EXHIBIT 4.5
FORM OF
VOTING AND EXCHANGE TRUST AGREEMENT
AGREEMENT made as of _________________, 2004, among Coeur d'▇▇▇▇▇
▇▇▇▇▇ Corporation, a corporation existing under the laws of Idaho ("COEUR
CORP."), Coeur d'▇▇▇▇▇ ▇▇▇▇▇ Holdings Company ("COEUR HOLDINGS") Coeur d'Alene
Canadian Acquisition Corporation, a corporation existing under the laws of New
Brunswick ("ACQUISITIONCO") and _________________, a trust company incorporated
under the laws of Canada (hereinafter referred to as "TRUSTEE").
RECITALS:
WHEREAS Coeur Corp., together with Coeur Holdings, Coeur d'Alene
Acquisition 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 for, among other things, one share of
Coeur Common Stock (as hereinafter defined)
AND WHEREAS the parties desire to make appropriate provision and to
establish a procedure whereby (i) voting rights in Coeur (as hereinafter
defined) shall be exercisable by Beneficiaries (as hereinafter defined) from
time to time of Exchangeable Shares by and through the Trustee, which will hold
legal title to the Special Voting Share (as hereinafter defined) to which voting
rights attach for the benefit of Beneficiaries, and (ii) the rights to require
Coeur or, at the option of Coeur, Coeur ULC to purchase Exchangeable Shares from
the Beneficiaries shall be exercisable by Beneficiaries from time to time of
Exchangeable Shares by and through the Trustee, which will hold legal title to
such rights for the benefit of the Beneficiaries;
AND WHEREAS these recitals and any statements of fact in this agreement
are made by Coeur and Acquisitionco and not by the Trustee;
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
1.1 DEFINITIONS
In this agreement, each initially capitalized term and the terms
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 shall have the following meanings:
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"AUTOMATIC EXCHANGE RIGHT" has the meaning ascribed thereto in
Section 5.12(2).
"BENEFICIARIES" means the registered holders from time to time of
Exchangeable Shares, other than Coeur and its Subsidiaries,
provided that an Underlying Holder that becomes a registered
holder of Exchangeable Shares pursuant to the exercise of a
Special Share Warrant to acquire Exchangeable Shares, or the
conversion or exchange of a Special Share, shall only become a
Beneficiary upon surrender of the Certificate of Entitlement
together with the Primary Security (for which such Underlying
Holder will receive such Exchangeable Shares) to which it is
attached.
"BENEFICIARY VOTES" has the meaning ascribed thereto in Section
4.2.
"CERTIFICATE OF ENTITLEMENT" means the certificate in the form
attached hereto as Schedule "A" evidencing Rights of Entitlement
issued to Underlying Holders in accordance with the terms of this
agreement immediately following the issuance of Primary
Securities.
"COEUR" means, prior to the Coeur Reorgnization, Coeur Corp. and,
following the Coeur Reorganization, Coeur Holdings, which is
intended to be the successor registrant to Coeur Corp.
"COEUR CONSENT" has the meaning ascribed thereto in Section 4.2.
"COEUR LIQUIDATION EVENT" has the meaning ascribed thereto in
Section 5.12(1).
"COEUR LIQUIDATION EVENT EFFECTIVE DATE" has the meaning ascribed
thereto in Section 5.12(3).
"COEUR MEETING" has the meaning ascribed thereto in Section 4.2.
"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'▇▇▇▇▇ ▇▇▇▇▇ Corporation" and in connection therewith
Coeur Holdings will become the successor registrant to Coeur
Corp.
"EXCHANGE RIGHT" has the meaning ascribed thereto in Section 5.1.
"INCLUDING" means "including without limitation" and "INCLUDES"
means "includes without limitation".
"INDEMNIFIED PARTIES" has the meaning ascribed thereto in Section
9.1.
"INSOLVENCY EVENT" means (i) the institution by Acquisitionco of
any proceeding to be adjudicated a bankrupt or insolvent or to be
dissolved or wound up, or the consent of Acquisitionco to the
institution of bankruptcy, insolvency, dissolution or winding-up
proceedings against it, or (ii) the filing by Acquisitionco of a
petition, answer or consent seeking dissolution or winding-up
under any bankruptcy, insolvency or analogous laws, including,
without limitation, the
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Companies Creditors' Arrangement Act (Canada) and the Bankruptcy
and Insolvency Act (Canada), and the failure by Acquisitionco
within 15 days of becoming aware thereof, or the consent by
Acquisitionco to the filing of any such petition or to the
appointment of a receiver, or (iii) the making by Acquisitionco
of a general assignment for the benefit of creditors, or the
admission in writing by Acquisitionco of its inability to pay its
debts generally as they become due, or (iv) Acquisitionco not
being permitted, pursuant to solvency requirements of applicable
law, to redeem any Retracted Shares pursuant to Section 6.1(4) of
the Share Provisions.
"LIST" has the meaning ascribed thereto in Section 4.6.
"OFFICER'S CERTIFICATE" means, with respect to Coeur or
Acquisitionco, as the case may be, a certificate signed by any
one of the Chairman of the Board, the President, any
Vice-President or any other senior officer of Coeur or
Acquisitionco, as the case may be.
"PRIMARY SECURITY" means any of the Special Share Warrants and/or
Special Shares held by an Underlying Holder.
"RIGHTS OF ENTITLEMENT" means the right of an Underlying Holder,
at the time such Underlying Holder becomes a registered holder of
Exchangeable Shares as a result of:
(A) the exercise of the Special Share Warrants to
acquire Exchangeable Shares pursuant to the terms
thereof,
(B) the conversion of Special Shares pursuant to the
provisions thereof, or
(C) such other event that results in such Underlying
Holder receiving Exchangeable Shares in return for
its Primary Security,
to become a Beneficiary under this agreement, for no additional
consideration, upon surrender to the Trustee of the Certificate
of Entitlement together with the Primary Security (for which such
Underlying Holder will receive such Exchangeable Shares) to which
it is attached.
"SPECIAL SHARES" means the special shares in the capital of
Acquisitionco.
"SPECIAL SHARE WARRANTS" means the warrants to acquire Special
Shares in the capital of Acquisitionco (which will become
warrants to acquire Exchangeable Shares pursuant to the
anti-dilution provisions thereof).
"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 Beneficiaries.
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"TRUST" means the trust created by this agreement.
"TRUST ESTATE" means the Special Voting Share, any other
securities, the Exchange Right and any money or other rights or
assets that may be held by the Trustee from time to time pursuant
to this agreement.
"TRUSTEE" means __________________ and, subject to the provisions
of Article 10, includes any successor trustee.
"UNDERLYING HOLDER" means any holder of Special Share Warrants or
holder of Special Shares, who may receive Exchangeable Shares on
the exercise of such Special Share Warrants or conversion of such
Special Shares.
"VOTING RIGHTS" means the voting rights attached to the Special
Voting Share.
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.
The division of this agreement into Articles and sections and the
insertion of headings are for reference purposes only and shall not affect the
interpretation of this agreement. Unless otherwise indicated, any reference in
this Agreement to an "Article" or "Section" refers to the specified Article or
Section of this agreement.
1.3 NUMBER, GENDER, ETC.
In this agreement, unless the context otherwise requires words
importing the singular number include the plural and vice versa. Words importing
any gender shall include all genders and words importing persons include
individuals, corporations, partnerships, companies, associations, trusts,
unincorporated organizations, governmental bodies and other legal or business
entities of any kind.
1.4 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.
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.
1.6 CURRENCY
In this agreement, unless stated otherwise, all dollar amounts
are in Canadian dollars.
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ARTICLE 2
TRUST
2.1 ESTABLISHMENT OF TRUST
The purpose of this agreement is to create the Trust for the
benefit of the Beneficiaries, as herein provided. The Trustee will hold the
Special Voting Share in order to enable the Trustee to exercise the Voting
Rights and will hold the Exchange Right in order to enable the Trustee to
exercise such right and will hold the other rights granted in or resulting from
the Trustee being a party to this agreement in order to enable the Trustee to
exercise or enforce such rights, in each case as trustee for and on behalf of
the Beneficiaries as provided in this agreement.
ARTICLE 3
SPECIAL VOTING SHARE
3.1 ISSUE AND OWNERSHIP OF THE SPECIAL VOTING SHARE
Simultaneously with the execution and delivery of this agreement,
Coeur will issue to and deposit with the Trustee the Special Voting Share to be
hereafter held of record by the Trustee as trustee for and on behalf of, and for
the use and benefit of, the Beneficiaries and in accordance with the provisions
of this agreement. Coeur hereby acknowledges receipt from the Trustee as trustee
for and on behalf of the Beneficiaries of good and valuable consideration (and
the adequacy thereof) for the issuance of the Special Voting Share by Coeur to
the Trustee. During the term of the Trust and subject to the terms and
conditions of this agreement, the Trustee shall possess and be vested with full
legal ownership of the Special Voting Share and shall be entitled to exercise
all of the rights and powers of an owner with respect to the Special Voting
Share provided that the Trustee shall:
(a) hold the Special Voting Share and the legal title thereto as
trustee solely for the use and benefit of the Beneficiaries in
accordance with the provisions of this agreement; and
(b) except as specifically authorized by this agreement, have no
power or authority to sell, transfer, vote or otherwise deal in
or with the Special Voting Share and the Special Voting Share
shall not be used or disposed of by the Trustee for any purpose
other than the purposes for which this Trust is created pursuant
to this agreement.
3.2 LEGENDED SHARE CERTIFICATES
Acquisitionco will cause each certificate representing
Exchangeable Shares to bear an appropriate legend notifying the Beneficiaries of
their right to instruct the Trustee with respect to the exercise of the Voting
Rights in respect of the Exchangeable Shares of the Beneficiaries.
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3.3 SAFE KEEPING OF CERTIFICATE
The certificate representing the Special Voting Share shall at
all times be held in safe keeping by the Trustee or its agent.
ARTICLE 4
EXERCISE OF VOTING RIGHTS
4.1 VOTING RIGHTS
The Trustee, as the holder of record of the Special Voting Share,
shall be entitled to all of the Voting Rights, including the right to consent to
or vote in person or by proxy the Special Voting Share, on any matter, question,
proposal or proposition whatsoever that may properly come before the
shareholders of Coeur at a Coeur Meeting. The Voting Rights shall be and remain
vested in and exercised by the Trustee. Subject to Section 7.15 hereof, the
Trustee shall exercise the Voting Rights only on the basis of instructions
received pursuant to this Article 4 from Beneficiaries entitled to instruct the
Trustee as to the voting thereof at the time at which the Coeur Consent is
sought or the Coeur Meeting is held. To the extent that no instructions are
received from a Beneficiary with respect to the Voting Rights to which such
Beneficiary is entitled, the Trustee shall not exercise or permit the exercise
of such Voting Rights.
4.2 NUMBER OF VOTES
(1) With respect to all meetings of shareholders of Coeur at which holders
of shares of Coeur Common Stock are entitled to vote (each, a "COEUR
MEETING") and with respect to all written consents sought from the
holders of shares of Coeur Common Stock (a "COEUR CONSENT"), each
Beneficiary shall be entitled to instruct the Trustee to cast and
exercise, in the manner instructed, one vote for each Exchangeable Share
owned of record by such Beneficiary on the record date established by
Coeur or by applicable law for such Coeur Meeting or Coeur Consent, as
the case may be (the "BENEFICIARY VOTES"), in respect of each matter,
question, proposal or proposition to be voted on at such Coeur Meeting
or to be consented to in connection with such Coeur Consent.
4.3 MAILINGS TO SHAREHOLDERS
(1) With respect to each Coeur Meeting and Coeur Consent, the Trustee will
use its reasonable best efforts to mail or cause to be mailed (or
otherwise communicate in the same manner as Coeur utilizes in
communications to holders of Coeur Common Stock, subject to the Trustee
being advised in writing of such manner and provided that such manner of
communications is reasonably available to the Trustee) to each of the
Beneficiaries named in the List at the Beneficiaries' respective
addresses as set forth in the List, on the same day as the initial
mailing or notice (or other communication) with respect thereto is given
by Coeur to its shareholders:
(a) a copy of such notice, together with any related materials,
including any circular or information statement or listing
particulars, to be provided to shareholders of Coeur but
excluding proxies to vote Coeur Common Stock;
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(b) a statement that such Beneficiary is entitled to instruct the
Trustee as to the exercise of the Beneficiary Votes with respect
to such Coeur Meeting or Coeur Consent, as the case may be, or,
pursuant and subject to Section 4.7, to attend such Coeur Meeting
and to exercise personally the Beneficiary Votes thereat;
(c) a statement as to the manner in which such instructions may be
given to the Trustee, including an express indication that
instructions may be given to the Trustee to give:
(i) a proxy to such Beneficiary or his, her or its designee to
exercise personally such holder's Beneficiary Votes; or
(ii) a proxy to a designated agent or other representative of
the management of Coeur to exercise such Beneficiary
Votes;
(d) a statement that if no such instructions are received from the
Beneficiary, the Beneficiary Votes to which such Beneficiary is
entitled will not be exercised;
(e) a form of direction whereby the Beneficiary may so direct and
instruct the Trustee as contemplated herein; and
(f) a statement of (i) the time and date by which such instructions
must be received by the Trustee in order to be binding upon it,
which in the case of a Coeur Meeting shall not be earlier than
the close of business on the second Business Day prior to such
meeting, and (ii) the method for revoking or amending such
instructions.
(2) The materials referred to in this Section 4.3 are to be provided to the
Trustee by Coeur, and the materials referred to in Sections 4.3(1)(c),
4.3(1)(e) and 4.3(1)(f) shall (if reasonably practicable to do so) be
subject to reasonable comment by the Trustee in a timely manner;
provided, however, that the Trustee shall have no obligation to review
such materials. Subject to the foregoing, Coeur shall ensure that the
materials to be provided to the Trustee are provided in sufficient time
to permit the Trustee to comment as aforesaid and to send all materials
to each Beneficiary at the same time as such materials are first sent to
holders of Coeur Common Stock. Coeur agrees not to communicate with
holders of Coeur Common Stock with respect to the materials referred to
in this Section 4.3 otherwise than by mail unless such method of
communication is also reasonably available to the Trustee for
communication with the Beneficiaries.
(3) For the purpose of determining Beneficiary Votes to which a Beneficiary
is entitled in respect of any Coeur Meeting or Coeur Consent, the number
of Exchangeable Shares owned of record by the Beneficiary shall be
determined at the close of business on the record date established by
Coeur or by applicable law for purposes of determining shareholders
entitled to vote at such Coeur Meeting or to give written consent in
connection with such Coeur Consent. Coeur will notify the Trustee of any
decision of the board of directors of Coeur with respect to the calling
of any Coeur Meeting or the seeking of any Coeur Consent and shall
provide all necessary information and materials to the Trustee in each
case promptly and in any event in sufficient time to enable the Trustee
to perform its obligations contemplated by this Section 4.3.
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4.4 COPIES OF SHAREHOLDER INFORMATION
Coeur will deliver to the Trustee copies of all proxy materials
(including notices of Coeur Meetings but excluding proxies to vote Coeur Common
Stock), information statements, reports (including all interim and annual
financial statements) and other written communications that, in each case, are
to be distributed by Coeur from time to time to holders of Coeur Common Stock in
sufficient quantities and in sufficient time so as to enable the Trustee to send
or cause to be sent those materials to each Beneficiary at the same time as such
materials are first sent to holders of Coeur Common Stock. The Trustee will mail
or otherwise send, or cause to be mailed or otherwise sent, to each Beneficiary,
at the expense of Coeur, copies of all such materials (and all materials
specifically directed to the Beneficiaries or to the Trustee for the benefit of
the Beneficiaries by Coeur) received by the Trustee from Coeur contemporaneously
with the sending of such materials to holders of Coeur Common Stock. The Trustee
will also make available for inspection by any Beneficiary at the Trustee's
principal office in Toronto all proxy materials, information statements, reports
and other written communications that are:
(a) received by the Trustee as the registered holder of the Special
Voting Share and made available by Coeur generally to the holders
of Coeur Common Stock; or
(b) specifically directed to the Beneficiaries or to the Trustee for
the benefit of the Beneficiaries by Coeur.
4.5 OTHER MATERIALS
Immediately after receipt by Coeur or stockholders of Coeur of
any material sent or given by or on behalf of a third party to holders of Coeur
Common Stock generally, including, without limitation, dissident proxy and
information circulars (and related information and material) and take-over bid
and securities exchange take-over bid circulars (and related information and
material), Coeur shall use its reasonable efforts to obtain and deliver to the
Trustee copies thereof in sufficient quantities so as to enable the Trustee to
forward or cause to be forwarded such material (unless the same has been
provided directly to Beneficiaries by such third party) to each Beneficiary as
soon as possible thereafter. As soon as reasonably practicable after receipt
thereof, the Trustee will mail or otherwise send, or cause to be mailed or
otherwise sent, to each Beneficiary, at the expense of Coeur, copies of all such
materials received by the Trustee from Coeur. The Trustee will also make
available for inspection by any Beneficiary at the Trustee's principal office in
Toronto copies of all such materials.
4.6 LIST OF PERSONS ENTITLED TO VOTE
Acquisitionco shall, (a) prior to each annual, general and
special Coeur Meeting or the seeking of any Coeur Consent and (b) forthwith upon
each request made at any time by the Trustee in writing, prepare or cause to be
prepared a list (a "LIST") of the names and addresses of the Beneficiaries
arranged in alphabetical order and showing the number of Exchangeable Shares
held of record by each such Beneficiary, in each case at the close of business
on the date specified by the Trustee in such request or, in the case of a List
prepared in connection with a Coeur Meeting or a Coeur Consent, at the close of
business on the record date established by Coeur or pursuant to applicable law
for determining the holders of Coeur Common Stock entitled to receive notice of
and/or to vote at such Coeur Meeting or to give consent in connection with a
Coeur Consent. Each such List shall be delivered to the Trustee promptly after
receipt by
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Acquisitionco of such request or the record date for such meeting or seeking of
consent, as the case may be, and, in any event, within sufficient time as to
enable the Trustee to perform its obligations under this agreement. Coeur agrees
to give Acquisitionco written notice (with a copy to the Trustee) of the calling
of any Coeur Meeting or the seeking of any Coeur Consent, together with the
record date therefor, sufficiently prior to the date of the calling of such
meeting or seeking such consent so as to enable Acquisitionco to perform its
obligations under this Section 4.6.
4.7 ENTITLEMENT TO DIRECT VOTES
Any Beneficiary named in a List prepared in connection with any
Coeur Meeting or any Coeur Consent will be entitled (a) to instruct the Trustee
in the manner described in Section 4.3 hereof with respect to the exercise of
the Beneficiary Votes to which such Beneficiary is entitled or (b) to attend
such meeting and personally to exercise thereat (or to exercise with respect to
any written consent), as the proxy of the Trustee, the Beneficiary Votes to
which such Beneficiary is entitled or (c) to appoint a third party as the proxy
of the Trustee to attend such meeting and exercise thereat the Beneficiary's
voting rights to which such Beneficiary is entitled except, in each case, to the
extent that such Beneficiary has transferred the ownership of any Exchangeable
Shares in respect of which such Beneficiary is entitled to Beneficiary Votes
after the close of business on the record date for such meeting or seeking of
consent.
4.8 VOTING BY TRUSTEE AND ATTENDANCE OF TRUSTEE REPRESENTATIVE AT
MEETING
(1) In connection with each Coeur Meeting and Coeur Consent, the Trustee
shall exercise, either in person or by proxy, in accordance with the
instructions received from a Beneficiary pursuant to Section 4.3 hereof,
the Beneficiary Votes as to which such Beneficiary is entitled to direct
the vote (or any lesser number thereof as may be set forth in the
instructions); provided, however, that such written instructions are
received by the Trustee from the Beneficiary prior to the time and date
fixed by the Trustee for receipt of such instruction in the notice sent
or caused to be sent by the Trustee to the Beneficiary pursuant to
Section 4.3.
(2) The Trustee shall cause such representatives who are empowered by it to
sign and deliver, on behalf of the Trustee, proxies for Voting Rights
enabling a Beneficiary to attend each Coeur Meeting. Upon submission by
a Beneficiary (or its designee) named in the List prepared in connection
with the relevant meeting of identification satisfactory to the
Trustee's representative, and at the Beneficiary's request, such
representative shall sign and deliver to such Beneficiary (or its
designee) a proxy to exercise personally the Beneficiary Votes as to
which such Beneficiary is otherwise entitled hereunder to direct the
vote, if such Beneficiary either (i) has not previously given the
Trustee instructions pursuant to Section 4.3 in respect of such meeting
or (ii) submits to such representative written revocation of any such
previous instructions. At such meeting, the Beneficiary (or its
designee) exercising such Beneficiary Votes shall have the same rights
in respect of such Beneficiary Votes as the Trustee to speak at the
meeting in respect of any matter, question, proposal or proposition, to
vote by way of ballot at the meeting in respect of any matter, question,
proposal or proposition, and to vote at such meeting by way of a show of
hands in respect of any matter, question or proposition.
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4.9 DISTRIBUTION OF WRITTEN MATERIALS
Any written materials distributed by the Trustee to the
Beneficiaries pursuant to this agreement shall be sent by mail (or otherwise
communicated in the same manner as Coeur utilizes in communications to holders
of Coeur Common Stock subject to the Trustee being advised in writing of such
manner and provided such manner of communications is reasonably available to the
Trustee) to each Beneficiary at its address as shown on the register of holders
of Exchangeable Shares maintained by the registrar of the Exchangeable Shares.
Acquisitionco shall provide or cause to be provided to the Trustee for purposes
of communication, on a timely basis and without charge or other expense:
(a) a current List; and
(b) upon the request of the Trustee, mailing labels to enable the
Trustee to carry out its duties under this agreement.
4.10 TERMINATION OF VOTING RIGHTS
All of the rights of a Beneficiary with respect to the
Beneficiary Votes exercisable in respect of the Exchangeable Shares held by such
Beneficiary, including the right to instruct the Trustee as to the voting of or
to vote personally such Beneficiary Votes, shall be deemed to be surrendered by
the Beneficiary to Coeur or Coeur ULC, as the case may be, and such Beneficiary
Votes and the Voting Rights represented thereby shall cease immediately upon the
delivery by such holder to the Trustee of the certificates representing such
Exchangeable Shares in connection with the exercise by the Beneficiary of the
Exchange Right or the occurrence of the automatic exchange of Exchangeable
Shares for Coeur Common Stock, as specified in Article 5 hereof, or upon the
retraction or redemption of Exchangeable Shares pursuant to Article 6 or Article
7 of the Share Provisions, or upon the effective date of 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 pursuant to Article 5 of the Share Provisions, or upon the purchase of
Exchangeable Shares from the holder thereof by Coeur or Coeur ULC pursuant to
the exercise by Coeur or Coeur ULC of the Retraction Call Right, the Redemption
Call Right or the Liquidation Call Right (unless Coeur shall not have delivered
the requisite Coeur Common Stock and cheque, if any, delivered in exchange
therefor to the Trustee pending delivery to the Beneficiaries).
ARTICLE 5
EXCHANGE RIGHT, AUTOMATIC EXCHANGE RIGHT
AND COEUR SUPPORT
5.1 GRANT AND OWNERSHIP OF THE AUTOMATIC EXCHANGE RIGHT AND THE
EXCHANGE RIGHT
Coeur hereby grants to the Trustee as trustee for and on behalf
of, and for the use and benefit of, the Beneficiaries: (i) the Automatic
Exchange Right, and (ii) the right (the "EXCHANGE RIGHT"), upon the occurrence
and during the continuance of an Insolvency Event, to require Coeur to purchase
or to cause Coeur ULC to purchase from each or any Beneficiary all or any part
of the Exchangeable Shares held by the Beneficiary, all in accordance with the
provisions of this agreement. Coeur hereby acknowledges receipt from the
Trustee, as trustee for
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and on behalf of the Beneficiaries, of good and valuable consideration (and the
adequacy thereof) for the grant of the Automatic Exchange Right and the Exchange
Right by Coeur to the Trustee. During the term of the Trust and subject to the
terms and conditions of this agreement, the Trustee shall possess and be vested
with full legal ownership of the Automatic Exchange Right and the Exchange Right
and shall be entitled to exercise all of the rights and powers of an owner with
respect to the Automatic Exchange Right and the Exchange Right, provided that
the Trustee shall:
(a) hold the Automatic Exchange Right and the Exchange Right and the
legal title thereto as trustee solely for the use and benefit of
the Beneficiaries in accordance with the provisions of this
agreement; and
(b) except as specifically authorized by this agreement, have no
power or authority to exercise or otherwise deal in or with the
Automatic Exchange Right and the Exchange Right, and the Trustee
shall not exercise such right for any purpose other than the
purposes for which this Trust is created pursuant to this
agreement.
5.2 LEGENDED SHARE CERTIFICATES
Acquisitionco will cause each certificate representing
Exchangeable Shares to bear an appropriate legend notifying the Beneficiaries of
the Automatic Exchange Right, the Exchange Right and of their right to instruct
the Trustee with respect to the exercise of the Exchange Right in respect of the
Exchangeable Shares held by a Beneficiary.
5.3 EXERCISE OF EXCHANGE RIGHT
The Exchange Right shall be and remain vested in and exercisable
by the Trustee. Subject to Section 7.15 hereof, the Trustee shall exercise the
Exchange Right only on the basis of instructions received pursuant to this
Article 5 from Beneficiaries entitled to instruct the Trustee as to the exercise
thereof. To the extent that no instructions are received from a Beneficiary with
respect to the Exchange Right, the Trustee shall not exercise or permit the
exercise of the Exchange Right.
5.4 PURCHASE PRICE
The purchase price payable by Coeur or Coeur ULC for each
Exchangeable Share to be purchased by Coeur or Coeur ULC under the Exchange
Right shall be an amount per share equal to (a) the Current Market Price of a
share of Coeur Common Stock on the last Business Day prior to the day of closing
of the purchase and sale of such Exchangeable Share under the Exchange Right,
which shall be satisfied in full by causing to be delivered to such holder one
share of Coeur Common Stock, plus (b) the Dividend Amount, if any. The purchase
price for each such Exchangeable Share so purchased may be satisfied only by
Coeur or Coeur ULC delivering or causing to be delivered to the Trustee, on
behalf of the relevant Beneficiary, one share of Coeur Common Stock and a cheque
for the balance, if any, of the purchase price without interest (less any amount
required to be withheld under the Income Tax Act (Canada) or United States tax
laws, or any provision of any federal, provincial, state, local or foreign tax
laws).
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5.5 EXERCISE INSTRUCTIONS
Subject to the terms and conditions herein set forth, a
Beneficiary shall be entitled, upon the occurrence and during the continuance of
an Insolvency Event, to instruct the Trustee to exercise the Exchange Right with
respect to all or any part of the Exchangeable Shares registered in the name of
such Beneficiary on the books of Acquisitionco. To cause the exercise of the
Exchange Right by the Trustee, the Beneficiary shall deliver to the Trustee, in
person or by certified or registered mail, at its principal office in Toronto,
Ontario or at such other places in Canada as the Trustee may from time to time
designate by written notice to the Beneficiaries, the certificates representing
the Exchangeable Shares which such Beneficiary desires Coeur to purchase, duly
endorsed in blank, and accompanied by such other documents and instruments as
may be required to effect a transfer of Exchangeable Shares under the NBBCA and
such additional documents and instruments as the Trustee or Acquisitionco may
reasonably require together with (a) a duly completed form of notice of exercise
of the Exchange Right, contained on the reverse of or attached to the
Exchangeable Share certificates, stating (i) that the Beneficiary thereby
instructs the Trustee to exercise the Exchange Right so as to require Coeur or
Coeur ULC to purchase from the Beneficiary the number of Exchangeable Shares
specified therein, (ii) that such Beneficiary has good title to and owns all
such Exchangeable Shares to be acquired by Coeur or Coeur ULC free and clear of
all liens, claims and encumbrances, (iii) the names in which the certificates
representing Coeur Common Stock issuable in connection with the exercise of the
Exchange Right are to be issued and (iv) the names and addresses of the persons
to whom such new certificates should be delivered and (b) payment (or evidence
satisfactory to the Trustee, Acquisitionco and Coeur of payment) of the taxes
(if any) payable as contemplated by Section 5.8 of this agreement. If only a
portion of the Exchangeable Shares represented by any certificate delivered to
the Trustee are to be purchased by Coeur or Coeur ULC under the Exchange Right,
a new certificate for the balance of such Exchangeable Shares shall be issued to
the holder at the expense of Acquisitionco.
5.6 DELIVERY OF COEUR COMMON STOCK; EFFECT OF EXERCISE
Promptly after receipt of the certificates representing the
Exchangeable Shares that a Beneficiary desires Coeur or Coeur ULC to purchase
under the Exchange Right (together with such documents and instruments of
transfer and a duly completed form of notice of exercise of the Exchange Right)
duly endorsed for transfer to Coeur or Coeur ULC, the Trustee shall notify Coeur
and Acquisitionco of its receipt of the same, which notice to Coeur and
Acquisitionco shall constitute exercise of the Exchange Right by the Trustee on
behalf of the holder of such Exchangeable Shares, and Coeur shall immediately
thereafter deliver or cause Coeur ULC to deliver to the Trustee, for delivery to
the Beneficiary of such Exchangeable Shares (or to such other persons, if any,
properly designated by such Beneficiary), a certificate for the number of shares
of Coeur Common Stock deliverable in connection with such exercise of the
Exchange Right (which shares shall be duly issued as fully paid and
non-assessable and shall be free and clear of any lien, claim or encumbrance,
security interest or adverse claim) and a cheque for the balance, if any, of the
purchase price therefor; provided, however, that no such delivery shall be made
unless and until the Beneficiary requesting the same shall have paid (or
provided evidence satisfactory to the Trustee, Acquisitionco and Coeur of the
payment of) the taxes (if any) payable as contemplated by Section 5.8 of this
agreement. Immediately upon the giving of notice by the Trustee to Coeur and
Acquisitionco of the exercise of the Exchange Right, as provided in this Section
5.6, the closing of the transaction of purchase and sale contemplated by the
Exchange Right shall be deemed to have occurred, and the Beneficiary of
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such Exchangeable Shares shall be deemed to have transferred to Coeur (or, at
Coeur's option, to Coeur ULC) all of its right, title and interest in and to
such Exchangeable Shares and the related interest in the Trust Estate and shall
not be entitled to exercise any of the rights of a holder in respect thereof,
other than the right to receive its proportionate part of the total purchase
price therefor, unless the requisite number of shares of Coeur Common Stock
(together with a cheque for the balance, if any, of the total purchase price
therefor) is not delivered by Coeur or Coeur ULC to the Trustee, for delivery to
such Beneficiary (or to such other persons, if any, properly designated by such
Beneficiary), within five Business Days of the date of the giving of such notice
by the Trustee, in which case the rights of the Beneficiary shall remain
unaffected until such shares of Coeur Common Stock are so delivered and any such
cheque is so delivered and paid. Concurrently with the closing of the
transaction of purchase and sale contemplated by the Exchange Right, such
Beneficiary shall be considered and deemed for all purposes to be the holder of
the shares of Coeur Common Stock delivered to it pursuant to the Exchange Right.
5.7 EXERCISE OF EXCHANGE RIGHT SUBSEQUENT TO RETRACTION
In the event that a Beneficiary has exercised its retraction
right under Article 6 of the Share Provisions to require Acquisitionco to redeem
any or all of the Exchangeable Shares held by the Beneficiary (the "Retracted
Shares") and is notified by Acquisitionco pursuant to Section 6.1(4) of the
Share Provisions that Acquisitionco will not be permitted as a result of
solvency requirements of applicable law to redeem all such Retracted Shares,
subject to receipt by the Trustee of written notice to that effect from
Acquisitionco and provided that neither Coeur nor Coeur ULC shall have exercised
its Retraction Call Right with respect to the Retracted Shares and that the
Beneficiary shall not have revoked the retraction request delivered by the
Beneficiary to Acquisitionco pursuant to Section 6.1(5) of the Share Provisions,
the retraction request will constitute and will be deemed to constitute notice
from the Beneficiary to the Trustee instructing the Trustee to exercise the
Exchange Right with respect to those Retracted Shares that Acquisitionco is
unable to redeem. In any such event, Acquisitionco hereby agrees with the
Trustee and in favour of the Beneficiary immediately to notify the Trustee of
such prohibition against Acquisitionco redeeming all of the Retracted Shares and
immediately to forward or cause to be forwarded to the Trustee all relevant
materials delivered by the Beneficiary to Acquisitionco or to the Transfer Agent
(including without limitation a copy of the retraction request delivered
pursuant to Section 6.1(1) of the Share Provisions) in connection with such
proposed redemption of the Retracted Shares and the Trustee will thereupon
exercise the Exchange Right with respect to the Retracted Shares that
Acquisitionco is not permitted to redeem and will require Coeur or, at Coeur's
option, Coeur ULC, to purchase such shares in accordance with the provisions of
this Article 5.
5.8 STAMP OR OTHER TRANSFER TAXES
Upon any sale of Exchangeable Shares to Coeur or Coeur ULC
pursuant to the Exchange Right, the share certificate or certificates
representing Coeur Common Stock to be delivered in connection with the payment
of the total purchase price therefor shall be issued in the name of the
Beneficiary of the Exchangeable Shares so sold or in such names as such
Beneficiary may otherwise direct in writing without charge to the holder of the
Exchangeable Shares so sold, provided, however, that such Beneficiary (a) shall
pay (and none of Coeur, Coeur ULC, Acquisitionco or the Trustee shall be
required to pay) any documentary, stamp, transfer or other similar taxes that
may be payable in respect of any transfer involved in the issuance or
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delivery of such shares to a person other than such Beneficiary or (b) shall
have established to the satisfaction of the Trustee, Coeur and Acquisitionco
that such taxes, if any, have been paid.
5.9 NOTICE OF INSOLVENCY EVENT
Immediately upon the occurrence of an Insolvency Event or any
event that with the giving of notice or the passage of time or both would be an
Insolvency Event, Acquisitionco and Coeur shall give written notice thereof to
the Trustee. As soon as practicable after receiving notice from Acquisitionco or
Coeur or from any other person of the occurrence of an Insolvency Event, the
Trustee will mail to each Beneficiary, at the expense of Coeur, a notice of such
Insolvency Event in the form provided by Coeur, which notice shall contain a
brief statement of the right of the Beneficiaries with respect to the Exchange
Right.
5.10 COEUR SUPPORT OF COEUR ULC
Notwithstanding any of the other provisions of this agreement, so
long as any Exchangeable Shares are outstanding Coeur will take all actions and
do all such things as are necessary or desirable to enable and permit Coeur ULC,
in accordance with applicable law, to perform its obligations and exercise its
rights with respect to the satisfaction of the Liquidation Call Right, the
Redemption Call Right and the Retraction Call Right, including without
limitation, all such actions and all such things as are necessary or desirable
to enable and permit Coeur ULC to cause to be delivered Coeur Common Stock to
the holders of Exchangeable Shares in accordance with the Share Provisions. In
furtherance of the foregoing obligations, upon notice of any event which
requires Coeur ULC to cause to be delivered shares of 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 Coeur ULC, which
shall forthwith deliver the requisite shares of Coeur Common Stock to or to the
order of the former holder of the surrendered Exchangeable Shares. All such
shares of Coeur Common Stock shall be duly 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.
5.11 CALL RIGHTS
The Liquidation Call Right, the Redemption Call Right, the
Retraction Call Right, the Automatic Exchange Right and the Exchange Right are
hereby agreed, acknowledged, consented to and confirmed, and it is agreed and
acknowledged that such rights are granted as part of the consideration for the
obligations of Coeur under this agreement.
5.12 AUTOMATIC EXCHANGE RIGHTS
(1) Coeur shall give the Trustee written notice of each of the following
events (each a "COEUR LIQUIDATION EVENT") at the time set forth below:
(a) in the event of any determination by the board of directors of
Coeur to institute voluntary liquidation, dissolution or winding
up proceedings with respect to Coeur or to effect any other
distribution of assets of Coeur among its stockholders 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; and
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(b) immediately, upon the earlier of (i) receipt by Coeur of notice
of and (ii) Coeur otherwise becoming aware of any threatened or
instituted claim, suit, petition or other proceeding with respect
to the involuntary liquidation, dissolution or winding up of
Coeur or to effect any other distribution of assets of Coeur
among its stockholders for the purpose of winding up its affairs.
(2) Immediately following receipt by the Trustee from Coeur of notice of any
Coeur Liquidation Event contemplated by Section 5.12(1)(a) or
5.12(1)(b), the Trustee will give notice thereof to the Beneficiaries.
Such notice shall be provided by Coeur to the Trustee and shall include
a brief description of the automatic exchange of Exchangeable Shares for
shares of Coeur Common Stock provided for in Section 5.12(4) below (the
"AUTOMATIC EXCHANGE RIGHT").
(3) In order that the Beneficiaries will be able to participate on a pro
rata basis with the holders of Coeur Common Stock in the distribution of
assets of Coeur in connection with a Coeur Liquidation Event, on the
fifth Business Day prior to the effective date (the "COEUR LIQUIDATION
EVENT EFFECTIVE DATE") of a Coeur Liquidation Event all of the then
outstanding Exchangeable Shares (other than Exchangeable Shares held by
Coeur or its Subsidiaries) shall be automatically exchanged for shares
of Coeur Common Stock. To effect such automatic exchange, Coeur shall
purchase each Exchangeable Share outstanding on the fifth Business Day
prior to the Coeur Liquidation Event Effective Date and held by a
Beneficiary, and each such Beneficiary shall sell the Exchangeable
Shares held by it at such time, for a purchase price per share equal to
(a) the Current Market Price of a share of Coeur Common Stock on the
fifth Business Day prior to the Coeur Liquidation Event Effective Date,
which shall be satisfied in full by Coeur delivering to such holder one
share of Coeur Common Stock, plus (b) the Dividend Amount, if any.
(4) On the fifth Business Day prior to the Coeur Liquidation Event
Effective Date, the closing of the transaction of purchase and sale
contemplated by the automatic exchange of Exchangeable Shares for Coeur
Common Stock shall be deemed to have occurred, and each Beneficiary
shall be deemed to have transferred to Coeur all of such Beneficiary's
right, title and interest in and to such Exchangeable Shares and shall
cease to be a holder of such Exchangeable Shares and Coeur shall deliver
or cause to be delivered to the Trustee, for delivery to such holders,
the certificates for the number of shares of Coeur Common Stock
deliverable upon the automatic exchange of Exchangeable Shares for Coeur
Common Stock (which shares shall be duly issued as fully paid and
non-assessable and shall be free and clear of any lien, claim or
encumbrance, security interest or adverse claim) and a cheque for the
balance, if any, of the total purchase price for such Exchangeable
Shares and any interest on such deposit shall belong to Coeur.
Concurrently with each such Beneficiary ceasing to be a holder of
Exchangeable Shares, such Beneficiary shall be considered and deemed for
all purposes to be the holder of the shares of Coeur Common Stock
delivered to it, or to the Trustee on its behalf, pursuant to the
automatic exchange of Exchangeable Shares for shares of Coeur Common
Stock and the certificates held by such Beneficiary previously
representing the Exchangeable Shares exchanged by such Beneficiary with
Coeur pursuant to such automatic exchange shall thereafter be deemed to
represent the shares of Coeur Common Stock delivered to such Beneficiary
by Coeur pursuant to such automatic exchange. Upon the request of any
Beneficiary and the surrender by such Beneficiary of Exchangeable Share
certificates
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deemed to represent shares of Coeur Common Stock, duly endorsed in blank
and accompanied by such instruments of transfer as Coeur may reasonably
require, the Trustee shall deliver or cause to be delivered to such
Beneficiary certificates representing the shares of Coeur Common Stock
of which such Beneficiary is the holder and a cheque in payment of the
remaining portion, if any, of the purchase price (less any amount
required to be withheld under the Income Tax Act (Canada) or United
States tax laws, or any provision of any federal, provincial, state ,
local or foreign tax laws).
5.13 COEUR COMMON STOCK
The obligations of Coeur to issue shares of Coeur Common Stock
pursuant to the Automatic Exchange Right or the Exchange Right are subject to
all applicable laws and regulatory or stock exchange requirements.
5.14 WITHHOLDING RIGHTS
Coeur, Acquisitionco and the Trustee shall be entitled to deduct
and withhold from any consideration otherwise payable under this agreement to
any holder of Exchangeable Shares or Coeur Common Stock such amounts as Coeur,
Acquisitionco or the Trustee is required to deduct and withhold with respect to
such payment under the Income Tax Act (Canada) or United States tax laws or any
provision of provincial, state, local or foreign tax law, in each case as
amended or succeeded. The Trustee may act and rely on the advice of counsel with
respect to such matters. To the extent that amounts are so withheld, such
withheld amounts shall be treated for all purposes as having been paid to the
holder of the shares in respect of which such deduction and withholding was
made, provided that such withheld amounts are actually remitted to the
appropriate taxing authority. To the extent that the amount so required to be
deducted or withheld from any payment to a holder exceeds the cash portion of
the consideration otherwise payable to the holder, Coeur, Acquisitionco and the
Trustee are hereby authorized to sell or otherwise dispose of such portion of
the consideration as is necessary to provide sufficient funds to Coeur,
Acquisitionco or the Trustee, as the case may be, to enable it to comply with
such deduction or withholding requirement and Coeur, Acquisitionco or the
Trustee shall notify the holder thereof and remit to such holder any unapplied
balance of the net proceeds of such sale.
ARTICLE 6
RIGHTS OF ENTITLEMENT
6.1 GRANT OF RIGHTS OF ENTITLEMENT
Rights of Entitlement may be granted, at any time or from time to
time to Underlying Holders, which rights of entitlement shall be evidenced by
Certificates of Entitlement.
6.2 TRANSFER AND SURRENDER OF CERTIFICATES OF ENTITLEMENT
Any Certificate of Entitlement shall be annexed to the Primary
Security to which it relates and may only be transferred or surrendered together
with the Primary Security to which it is so annexed.
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ARTICLE 7
CONCERNING THE TRUSTEE
7.1 POWERS AND DUTIES OF THE TRUSTEE
(1) The rights, powers, duties and authorities of the Trustee under this
agreement, in its capacity as trustee of the Trust, shall include:
(a) receipt and deposit of the Special Voting Share from Coeur as
trustee for and on behalf of the Beneficiaries in accordance with
the provisions of this agreement;
(b) granting proxies and distributing materials to Beneficiaries as
provided in this agreement;
(c) voting the Beneficiary Votes in accordance with the provisions of
this agreement;
(d) receiving the grant of the Exchange Right and the Automatic
Exchange Right from Coeur as trustee for and on behalf of the
Beneficiaries in accordance with the provisions of this
agreement;
(e) exercising the Exchange Right in accordance with the provisions
of this agreement, and in connection therewith receiving from
Beneficiaries any requisite documents and distributing to such
Beneficiaries shares of Coeur Common Stock and cheques, if any,
to which such Beneficiaries are entitled pursuant to the exercise
of the Exchange Right;
(f) holding title to the Trust Estate;
(g) investing any moneys forming, from time to time, a part of the
Trust Estate as provided in this agreement;
(h) taking action at the direction of a Beneficiary or Beneficiaries
to enforce the obligations of Coeur and Acquisitionco under this
agreement and under the Share Provisions; and
(i) taking such other actions and doing such other things as are
specifically provided in this agreement.
(2) In the exercise of such rights, powers, duties and authorities the
Trustee shall have (and is granted) such incidental and additional
rights, powers and authority not in conflict with any of the provisions
of this agreement as the Trustee, acting in good faith and in the
reasonable exercise of its discretion, may deem necessary, appropriate
or desirable to effect the purpose of the Trust. Any exercise of duties
or of discretionary rights, powers and authorities by the Trustee shall
be final, conclusive and binding upon all persons. For greater
certainty, the Trustee shall have only those duties as set out
specifically in this agreement.
(3) The Trustee in exercising its rights, powers, duties and authorities
hereunder shall act honestly and in good faith and with a view to the
best interests of the Beneficiaries and
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shall exercise the care, diligence and skill that a reasonably prudent
trustee would exercise in comparable circumstances.
(4) The Trustee shall not be bound to give notice or do or take any act,
action or proceeding by virtue of the powers conferred on it hereby
unless and until it shall be specifically required to do so under the
terms hereof; nor shall the Trustee be required to take any notice of,
or to do or to take any act, action or proceeding as a result of any
default or breach of any provision hereunder, unless and until notified
in writing of such default, which notice shall distinctly specify the
default or breach desired to be brought to the attention of the Trustee,
and in the absence of such notice the Trustee may for all purposes of
this agreement conclusively assume that no default or breach has been
made in the observance or performance of any of the representations,
warranties, covenants, agreements or conditions contained herein.
7.2 NO CONFLICT OF INTEREST
The Trustee represents to Coeur and Acquisitionco that at the
date of execution and delivery of this agreement there exists no material
conflict of interest in the role of the Trustee as a fiduciary hereunder and the
role of the Trustee in any other capacity. The Trustee shall, within 90 days
after it becomes aware that such material conflict of interest exists, either
eliminate such material conflict of interest or resign in the manner and with
the effect specified in Article 10. If, notwithstanding the foregoing provisions
of this Section 7.2, the Trustee has such a material conflict of interest, the
validity and enforceability of this agreement shall not be affected in any
manner whatsoever by reason only of the existence of such material conflict of
interest. If the Trustee contravenes the foregoing provisions of this Section
7.2, any interested party may apply to the Superior Court of Justice (Ontario)
for an order that the Trustee be replaced as trustee hereunder.
7.3 DEALINGS WITH TRANSFER AGENTS, REGISTRARS, ETC.
(1) Each of Coeur and Acquisitionco irrevocably authorizes the Trustee, from
time to time, to:
(a) consult, communicate and otherwise deal with the respective
registrars and transfer agents, and with any such subsequent
registrar or transfer agent, of the Exchangeable Shares and Coeur
Common Stock; and
(b) requisition, from time to time, from any such registrar or
transfer agent any information readily available from the records
maintained by it which the Trustee may reasonably require for the
discharge of its duties and responsibilities under this
agreement.
(2) Coeur covenants that it will supply, and will cause Coeur ULC to supply,
the Trustee or the Transfer Agent, as the case may be, in a timely
manner with duly executed share certificates for the purpose of
completing the exercise from time to time of all rights to acquire Coeur
Common Stock hereunder, under the Share Provisions and under any other
security or commitment given to the Beneficiaries pursuant thereto, in
each case pursuant to the provisions hereof or of the Share Provisions
or otherwise.
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7.4 BOOKS AND RECORDS
The Trustee shall keep available for inspection by Coeur and
Acquisitionco at the Trustee's principal office in Toronto, Ontario correct and
complete books and records of account relating to the Trustee's actions under
this agreement, including, without limitation, all information relating to
mailings and instructions to and from Beneficiaries and all transactions
pursuant to the Voting Rights and the Exchange Right, for the term of this
agreement. On or before February 15, 2005, and on or before February 15 in every
year thereafter, so long as the Special Voting Share is registered in the name
of the Trustee, the Trustee shall transmit to Coeur and Acquisitionco a brief
report, dated as of the preceding December 31st, with respect to:
(a) the property and funds comprising the Trust Estate as of that
date;
(b) the number of exercises of the Exchange Right, if any, and the
aggregate number of Exchangeable Shares received by the Trustee
on behalf of Beneficiaries in consideration of the issuance and
delivery by Coeur or Coeur ULC of shares of Coeur Common Stock in
connection with the Exchange Right, during the calendar year
ended on such December 31st; and
(c) all other actions taken by the Trustee in the performance of its
duties under this agreement which it had not previously reported.
7.5 INCOME TAX RETURNS AND REPORTS
The Trustee shall, to the extent necessary and as advised by
counsel, prepare and file, or cause to be prepared and filed, on behalf of the
Trust appropriate United States and Canadian income tax returns and any other
returns or reports as may be required by applicable law or pursuant to the rules
and regulations of any securities exchange or other trading system through which
the Exchangeable Shares are traded. In connection therewith, the Trustee may
obtain the advice and assistance of such experts or advisors as the Trustee
considers necessary or advisable. Coeur shall retain qualified experts or
advisors for the purpose of providing such tax advice or assistance.
7.6 INDEMNIFICATION PRIOR TO CERTAIN ACTIONS BY TRUSTEE
(1) The Trustee shall exercise any or all of the rights, duties, powers or
authorities vested in it by this agreement at the request, order or
direction of any Beneficiary upon such Beneficiary furnishing to the
Trustee reasonable funding, security and indemnity against the costs,
expenses and liabilities which may be incurred by the Trustee therein or
thereby, provided that no Beneficiary shall be obligated to furnish to
the Trustee any such funding, security or indemnity in connection with
the exercise by the Trustee of any of its rights, duties, powers and
authorities with respect to the Special Voting Share pursuant to Article
4, subject to Section 7.15.
(2) None of the provisions contained in this agreement shall require the
Trustee to expend or risk its own funds or otherwise incur financial
liability in the exercise of any of its rights, powers, duties, or
authorities unless funded, given security and indemnified as aforesaid.
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7.7 ACTION OF BENEFICIARIES
No Beneficiary shall have the right to institute any action, suit
or proceeding or to exercise any other remedy authorized by this agreement for
the purpose of enforcing any of its rights or for the execution of any trust or
power hereunder unless the Beneficiary has requested the Trustee to take or
institute such action, suit or proceeding and furnished the Trustee with the
funding, security and indemnity referred to in Section 7.6 and the Trustee shall
have failed to act within a reasonable time thereafter. In such case, but not
otherwise, the Beneficiary shall be entitled to take proceedings in any court of
competent jurisdiction such as the Trustee might have taken; it being understood
and intended that no one or more Beneficiaries shall have any right in any
manner whatsoever to affect, disturb or prejudice the rights hereby created by
any such action, or to enforce any right hereunder, including, without
limitation, under the Voting Rights or the Exchange Right, except subject to the
conditions and in the manner herein provided, and that all powers and trusts
hereunder shall be exercised and all proceedings at law shall be instituted, had
and maintained by the Trustee, except only as herein provided, and in any event
for the equal benefit of all Beneficiaries.
7.8 RELIANCE BY TRUSTEE UPON DECLARATIONS
The Trustee shall not be considered to be in contravention of any
of its rights, powers, duties and authorities hereunder if, when required, it
acts and relies in good faith upon lists (including any Lists), notices,
statutory declarations, certificates, (including share certificate and officers
certificates), opinions or reports or other papers or documents furnished
pursuant to the provisions hereof or required by the Trustee to be furnished to
it in the exercise of its rights, powers, duties and authorities hereunder if
such lists (including any Lists), notices, statutory declarations, certificates,
opinions or reports comply with the provisions of Section 7.9, if applicable,
and with any other applicable provisions of this agreement.
7.9 EVIDENCE AND AUTHORITY TO TRUSTEE
(1) Coeur and/or Acquisitionco shall furnish to the Trustee evidence of
compliance with the conditions provided for in this agreement relating
to any action or step required or permitted to be taken by Coeur, Coeur
ULC and/or Acquisitionco or the Trustee under this agreement or as a
result of any obligation imposed under this agreement, including,
without limitation, in respect of the Voting Rights or the Exchange
Right and the taking of any other action to be taken by the Trustee at
the request of or on the application of Coeur and/or Acquisitionco
forthwith if and when:
(a) such evidence is required by any other section of this agreement
to be furnished to the Trustee in accordance with the terms of
this Section 7.9; or
(b) the Trustee, in the exercise of its rights, powers, duties and
authorities under this agreement, gives Coeur and/or
Acquisitionco written notice requiring it to furnish such
evidence in relation to any particular action or obligation or
matter specified in such notice.
(2) Such evidence shall consist of an Officer's Certificate of Coeur
and/or Acquisitionco or a statutory declaration or a certificate made by
persons entitled to sign an Officer's
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Certificate stating that any such condition has been complied with in
accordance with the terms of this agreement.
(3) Whenever such evidence relates to a matter other than the Voting Rights
or the Exchange Right, and except as otherwise specifically provided
herein, such evidence may consist of a report or opinion of any
solicitor, attorney, auditor, accountant, appraiser, valuer or other
expert or any other person whose qualifications give authority to a
statement made by such person, provided that if such report or opinion
is furnished by a director, officer or employee of Coeur and/or
Acquisitionco it shall be in the form of an Officer's Certificate or a
statutory declaration.
(4) Each statutory declaration, Officer's Certificate, opinion or report
furnished to the Trustee as evidence of compliance with a condition
provided for in this agreement shall include a statement by the person
giving the evidence:
(a) declaring that such person has read and understands the
provisions of this agreement relating to the condition in
question;
(b) describing the nature and scope of the examination or
investigation upon which such person based the statutory
declaration, certificate, statement or opinion; and
(c) declaring that such person has made such examination or
investigation as such person believes is necessary to enable them
to make the statements or give the opinions contained or
expressed therein.
7.10 EXPERTS, ADVISERS AND AGENTS
The Trustee may:
(a) in relation to these presents act and rely on the opinion or
advice of or information obtained from any solicitor, attorney,
auditor, accountant, appraiser, valuer or other expert, whether
retained by the Trustee or by Coeur and/or Acquisitionco or
otherwise, and may retain or employ such assistants as may be
necessary to the proper determination and discharge of its powers
and duties and determination of its rights or duties hereunder
and may pay proper and reasonable compensation for all such legal
and other advice or assistance as aforesaid;
(b) employ such agents and other assistants as it may reasonably
require for the proper determination and/or discharge of its
powers and duties hereunder; and
(c) pay reasonable remuneration for all services performed for it
(and shall be entitled to receive reasonable remuneration for all
services performed by it) in the discharge of the trusts hereof
and compensation for all reasonable disbursements, costs and
expenses made or incurred by it in the discharge of its duties
hereunder and in the management of the Trust.
7.11 INVESTMENT OF MONEYS HELD BY TRUSTEE
Unless otherwise provided in this agreement, any moneys held by
or on behalf of the Trustee which under the terms of this agreement may or ought
to be invested or which may
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be on deposit with the Trustee or which may be in the hands of the Trustee may
be invested or reinvested in the name or under the control of the Trustee in
securities in which, under the laws of the Province of Ontario, trustees are
authorized to invest trust moneys, provided that such securities are stated to
mature within two years after their purchase by the Trustee and the Trustee
shall so invest such money on the written direction of Acquisitionco. Pending
the investment of any money as herein provided such moneys may be deposited in
the name of the Trustee in any chartered bank in Canada or, with the consent of
Acquisitionco, in the deposit department of the Trustee or any other loan or
trust company authorized to accept deposits under the laws of Canada or any
province thereof at the rate of interest then current on similar deposits.
7.12 TRUSTEE NOT REQUIRED TO GIVE SECURITY
The Trustee shall not be required to give any bond or security in
respect of the execution of the trusts, rights, duties, powers and authorities
of this agreement or otherwise in respect of the premises.
7.13 TRUSTEE NOT BOUND TO ACT ON REQUEST
Except as in this agreement otherwise specifically provided, the
Trustee shall not be bound to act in accordance with any direction or request of
Coeur and/or Acquisitionco or of the respective directors thereof until a duly
authenticated copy of the instrument or resolution containing such direction or
request shall have been delivered to the Trustee, and the Trustee shall be
empowered to act upon any such copy purporting to be authenticated and believed
by the Trustee to be genuine.
7.14 AUTHORITY TO CARRY ON BUSINESS
The Trustee represents to Coeur and Acquisitionco that at the
date of execution and delivery by it of this agreement it is authorized to carry
on the business of a trust company in each of the provinces of Canada but if,
notwithstanding the provisions of this Section 7.14, it ceases to be so
authorized to carry on business, the validity and enforceability of this
agreement and the Voting Rights, the Exchange Right and the other rights granted
in or resulting from the Trustee being a party to this agreement shall not be
affected in any manner whatsoever by reason only of such event but the Trustee
shall, within 90 days after ceasing to be authorized to carry on the business of
a trust company in any province of Canada, either become so authorized or resign
in the manner and with the effect specified in Article 10.
7.15 CONFLICTING CLAIMS
(1) If conflicting claims or demands are made or asserted with respect
to any interest of any Beneficiary in any Exchangeable Shares, including
any disagreement between the heirs, representatives, successors or
assigns succeeding to all or any part of the interest of any Beneficiary
in any Exchangeable Shares, resulting in conflicting claims or demands
being made in connection with such interest, then the Trustee shall be
entitled, in its sole discretion, to refuse to recognize or to comply
with any such claims or demands. In so refusing, the Trustee may elect
not to exercise any Voting Rights, Exchange Right or other rights
subject to such conflicting claims or demands and, in so doing, the
Trustee shall not be or become liable to any person on account of such
election or its failure or
- 23 -
refusal to comply with any such conflicting claims or demands. The Trustee shall
be entitled to continue to refrain from acting and to refuse to act until:
(a) the rights of all adverse claimants with respect to the Voting
Rights, Exchange Right or other rights subject to such
conflicting claims or demands have been adjudicated by a final
judgement of a court of competent jurisdiction; or
(b) all differences with respect to the Voting Rights, Exchange Right
or other rights subject to such conflicting claims or demands
have been conclusively settled by a valid written agreement
binding on all such adverse claimants, and the Trustee shall have
been furnished with an executed copy of such agreement.
(2) If the Trustee elects to recognize any claim or comply with any demand
made by any such adverse claimant, it may in its discretion require such
claimant to furnish such surety bond or other security satisfactory to
the Trustee as it shall deem appropriate to fully indemnify it as
between all conflicting claims or demands.
7.16 ACCEPTANCE OF TRUST
The Trustee hereby accepts the Trust created and provided for, by
and in this agreement and agrees to perform the same upon the terms and
conditions herein set forth and to hold all rights, privileges and benefits
conferred hereby and by law in trust for the various persons who shall from time
to time be Beneficiaries, subject to all the terms and conditions herein set
forth.
ARTICLE 8
COMPENSATION
8.1 FEES AND EXPENSES OF THE TRUSTEE
The Trustee will invoice Coeur for its fees and expenses under
this agreement. Coeur and Acquisitionco jointly and severally agree to pay the
Trustee reasonable compensation for all of the services rendered by it under
this agreement and will reimburse the Trustee for all reasonable expenses
(including, but not limited to, taxes other than taxes based on the net income
or capital of the Trustee, fees paid and disbursements reimbursed to legal
counsel and other experts and advisors and agents and assistants, and travel
expenses) and disbursements, including the cost and expense of any suit or
litigation of any character and any proceedings before any governmental agency,
and including fees and expenses for attendance at any Coeur Meeting, reasonably
incurred by the Trustee in connection with its duties under this agreement;
provided that Coeur and Acquisitionco shall have no obligation to reimburse the
Trustee for any expenses or disbursements paid, incurred or suffered by the
Trustee in any suit or litigation or any such proceedings in which the Trustee
is determined to have acted in bad faith or with fraud, negligence, recklessness
or wilful misconduct.
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ARTICLE 9
INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1 INDEMNIFICATION OF THE TRUSTEE
(1) Coeur and Acquisitionco jointly and severally agree to indemnify and
hold harmless the Trustee and each of its directors, officers, employees
and agents appointed and acting in accordance with this agreement
(collectively, the "INDEMNIFIED PARTIES") against all claims, losses,
damages, reasonable costs, penalties, fines and reasonable expenses
(including reasonable expenses of the Trustee's legal counsel) which,
without fraud, negligence, recklessness, wilful misconduct or bad faith
on the part of such Indemnified Party, may be paid, incurred or suffered
by the Indemnified Party by reason or as a result of the Trustee's
acceptance or administration of the Trust, its compliance with its
duties set forth in this agreement, or any written or oral instruction
delivered to the Trustee by Coeur or Acquisitionco pursuant hereto.
(2) In no case shall Coeur or Acquisitionco be liable under this indemnity
for any claim against any of the Indemnified Parties unless Coeur and
Acquisitionco shall be notified by the Trustee of the written assertion
of a claim or of any action commenced against the Indemnified Parties,
promptly after any of the Indemnified Parties shall have received any
such written assertion of a claim or shall have been served with a
summons or other first legal process giving information as to the nature
and basis of the claim. Subject to (ii) below, Coeur and Acquisitionco
shall be entitled to participate at their own expense in the defence
and, if Coeur and Acquisitionco so elect at any time after receipt of
such notice, either of them may assume the defence of any suit brought
to enforce any such claim. The Trustee shall have the right to employ
separate counsel in any such suit and participate in the defence
thereof, but the fees and expenses of such counsel shall be at the
expense of the Trustee unless: (i) the employment of such counsel has
been authorized by Coeur or Acquisitionco; or (ii) the named parties to
any such suit include both the Trustee and Coeur or Acquisitionco and
the Trustee shall have been advised by counsel acceptable to Coeur or
Acquisitionco that there may be one or more legal defences available to
the Trustee that are different from or in addition to those available to
Coeur or Acquisitionco and that, in the judgement of such counsel, would
present a conflict of interest were a joint representation to be
undertaken (in which case Coeur and Acquisitionco shall not have the
right to assume the defence of such suit on behalf of the Trustee but
shall be liable to pay the reasonable fees and expenses of counsel for
the Trustee). The indemnities contained in this Article 9 shall survive
the termination of the Trust and the resignation or removal of the
Trustee.
9.2 LIMITATION OF LIABILITY
The Trustee shall not be held liable for any loss which may occur
by reason of depreciation of the value of any part of the Trust Estate or any
loss incurred on any investment of funds pursuant to this agreement, except to
the extent that such loss is attributable to the fraud, negligence,
recklessness, wilful misconduct or bad faith on the part of the Trustee.
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ARTICLE 10
CHANGE OF TRUSTEE
10.1 RESIGNATION
The Trustee, or any trustee hereafter appointed, may at any time
resign by giving written notice of such resignation to Coeur and Acquisitionco
specifying the date on which it desires to resign, provided that such notice
shall not be given less than sixty (60) days before such desired resignation
date unless Coeur and Acquisitionco otherwise agree and provided further that
such resignation shall not take effect until the date of the appointment of a
successor trustee and the acceptance of such appointment by the successor
trustee. Upon receiving such notice of resignation, Acquisitionco shall promptly
appoint a successor trustee, which shall be a corporation organized and existing
under the laws of Canada and authorized to carry on the business of a trust
company in all provinces of Canada, by written instrument in duplicate, one copy
of which shall be delivered to the resigning trustee and one copy to the
successor trustee. Failing the appointment and acceptance of a successor
trustee, a successor trustee may be appointed by order of a court of competent
jurisdiction upon application of one or more of the parties to this agreement.
If the retiring trustee is the party initiating an application for the
appointment of a successor trustee by order of a court of competent
jurisdiction, Coeur and Acquisitionco shall be jointly and severally liable to
reimburse the retiring trustee for its legal costs and expenses in connection
with same.
10.2 REMOVAL
The Trustee, or any trustee hereafter appointed, may (provided a
successor trustee is appointed) be removed at any time on not less than 60 days'
prior notice by written instrument executed by Coeur and Acquisitionco, in
duplicate, one copy of which shall be delivered to the trustee so removed and
one copy to the successor trustee, provided that such removal shall not take
effect until the date of acceptance of appointment by the successor trustee.
10.3 SUCCESSOR TRUSTEE
Any successor trustee appointed as provided under this agreement
shall execute, acknowledge and deliver to Coeur and Acquisitionco and to its
predecessor trustee an instrument accepting such appointment. Thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor under this agreement, with the like effect as if originally named as
trustee in this agreement. However, on the written request of Coeur and
Acquisitionco or of the successor trustee, the trustee ceasing to act shall,
upon payment of any amounts then due to it pursuant to the provisions of this
agreement, execute and deliver an instrument transferring to such successor
trustee all the rights and powers of the trustee so ceasing to act. Upon the
request of any such successor trustee, Coeur, Acquisitionco and such predecessor
trustee shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers.
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10.4 NOTICE OF SUCCESSOR TRUSTEE
Upon acceptance of appointment by a successor trustee as provided
herein, Coeur and Acquisitionco shall cause to be mailed notice of the
succession of such trustee hereunder to each Beneficiary specified in a List. If
Coeur or Acquisitionco shall fail to cause such notice to be mailed within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of Coeur and
Acquisitionco.
ARTICLE 11
AMENDMENTS AND SUPPLEMENTAL TRUST AGREEMENTS
11.1 AMENDMENTS, MODIFICATIONS, ETC.
Subject to Section 11.2 thereof, this agreement may not be
amended or modified except by an agreement in writing executed by Coeur,
Acquisitionco and the Trustee and approved by the Beneficiaries in accordance
with Section 9.2 of the Share Provisions.
11.2 MINISTERIAL AMENDMENTS
Notwithstanding the provisions of Section 11.1, the parties to
this agreement may in writing, at any time and from time to time, without the
approval of the Beneficiaries, amend or modify this agreement for the purposes
of:
(a) adding to the covenants of any or all parties hereto for the
protection of the Beneficiaries hereunder provided that the board
of directors of each of Acquisitionco and Coeur shall be of the
good faith opinion (confirmed in writing by each to the Trustee)
that such additions will not be prejudicial to the rights or
interests of the Beneficiaries;
(b) making such amendments or modifications not inconsistent with
this agreement (as confirmed in writing by Acquisitionco which
may be relied upon by the Trustee), as may be necessary or
desirable with respect to matters or questions which, in the good
faith opinion of the board of directors of each of Coeur and
Acquisitionco (confirmed in writing by each to the Trustee) and
in the opinion of the Trustee, in reliance upon a certificate of
Acquisitionco, having in mind the best interests of the
Beneficiaries, it may be expedient to make, provided that such
boards of directors (confirmed in writing by each to the Trustee)
and the Trustee, acting in reliance upon a certificate of
Acquisitionco, shall be of the opinion that such amendments and
modifications will not be prejudicial to the rights or interests
of the Beneficiaries; or
(c) making such changes or corrections which, on the advice of
counsel to Coeur, Acquisitionco and the Trustee, are required for
the purpose of curing or correcting any ambiguity or defect or
inconsistent provision or clerical omission or mistake or
manifest error.
- 27 -
11.3 MEETING TO CONSIDER AMENDMENTS
Acquisitionco, at the request of Coeur, shall call a meeting or
meetings of the Beneficiaries for the purpose of considering any proposed
amendment or modification requiring approval pursuant hereto. Any such meeting
or meetings shall be called and held in accordance with the by-laws of
Acquisitionco, the Share Provisions and all applicable laws.
11.4 CHANGES IN CAPITAL OF COEUR AND ACQUISITIONCO
At all times after the occurrence of any event contemplated
pursuant to Section 2.7 or 2.8 of the Support Agreement or otherwise, as a
result of which either 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 Coeur Common Stock or the
Exchangeable Shares or both are so changed and the parties hereto shall execute
and deliver a supplemental trust agreement giving effect to and evidencing such
necessary amendments and modifications.
11.5 EXECUTION OF SUPPLEMENTAL TRUST AGREEMENTS
Notwithstanding Section 11.1, from time to time Acquisitionco
(when authorized by a resolution of its Board of Directors), Coeur (when
authorized by a resolution of its board of directors) and the Trustee may,
subject to the provisions of these presents, and they shall, when so directed by
these presents, execute and deliver by their proper officers, trust agreements
or other instruments supplemental hereto, which thereafter shall form part
hereof. In executing or accepting the supplemental trusts created by any
supplemental indenture permitted by this Article 11, the Trustee will be
entitled to receive and (subject to Article 7) will be fully protected in
relying upon an Officer's Certificate and opinions of counsel stating that the
execution of such supplemental indenture is authorized or permitted in this
agreement.
ARTICLE 12
TERMINATION
12.1 TERM
The Trust created by this agreement shall continue until the
earliest to occur of the following events:
(a) no outstanding Exchangeable Shares are held by a Beneficiary;
(b) each of Coeur and Acquisitionco elects in writing to terminate
the Trust and such termination is approved by the Beneficiaries
in accordance with Section 9.2 of the Share Provisions; and
(c) 21 years after the death of the last survivor of the descendants
of His Majesty King ▇▇▇▇▇▇ V of Canada and the United Kingdom of
Great Britain and Northern Ireland living on the date of the
creation of the Trust.
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12.2 SURVIVAL OF AGREEMENT
This agreement shall survive any termination of the Trust and
shall continue until there are no Exchangeable Shares outstanding held by a
Beneficiary; provided, however, that the provisions of Article 8 and Article 9
shall survive any termination of this agreement.
ARTICLE 13
GENERAL
13.1 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.
13.2 ENUREMENT
This agreement shall be binding upon and enure to the benefit of
the parties hereto and their respective successors and permitted assigns and,
subject to the terms hereof, to the benefit of the Beneficiaries.
13.3 NOTICES TO PARTIES
Any notice and other communications required or permitted to be given
pursuant to this agreement shall be in writing and shall be deemed sufficiently
given if delivered in person or if sent by facsimile transmission (provided such
transmission is recorded as being transmitted successfully) at or to the address
or facsimile telephone number set forth beneath the name of such party below:
If to Acquisitionco:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇. ▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Secretary
If to Coeur:
400 Coeur d'▇▇▇▇▇ ▇▇▇▇▇ Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
- ▇▇ -
▇▇▇▇▇ ▇'▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
In the case of Acquisitionco and Coeur, with copy to:
Goodmans LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to [_]:
[_]
Attention: [_]
Fax: [_]
or at such other address as the party to which such notice or other
communication is to be given has last notified the party giving the same in the
manner provided in this section. Any notice given shall be deemed to have been
received on the date of such delivery or sending. Provided that if any notice or
other communication to which this section applies is given or delivered by
facsimile transmission and is recorded as having been transmitted successfully
after 5:00 pm (local time of recipient) on a business day or at any time on a
day that is not a business day, such notice or other communication shall be
deemed to have been given or delivered and received on the following business
day.
13.4 NOTICE TO BENEFICIARIES
Any notice, request or other communication to be given to a Beneficiary
shall be in writing and shall be valid and effective if given by mail (postage
pre-paid or by delivery to the address of the holder recorded in the securities
register of Acquisitionco or, in the event of the address of any such holder not
being so recorded, then at the last known address of such holder. Any such
notice, request or other communication, if given by mail, shall be deemed to
have been given and received on the fifth day following the date of mailing and,
if given by delivery, shall be deemed to have been given and received on the
date of delivery. Accidental failure or omission to give any notice, request or
other communication to one or more holders of Exchangeable Shares, or any defect
in such notice, shall not invalidate or otherwise alter or affect any action or
proceeding to be taken pursuant thereto.
- 30 -
13.5 RISK OF PAYMENTS BY POST
Whenever payments are to be made or certificates or documents are
to be sent to any Beneficiary by the Trustee or by Acquisitionco, Coeur or by
such Beneficiary to the Trustee or to Coeur or Acquisitionco, the making of such
payment or sending of such certificate or document sent through the post shall
be at the risk of Acquisitionco, in the case of payments made or documents by
the Trustee or Acquisitionco or Coeur and the Beneficiary, in the case of
payments made or documents by the Beneficiary.
13.6 COUNTERPARTS
This agreement may be executed in counterparts (by facsimile or
otherwise), each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
13.7 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.
13.8 ATTORNMENT
Each of the Trustee, Coeur and Acquisitionco agrees that any
action or proceeding arising out of or relating to this agreement or any of the
transactions contemplated by this agreement may be instituted in the courts of
Ontario, waives any objection which it may have now or hereafter to the venue of
any such action or proceeding, irrevocably submits to the non-exclusive
jurisdiction of the said courts in any such action or proceeding, agrees to be
bound by any judgement of the said courts and not to seek, and hereby waives,
any review of the merits of any such judgement by the courts of any other
jurisdiction, and Coeur hereby appoints Acquisitionco at its registered office
in the Province of Ontario as attorney for service of process.
- 31 -
IN WITNESS WHEREOF the parties hereto have caused this agreement
to be duly executed as of the date first above written.
COEUR D'▇▇▇▇▇ ▇▇▇▇▇ CORPORATION
By:
-------------------------------------
COEUR D'▇▇▇▇▇ ▇▇▇▇▇ HOLDINGS COMPANY
By:
-------------------------------------
Name:
Title:
COEUR D'ALENE CANADIAN ACQUISITION
CORPORATION
By:
-------------------------------------
Name:
Title:
[_] (Trustee)
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
SCHEDULE "A"
FORM OF CERTIFICATE OF ENTITLEMENT
CERTIFICATE OF ENTITLEMENT
This Certificate is one of the duly authorized certificates of the
Corporation designated as its Certificates of Entitlement (the "CERTIFICATES")
issued in accordance with the Voting and Exchange Trust Agreement dated
___________, 2004 between Coeur d'Alene Canadian Acquisition Corporation (the
"CORPORATION"), Coeur d'▇▇▇▇▇ ▇▇▇▇▇ Corporation and the Trustee designated
thereunder concurrently with the issuance of the Primary Securities (as defined
in the Voting and Exchange Trust Agreement). This Certificate and the attached
Primary Securities may be transferred and surrendered only together. The Voting
and Exchange Trust Agreement provides that upon presentation of this Certificate
together with the surrender of the attached Primary Securities, the holder of
this Certificate shall be entitled to become, for all purposes, a "Beneficiary"
under the terms of the Voting and Exchange Trust Agreement to the extent that
the holder becomes the registered holder of any Exchangeable Shares in
connection with the surrender of the attached Primary Securities.
A copy of the Voting and Exchange Trust Agreement is on file at the
registered office of the Corporation in Saint ▇▇▇▇, New Brunswick .
BY WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed.
COEUR D'ALENE CANADIAN ACQUISITION CORPORATION
By: By:
------------------------------- -------------------------------
Chairman SECRETARY