENDENT" (as defined in
section 1.4 of Multilateral Instrument 52110 - AUDIT
COMMITTEES) of each of the Principal Unitholders, if
the director of Fording ULC was a director (or
served in an analogous capacity) of each of the
Principal Unitholders; and
(iii) would qualify as "INDEPENDENT" (as defined in
section 1.4 of Multilateral Instrument 52-110 -
AUDIT COMMITTEES) of Fording ULC;
(dd) "UNIT" means a unit of the Trust; and
(ee) "UNITHOLDERS" means the registered holders from time to time
of the Units and "UNITHOLDER" means any one of them.
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1.2 INTERPRETATION AND GENERAL PROVISIONS.
(a) CONSENT. Whenever a provision of this Agreement requires an
approval or consent by a Party and such approval or consent
is not delivered within the applicable time limit, then,
unless otherwise specified, the Party whose consent or
approval is required shall be conclusively deemed to have
withheld its approval or consent.
(b) GOVERNING LAW. This Agreement is a contract made under and
shall be governed by and construed in accordance with the
laws of the Province of Alberta and the federal laws of
Canada applicable in the Province of Alberta.
(c) HEADINGS. Headings of the Articles and Sections are inserted
for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
(d) INCLUDING. Where the words "including" or "includes" are used
in this Agreement, it means "including (or includes) without
limitation".
(e) NO STRICT CONSTRUCTION. The language used in this Agreement
is the language chosen by the Parties to express their mutual
intent, and no rule of strict construction shall be applied
against any Party.
(f) NUMBER AND GENDER. Unless the context otherwise requires,
words importing the singular include the plural and vice
versa and words importing gender include all genders.
(g) TIME. Time is of the essence in the performance of the
Parties' respective obligations.
(h) ASSIGNMENT. No Party may assign this Agreement or any rights
or obligations under this Agreement without the prior written
consent of each of the other Parties, such consent not to be
unreasonably withheld,
(i) ENUREMENT. This Agreement shall enure to the benefit of and
be binding upon the Parties and their respective successors
(including any successor by reason of amalgamation of any
Party) and permitted assigns.
(j) FURTHER ASSURANCES. The Parties shall with reasonable
diligence do all such things and provide all such reasonable
assurances as may be required to consummate the transactions
contemplated by the Agreement, and each Party shall provide
such further documents or instruments required by any other
Party as may be reasonably necessary or desirable to effect
the purpose of the Agreement and carry out its provisions.
(k) EXECUTION AND DELIVERY. This Agreement may be executed by the
Parties in counterparts and may be executed and delivered by
facsimile and all such counterparts and facsimiles shall
together constitute one and the same agreement.
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ARTICLE 2
TRUSTEES AND BOARD OF DIRECTORS
2.1 TECK COMINCO TRUSTEE NOMINEE.
(a) Subject to Section 3.2(d), Teck Cominco shall be entitled to
nominate one individual (the "TECK COMINCO TRUSTEE NOMINEE")
for election as a Trustee at each meeting of Unitholders at
which Trustees are elected, provided that:
(i) no individual nominated by Teck Cominco is then
serving as a Trustee for a term extending beyond
such meeting;
(ii) Teck Cominco's Ownership Percentage is at least
4.5%; and
(iii) the nominee shall be eligible under the Declaration
of Trust to serve as a Trustee.
(b) Subject to Section 3.2(d), the Trust shall cause the Teck
Cominco Trustee Nominee to be included in the slate of
nominees proposed by the Trustees to the Unitholders for
election as Trustees at each meeting of the Unitholders where
Trustees are to be elected by Unitholders, provided that:
(i) Teck Cominco continues to be entitled to a nominee;
and
(ii) no nominee of Teck Cominco is then serving as a
Trustee for a term extending beyond such meeting.
(c) Subject to Section 3.2(d), the Trust shall use reasonable
efforts to cause the election of the Teck Cominco Trustee
Nominee, including soliciting proxies in favour of the
election of the Teck Cominco Trustee Nominee.
2.2 TECK COMINCO DIRECTOR NOMINEE.
(a) Subject to Section 3.2(d), Teck Cominco shall be entitled to
nominate one individual (the "TECK COMINCO DIRECTOR NOMINEE")
for approval as Director at each meeting of Unitholders at
which proposed Directors are to be approved, provided that:
(i) no individual nominated by Teck Cominco is then
serving as a Director for a term extending beyond
such meeting;
(ii) Teck Cominco's Ownership Percentage is at least
4.5%; and
(iii) the nominee shall be eligible under the articles of
incorporation and by-laws governing Fording ULC and
the NSCA to serve as a Director.
(b) Subject to Section 3.2(d), the Trust shall cause the Teck
Cominco Director Nominee to be included in the slate of
nominees proposed by the Board of Directors to the
Unitholders for approval as Directors at each meeting of the
Unitholders where Directors are to be approved by
Unitholders, provided that:
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(i) Teck Cominco continues to be entitled to a nominee;
and
(ii) no nominee of Teck Cominco is then serving as a
Director for a term extending beyond such meeting.
(c) Subject to Section 3.2(d), the Trust shall use all reasonable
efforts to cause the election of the Teck Cominco Director
Nominee, including soliciting proxies in favour of the
approval of the Teck Cominco Director Nominee.
ARTICLE 3
PROCEDURAL, VOTING AND DISCLOSURE MATTERS
3.1 PROCEDURE.
(a) Teck Cominco shall advise the Trust, and the Trust shall
forthwith advise the other Principal Unitholders, of the Teck
Cominco Trustee Nominee and the Teck Cominco Director Nominee
at least 50 days prior to any meeting at which Trustees
and/or Directors are to be elected or approved by the
Unitholders, or within 10 days of being notified of the
record date for such meeting if such record date is within 60
days of such meeting.
(b) If Teck Cominco does not advise the Trust of the Teck Cominco
Trustee Nominee and the Teck Cominco Director Nominee prior
to the deadline, then Teck Cominco will be deemed to have
nominated its incumbent nominee(s).
(c) Upon request by the Trust, Teck Cominco shall promptly
provide the Trust with a statutory declaration stating the
number of Units beneficially owned by Teck Cominco and its
affiliates as at the record date referred to in Section
3.1(a).
3.2 VOTING.
(a) Subject to Sections 3.3 and 3.4, Teck Cominco shall vote its
Units in favour of all of the individuals nominated by the
Trust or the Board of Directors for election as Trustees and
approval as Directors, respectively, provided that:
(i) the Trust is in compliance with its obligations
under this Agreement to nominate the Teck Cominco
Trustee Nominee and the Teck Cominco Director
Nominee; and
(ii) if elected or approved, the Trustees and the
Directors nominated by the Trust will meet,
respectively, the requirements of the Declaration of
Trust relating to the eligibility and the
composition of the Trustees and the memorandum and
articles of association of Fording ULC and the NSCA,
relating to the eligibility and composition of the
Board of Directors.
(b) Teck Cominco shall deliver a proxy to the Trust that complies
with Section 3.2(a) (the "PROXY") at least ten days prior to
any meeting of Unitholders at which the election of Trustees
is to be considered (the "PROXY DEADLINE").
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(c) If the Trust does not receive the Proxy at least 15 days
before such meeting, the Trust shall provide notice to Teck
Cominco substantially in the form attached as Schedule "A"
(the "PROXY NOTICE") that it has not received the Proxy,
provided however that the Trust will not be liable to any
Person for any costs, damages or expenses which may be
incurred as a result of its failure to provide such notice.
(d) If Teck Cominco does not deliver the Proxy by the later of
the Proxy Deadline and two Business Days after delivery of a
Proxy Notice or if, at or prior to a meeting of Unitholders
at which the election of Trustees or the appointment of
Directors is to be considered, Teck Cominco revokes its Proxy
or otherwise votes against the Trustees or Directors
nominated in accordance with this Section 3.2(a) (each, a
"DISENTITLEMENT EVENT"), then:
(i) the Trust and the Board of Directors may withdraw
the Teck Cominco Trustee Nominee and the Teck
Cominco Director Nominee, respectively, from the
slate of nominees proposed by the Trustees and the
Trust may cease soliciting proxies in favour of the
Teck Cominco Trustee Nominee and Teck Cominco
Director Nominee and instead include an additional
Independent Trustee and an additional ULC
Independent Director as nominees for election as a
Trustee or approval as a Director as the case may
be; and
(ii) Teck Cominco shall no longer be entitled to nominate
a Trustee or a Director under this Agreement;
and for greater certainty, neither the Trust nor Fording ULC shall have any
remedy against Teck Cominco and the sole consequence of a breach of this
Section 3.2 shall be as set out in Section 3.2(d)(ii).
3.3 VOTING FOR ALTERNATE NOMINEES
From and after the first time at which a Disentitlement Event occurs, if Teck
Cominco chooses to vote its Units in respect of the election of Trustees or
approval of Directors at any meeting of Unitholders at which Trustees and/or
Directors are to be elected or approved by the Unitholders, then Teck Cominco
may vote for the then current Chairman and Chief Executive Officer of the Trust
and/or Fording ULC, if such person would otherwise be an Independent Trustee or
ULC Independent Director, as the case may be, but for the holding of such
positions, and in any event Teck Cominco must vote in favour of a slate
composed of:
(a) the nominees for Directors) and Trustee(s) that have
been proposed by the other Principal Unitholder
provided it is then entitled to nominate a Trustee
and Director under its Governance Agreement; and
(b) in respect of the remaining vacancies, such nominees
for Directors or Trustees as Teck Cominco
determines, PROVIDED that all such nominees must
qualify as ULC Independent Directors or Independent
Trustees, as applicable.
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3.4 VOTING NOT COMPULSORY.
Notwithstanding any other provision of this Agreement, but subject to the
consequences set out in Section 3.2(d), Teck Cominco shall not be obligated to
vote its Units in respect of the election of Trustees or the approval of
Directors. However, if Teck Cominco chooses to vote its Units in respect of the
election of Trustees or the approval of Directors, it must do so in accordance
with Section 3.2 or Section 3.3, as may then be applicable.
3.5 BOARD AGE POLICIES.
Any nominations by Teck Cominco of nominees to serve as a Director or Trustee,
as the case may be, whether as the Teck Cominco Director Nominee, Teck Cominco
Trustee Nominee or otherwise, shall be made in compliance with the then current
policy of the Board of Directors or of the Trustees, as the case may be, with
respect to the age of a Director or Trustee, as the case may be, provided that,
for greater certainty, any Director or Trustee nominated by a Principal
Unitholder and appointed to such office as of February 28, 2003 is
grandfathered under such policy so long as such person serves in such capacity
on a continuous basis from that time.
3.6 DISCLOSURE.
Within a reasonable time prior to the filing with the applicable Canadian
provincial and territorial securities commissions and regulatory authorities of
its proxy statement or information circular with respect to each meeting of
Unitholders at which Trustees are to be elected or Directors are to be
approved, the Trust shall provide Teck Cominco with a reasonable opportunity to
review and comment on the information contained in such proxy statement or
information circular applicable to the Teck Cominco Trustee Nominee and the
Teck Cominco Director Nominee.
ARTICLE 4
MISCELLANEOUS
4.1 NO FURTHER OBLIGATIONS OF FORDING AMALCO.
The Parties acknowledge and agree that following the effective time of the Plan
of Arrangement, Fording Amalco shall have no further rights or obligations
under this Agreement other than any obligations of Fording Inc. arising under
the original governance agreement dated February 28, 2003 prior to the
effective time of the Plan of Arrangement.
4.2 NOTICES.
Any notice, consent or approval required or permitted to be given in connection
with this Agreement (in this Section referred to as a "NOTICE") shall be in
writing and shall be sufficiently given if delivered (whether in person, by
courier service or other personal method of delivery), or if transmitted by
facsimile, with or without copies by e-mail (provided it is understood that
e-mail shall not be a form of delivery or transmission):
(a) in the case of a Notice to the Trust or Fording ULC at:
Fording ULC
▇▇▇▇▇ ▇▇▇▇
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▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇
with a copy to:
Osler, ▇▇▇▇▇▇ &Z Harcourt LLP
▇▇▇▇, ▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
(b) in the case of a Notice to Teck Cominco at:
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇
Attention: Corporate Secretary
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
Lang ▇▇▇▇▇▇▇▇
BCE Place
Suite 2500, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇
Any Notice delivered or transmitted to a Party as provided above shall be
deemed to have been given and received on the day it is delivered or
transmitted, provided that it is delivered or transmitted on a Business Day
prior to 5:00 p.m. local time in the place of delivery or receipt or
transmission. However, if the Notice is delivered or transmitted after 5:00
p.m. local time or if such day is not a Business Day then the Notice shall be
deemed to have been given and received on the next Business Day.
Any party may, from time to time, change its address by giving Notice to the
other Parties in accordance with the provisions of this Section.
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4.3 SUBMISSION TO JURISDICTION.
Any and all disputes arising under this Agreement, whether as to
interpretation, performance or otherwise, shall be subject to the exclusive
jurisdiction of the courts of the Province of Alberta and each of the Parties
hereby irrevocably attorns to the exclusive jurisdiction of the courts of such
province.
4.4 LIABILITY OF TRUSTEES AND UNITHOLDERS.
The Parties hereto acknowledge that the Trustees are entering into this
Agreement solely in their capacity as Trustees on behalf of the Trust and the
obligations of the Trust hereunder shall not be personally binding upon the
Trustees or any of the Unitholders of the Trust and that any recourse against
the Trust, the Trustees or any Unitholder in any manner in respect of any
indebtedness, obligation or liability of the Trust arising hereunder or arising
in connection herewith or from the matters to which this Agreement relates, if
any, including without limitation claims based on negligence or otherwise
tortious behavior, shall be limited to, and satisfied only out of, the Trust's
assets.
4.5 REFERENCES TO ACTS PERFORMED BY THE TRUST OR THE TRUSTEES.
For greater certainty, where any reference is made in this Agreement to:
(a) an act to be performed by the Trust or to rights of the
Trust, such reference shall be construed and applied for all
purposes to refer to an act to be performed by the Trustees
on behalf of the Trust or by some other Person duly
authorized to do so by the Trustees or pursuant to the
provisions hereof, or to rights of the Trustees, in their
capacity as Trustees of the Trust, as the case may be;
(b) actions, rights or obligations of the Trustees, such
reference shall be construed and applied for all purposes to
refer to actions, rights or obligations of the Trustees in
their capacity as Trustees of the Trust, and not in any other
capacities; and
(c) Teck Cominco, such reference shall include references to any
affiliate of Teck Cominco that holds Units, and Teck (Cominco
shall ensure that any actions to be taken or obligations to
be fulfilled by it under this Agreement shall be taken or
fulfilled by such affiliate, and such affiliate shall be
entitled to exercise Teck Cominco's rights under this
Agreement, in each case to the extent applicable and
necessary to give effect to Teck Cominco's rights and
obligations under this Agreement.
4.6 ABILITY TO SET ASIDE VOTE.
The Parties acknowledge and agree that an award of money damages would be
inadequate for any breach by Teck Cominco of Section 3.3, if applicable, if
Teck Cominco chooses to vote its Units in respect of the election of Trustees
or the approval of Directors and any such breach would cause the Trust, Fording
ULC or a party to another Governance Agreement irreparable harm. Accordingly,
the Parties agree that as the sole remedy hereunder, in the event that Teck
Cominco proposes to vote or votes its Units in respect of the election of
Trustees or approval of Directors in a manner that would breach or breaches
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Section 3.3, as the case may be, the Trust or Fording ULC, as the case may be,
will be entitled to equitable relief, including injunctive relief or, a
declaration as to its right to disregard the votes cast by Teck Cominco in
respect of the election of Trustees or the approval of Directors in determining
which Trustees were elected and which Directors were approved, or the right to
set aside the entire vote if it is reasonable to do so under the circumstances.
For greater certainty, such relief cannot be contrary to the provisions of
Section 3.4 and cannot obligate Teck Cominco to vote in any manner for Trustees
or Directors or remove its right to vote either in accordance with this
Agreement in the future or on any other matters on which it is entitled to
vote.
4.7 ENFORCEMENT OF GOVERNANCE AGREEMENTS.
Upon the written request of Teck Cominco, and upon Teck Cominco's full and
complete current indemnification of the Trust and/or Fording ULC, as the case
may be, of all of the Trust's or Fording ULC's costs and expenses, including
legal fees, costs and expenses, reasonable charges for the time of Directors,
Trustees, officers or employees and costs incurred for services under the
administrative services agreements between the Trust and the Partnership or
Fording ULC and the Partnership in relation to the action on a full cost
recovery basis, the Trust or Fording ULC, as the case may be, shall seek to
enforce Sections 3.3 and/or 4.6 of any of the other Governance Agreements if
the Principal Unitholder which is a party to such Governance Agreement chooses
to vote its Units in respect of the election of Trustees or the approval of
Directors in breach of Section 3.3 of such Governance Agreement as may be
applicable. Such indemnity payments shall be reimbursed to Teck Cominco to the
extent that costs and expenses are recovered by the Trust or Fording ULC from
the party against whom such action is taken.
4.8 EXPENSES.
Teck Cominco shall pay to the Trust or Fording ULC as applicable, and indemnify
the Trust and Fording ULC, as applicable, against all of the reasonable legal
fees, costs and expenses on a full cost recovery basis incurred by either of
them in connection with all actions against Teck Cominco in connection with the
enforcement by either the Trust or Fording ULC of any of their respective
rights or benefits conferred pursuant to or derived from this Agreement.
4.9 ENTIRE AGREEMENT.
This Agreement, the Declaration of Trust and the memorandum and articles of
association of Fording ULC constitute the entire agreement between the Parties
and set out all of the covenants, promises, warranties, representations,
conditions, understandings and agreements between the Parties pertaining to the
subject matter of this Agreement and supersede all prior agreements,
understandings, negotiations and discussions, whether oral or written. There
are no covenants, promises, warranties, representations, conditions,
understandings or other agreements, oral or written, express, implied or
collateral between the Parties in connection with the subject matter of this
Agreement except as specifically set forth in this Agreement and any document
required to be delivered pursuant to this Agreement.
4.10 TERMINATION.
This Agreement shall terminate at such time that Teck Cominco's Ownership
Percentage is less than 4.5%.
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IN WITNESS WHEREOF the Parties have executed this Amended and Restated
Governance Agreement as of the date first written above.
FORDING CANADIAN COAL
TRUST, by its authorized
signatories for and on
behalf of its Trustees
By: /s/ ▇.▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Corporate Secretary
FORDING (GP) ULC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Corporate Secretary
TECK COMINCO LIMITED
By: /s/ ▇▇▇▇▇ Rozee
------------------------------------
Name: ▇▇▇▇▇ Rozee
Title:
FORDING AMALCO INC.
By: /S/ ▇.▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
SCHEDULE A
NOTICE RESPECTING SUBMITTING OF PROXY
FOR FORDING CANADIAN COAL TRUST
-------------------------------
TO: TECK COMINCO LIMITED ("Teck Cominco")
COPY: LANG ▇▇▇▇▇▇▇▇
FROM: FORDING CANADIAN COAL TRUST (the "Trust")
FOR IMMEDIATE ACTION. REQUEST FOR PROXY PURSUANT TO THE GOVERNANCE AGREEMENT
AMONG TECK COMINCO, THE TRUST, FORDING AMALCO INC. AND FORDING (GP) ULC DATED
AUGUST [o], 2005 (THE "GOVERNANCE AGREEMENT").
Notice is hereby given to you by the Trust that your proxy for the upcoming
meeting (the "MEETING") of Unitholders of the Trust to be held on [o] has not
been received by the Trust. The proxy provides for your vote in favour of the
Trustees of the Trust and approval of the Directors of Fording (GP) ULC, each
of which have been nominated to stand for election or approval by the
Unitholders, as the case may be, at the Meeting.
The failure to comply with this Notice by [o] shall entitle the Trust to
withdraw your nominee from the slate of nominees recommended by the Trustees
and the Board of Directors to the Unitholders for election as Trustees or
approval as Directors, as the case may be, and shall entitle the Trust and the
Board of Directors, as the case may be, instead to include an additional
Independent Trustee and ULC Independent Director as a nominee.
Defined terms used in this Notice which are not otherwise defined shall have
the meaning given to them in the Governance Agreement.