UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
REVETT MINING
COMPANY, INC.
(Name of Issuer)
Common Stock, $0.01 par value per share
(Title of Class of Securities)
761505205
(CUSIP Number)
David C. Sienko
Vice President and General Counsel
Hecla Mining Company
6500 North Mineral Drive, Suite 200
Couer dAlene, Idaho 83815-9408
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
March 26, 2015
(Date of
Event Which Requires Filing of This Statement)
If the filing
person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following
box. ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for
other parties to whom copies are to be sent.
* |
The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page
shall not be deemed to be filed for the purpose of section 18 of the Securities Exchange Act of 1934, as amended (the Exchange Act) or otherwise subject to the liabilities of that section of the Exchange Act but
shall be subject to all other provisions of the Exchange Act (however, see the Notes).
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1. |
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Names of
reporting persons. Hecla Mining Company |
2. |
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Check the appropriate box if a member
of a group (see instructions)
(a) ¨ (b) ¨ |
3. |
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SEC use only
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4. |
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Source of funds (see instructions)
OO, WC |
5. |
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Check if disclosure of legal
proceedings is required pursuant to Items 2(d) or 2(e) ¨ |
6. |
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Citizenship or place of
organization Delaware |
Number of
shares beneficially
owned by each
reporting person
with |
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7. |
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Sole voting power
None |
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8. |
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Shared voting power
6,509,664(1) |
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9. |
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Sole dispositive power
None |
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10. |
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Shared dispositive power
725,000
(2) |
11. |
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Aggregate amount beneficially owned by each reporting person
6,509,664(1) |
12. |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) x |
13. |
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Percent of class represented by amount
in Row (11) 16.58% |
14. |
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Type of reporting person (see
instructions) CO |
(1) |
Of the 6,509,664 shares of common stock of Revett Mining Company, Inc. (Issuer), par value $0.01 per share (the Common Stock), reported above: (i) 725,000 shares are directly owned
by RHL Holdings, Inc. (Buyer), a wholly-owned subsidiary of Hecla Mining Company (Parent); and (ii) 5,784,664 shares are collectively directly owned by Urion Holdings (Malta) Limited, John G. Shanahan, Timothy
R. Lindsey, Kenneth S. Eickerman, Douglas Miller, Monique Hayes, Albert F. Appleton, Larry M. Okada and John B. McCombe (each a Shareholder and collectively, the Shareholders). Parent is the sole shareholder of
Buyer and may be deemed to be the beneficial owner of, and share voting and dispositive power over, the 725,000 shares of Common Stock directly owned by Buyer. Beneficial ownership and voting power of the 5,784,664 shares of Common Stock directly
owned by the Shareholders is being reported solely because Parent may be deemed to have beneficial ownership and voting power with respect to such Common Stock as a result of entering into separate Shareholder Agreements, each dated as of March 26,
2015, with each of the Shareholders (each a Shareholder Agreement and collectively the Shareholder Agreements). Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an
admission by any Reporting Person that it is the beneficial owner of such 5,784,664 shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed.
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(2) |
As disclosed in footnote (1), Parent is the sole shareholder of Buyer and may be deemed to be the beneficial owner of, and share voting and dispositive power over, the 725,000 shares of Common Stock directly owned by
Buyer. |
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1. |
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Names of
reporting persons. RHL Holdings, Inc. |
2. |
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Check the appropriate box if a member
of a group (see instructions)
(a) ¨ (b) ¨ |
3. |
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SEC use only
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4. |
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Source of funds (see instructions)
WC |
5. |
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Check if disclosure of legal
proceedings is required pursuant to Items 2(d) or 2(e) ¨ |
6. |
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Citizenship or place of
organization Delaware |
Number of
shares beneficially
owned by each
reporting person
with |
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7. |
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Sole voting power
None |
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8. |
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Shared voting power
6,509,664(1) |
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9. |
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Sole dispositive power
None |
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10. |
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Shared dispositive power
725,000(2) |
11. |
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Aggregate amount beneficially owned by each reporting person
6,509,664(1) |
12. |
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Check if the aggregate amount in Row
(11) excludes certain shares (see instructions) x |
13. |
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Percent of class represented by amount
in Row (11) 16.58% |
14. |
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Type of reporting person (see
instructions) CO |
(1) |
Of the 6,509,664 shares of common stock of Revett Mining Company, Inc. (Issuer), par value $0.01 per share (the Common Stock), reported above: (i) 725,000 shares are directly owned
by RHL Holdings, Inc. (Buyer), a wholly-owned subsidiary of Hecla Mining Company (Parent); and (ii) 5,784,664 shares are collectively directly owned by Urion Holdings (Malta) Limited, John G. Shanahan, Timothy
R. Lindsey, Kenneth S. Eickerman, Douglas Miller, Monique Hayes, Albert F. Appleton, Larry M. Okada and John B. McCombe (each a Shareholder and collectively, the Shareholders). Parent is the sole shareholder of
Buyer and may be deemed to be the beneficial owner of, and share voting and dispositive power over, the 725,000 shares of Common Stock directly owned by Buyer. Beneficial ownership and voting power of the 5,784,664 shares of Common Stock directly
owned by the Shareholders is being reported solely because Parent may be deemed to have beneficial ownership and voting power with respect to such Common Stock as a result of entering into separate Shareholder Agreements, each dated as of March 26,
2015, with each of the Shareholders (each a Shareholder Agreement and collectively the Shareholder Agreements). Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an
admission by any Reporting Person that it is the beneficial owner of such 5,784,664 shares of Common Stock for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership thereof is expressly disclaimed.
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(2) |
As disclosed in footnote (1), Parent is the sole shareholder of Buyer and may be deemed to be the beneficial owner of, and share voting and dispositive power over, the 725,000 shares of Common Stock directly owned by
Buyer. |
Item 1. |
Security and Issuer |
The class of equity securities to which this statement relates is
the common stock, $0.01 par value per share (the Common Stock), of Revett Mining Company, Inc., a Delaware corporation (Issuer). The principal executive offices of Issuer are located at 11115 E Montgomery Dr.,
Suite G, Spokane Valley, Washington 99206.
Item 2. |
Identity and Background |
This statement is being filed jointly, pursuant to a joint
filing agreement included as Exhibit 1 hereto, by:
(i) Hecla Mining Company, a Delaware corporation
(Parent). The principal office of Parent is 6500 North Mineral Drive, Suite 200, Couer dAlene, Idaho 83815-9408.
(ii) RHL Holdings, Inc., a Delaware corporation (Buyer and together with Parent, the Reporting
Persons). The principal office of Buyer is 6500 North Mineral Drive, Suite 200, Couer dAlene, Idaho 83815-9408.
The name, business address, present principal occupation or employment and certain other information relating to each of the
directors and executive officers of the Reporting Persons is set forth on Schedule A hereto, and is incorporated by reference.
During the last five years, none of the Reporting Persons or, to the best of the Reporting Persons knowledge, any of the
persons listed on Schedule A attached hereto have (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, U.S. federal or state securities laws or finding any
violation with respect to such laws.
Item 3. |
Source and Amount of Funds or Other Consideration |
The Shareholder
Agreements described in Item 4 of this Schedule 13D (the terms of which are hereby incorporated by reference) were entered into between Parent and each of Urion Holdings (Malta) Limited, John G. Shanahan, Timothy R. Lindsey, Kenneth S.
Eickerman, Douglas Miller, Monique Hayes, Albert F. Appleton, Larry M. Okada and John B. McCombe (each a Shareholder and collectively, the Shareholders). The Shareholders entered into the Shareholder Agreements
as an inducement to Buyer and Parent to enter into the Merger Agreement described in Item 4 (the terms of which are hereby incorporated by reference). Neither Buyer nor Parent paid additional consideration to the Shareholders in connection with
the execution and delivery of the Shareholder Agreements and thus no funds were used for such purpose.
All of the 725,000 shares of the Common Stock reported under Item 5 as
directly owned by Buyer were acquired using cash from working capital. Total consideration paid for the shares equaled approximately $3,200,000.
All of the 72,917 shares of Common Stock reported under Item 5 as directly owned by Phillips S. Baker, Jr., the President
and Chief Executive Officer of Parent, were acquired using personal funds of Mr. Baker. Total consideration paid for his shares equaled $28,125.
Item 4. |
Purpose of Transaction |
Agreement and Plan of Merger
On March 26, 2015, Parent and its wholly-owned subsidiary, Buyer, entered into an Agreement and Plan of Merger (the
Merger Agreement) with Issuer. Under the terms of the Merger Agreement, Parent will acquire Issuer pursuant to a reverse triangular merger (the Merger) of Buyer with and into Issuer with Issuer surviving the
Merger as a wholly-owned subsidiary of Parent (the Surviving Corporation). In the Merger, each outstanding share of Common Stock (excluding shares of Common Stock held by Parent, Buyer or any of their subsidiaries, shares in the
treasury of Issuer and shares held by any subsidiary of Issuer) will be exchanged for 0.1622 shares of Parents common stock, par value $0.25 per share. No fractional shares of Parent will be issued in the Merger and holders of outstanding
shares of Common Stock who otherwise would be entitled to receive a fractional share of Parent common stock will receive cash in lieu of such fractional shares based on the merger consideration closing value pursuant to the Merger Agreement.
The 725,000 shares of Common Stock directly owned by Buyer were initially acquired by Buyer for investment purposes. As
disclosed above, such shares of Common Stock directly owned by Buyer will be canceled and retired and will cease to exist at the effective time of the Merger. All of the 72,917 shares of Common Stock reported under Item 5 as directly owned by
Mr. Baker were initially acquired by Mr. Baker for investment purposes. Each share of Common Stock directly owned by Mr. Baker will be treated in the same manner as the other outstanding shares of Common Stock pursuant to the Merger
Agreement as described above and will be converted into the right to receive 0.1622 shares of common stock of Parent and cash in lieu of any fractional shares of common stock of Parent Mr. Baker is otherwise entitled to receive at the effective
time of the Merger.
Pursuant to the terms of the Merger Agreement, at the effective time of the Merger, the directors and
officers of Buyer immediately prior to the effective time of the Merger will be the directors and officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation.
In addition, pursuant to the terms of the Merger Agreement, at
the effective time of the Merger, a revised Certificate of Incorporation of Issuer (in the form set forth as an exhibit to the Merger Agreement) will be the certificate of incorporation of the
Surviving Corporation and the bylaws of Buyer in effect immediately prior to the effective time of the Merger will be the bylaws of the Surviving Corporation. If the Merger is completed, the shares of Common Stock will be delisted from the New York
Stock Exchange/Market Division and the Toronto Stock Exchange and will be deregistered under the Securities Exchange Act of 1934, as amended (the Exchange Act).
The Merger Agreement has been approved by the Board of Directors of each of Issuer, Buyer and Parent. The Merger is currently
expected to close in the second quarter of 2015 and is subject to customary closing conditions, including, among others, the affirmative vote of holders of a majority of the outstanding shares of Common Stock approving the principal terms of the
Merger Agreement and the Merger, the accuracy of the representations and warranties therein of the parties thereto (generally subject to a material adverse effect standard) and material compliance by the parties thereto with their obligations under
the Merger Agreement, including, among others, covenants, subject to certain exceptions, of Issuer to not solicit any takeover proposals or change or withdraw its recommendation to stockholders of Issuer to approve the Merger and the Merger
Agreement.
The description contained in this Item 4 of certain principal terms of, and the transactions contemplated
by, the Merger Agreement is qualified in its entirety by reference to the full text of the Merger Agreement, the terms of which are incorporated herein by reference to Exhibit 2 hereto.
Shareholder Agreements
In order to induce Buyer and Parent to enter into the Merger Agreement, each of the Shareholders entered into a Shareholder
Agreement with Parent dated as of March 26, 2015 (each a Shareholder Agreement and collectively the Shareholders Agreement). The Shareholders collectively directly own 5,784,664 shares of Common Stock.
Pursuant to each Shareholder Agreement, the Shareholder party thereto agreed to vote such Shareholders shares of Common Stock beneficially owned by such Stockholder, and to cause any holder of record of shares of Common Stock beneficially
owned by such Stockholder to vote: (i) in favor of the Merger and the Merger Agreement, at every meeting of the shareholders of Issuer at which such matters are considered and at every adjournment or postponement thereof; (ii) against
(1) any Takeover Proposal (as defined in the Merger Agreement), (2) any action, proposal, transaction or agreement which could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation
or agreement of Issuer under the Merger Agreement or of the Shareholder under the Shareholder Agreement and (3) any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, discourage,
adversely affect or inhibit the timely consummation of the Merger or the fulfillment of Issuers, Parents or Buyers conditions under the Merger Agreement or change in any manner
the voting rights of any class of shares of the Issuer (including any amendments to the Charter Documents (as defined in the Merger Agreement) of Issuer). Each of the Shareholders agreed to grant
an irrevocable proxy appointing Parent as the Shareholders proxy and attorney-in-fact (with full power of substitution) to vote such Shareholders shares at any meeting of the shareholders of Issuer
called with respect to any of the matters specified in the Shareholder Agreements, and in accordance and consistent with the above.
The description contained in this Item 4 of certain principal terms of, and the transactions contemplated by, the
Shareholder Agreements is qualified in its entirety by reference to the full text of the Shareholder Agreements, the terms of each of which are incorporated herein by reference to Exhibit 3 through Exhibit 11, hereto.
Except as set forth in this Schedule 13D, the Merger Agreement and the Shareholder Agreements, none of the Reporting Persons
have any plans or proposals which relate to or which would result in or relate to any of the actions specified in subparagraphs (a) through (j) of Item 4 of Schedule 13D of the Exchange Act.
Item 5. |
Interest in Securities of the Issuer |
(a)-(b) By virtue of the
Shareholder Agreements, Parent and Buyer may be deemed to share the power to vote, and may be deemed to be the beneficial owners of, 5,784,664 shares of Common Stock, representing approximately 14.73% of the outstanding shares of Common Stock (based
upon a total number of 39,273,989 shares outstanding, as represented and warranted by Issuer in the Merger Agreement). The Reporting Persons, however, hereby disclaim beneficial ownership of such shares and this statement shall not be construed as
an admission that the Reporting Persons are, for any or all purposes, the beneficial owner of the securities covered by this statement.
Buyer directly owns 725,000 shares of Common Stock, representing approximately 1.85% of the outstanding shares of Common Stock
(based upon a total number of 39,273,989 shares outstanding, as represented and warranted by Issuer in the Merger Agreement). Parent is the sole stockholder of Buyer and ultimately in control of Buyer and may be deemed to beneficially own, and to
share the power to vote and dispose, such shares of Common Stock directly owned by Buyer. Mr. Baker directly owns 72,917 shares of Common Stock, representing less than 1% of the outstanding shares of Common Stock (based upon a total number of
39,273,989 shares outstanding, as represented and warranted by Issuer in the Merger Agreement). The Reporting Persons hereby disclaim beneficial ownership of such 72,917 shares directly owned by Mr. Baker.
(c) Except as described in this Schedule 13D, no Reporting Person and, to the best of the Reporting Persons knowledge, no
person listed on Schedule A hereto has beneficial ownership of, or has engaged in any transaction during the past 60 days involving, any shares of Common Stock.
(d) No Reporting Person and, to the best of the Reporting Persons
knowledge, no person listed on Schedule A hereto has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the 5,784,664 shares of Common Stock directly owned by the Shareholders and that
may be deemed to be beneficially owned by the Reporting Persons. Buyer has the right to receive and the power to direct the receipt of dividends from, or the proceeds from the sale of, the 725,000 shares of Common Stock that it directly owns.
Mr. Baker has the right to receive and the power to direct the receipt of dividends from, or the proceeds from the sale of, the 72,917 shares of Common Stock that he directly owns.
(e) Not applicable.
Item 6. |
Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer |
The information set forth under Items 3, 4 and 5 and the agreements filed as Exhibits 2 through 11 hereto are
incorporated herein by reference. Other than the Merger Agreement and the Shareholder Agreements described in Item 4, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between the Reporting Persons and
any person with respect to the securities of Issuer, including, but not limited to, transfer or voting of any of the securities, finders fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of
profits or loss, or the giving or withholding of proxies.
Item 7. |
Material to Be Filed as Exhibits |
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Exhibit 1: |
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Joint Filing Agreement |
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Exhibit 2: |
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Agreement and Plan of Merger, dated as of March 26, 2015, by and among Issuer, Parent, and Buyer |
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Exhibit 3: |
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Shareholder Agreement, dated as of March 26, 2015, between Urion Holdings (Malta) Limited and Parent |
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Exhibit 4: |
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Shareholder Agreement, dated as of March 26, 2015, between John G. Shanahan and Parent |
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Exhibit 5: |
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Shareholder Agreement, dated as of March 26, 2015, between Timothy R. Lindsey and Parent |
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Exhibit 6: |
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Shareholder Agreement, dated as of March 26, 2015, between, Kenneth S. Eickerman and Parent |
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Exhibit 7: |
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Shareholder Agreement, dated as of March 26, 2015, between Douglas Miller and Parent |
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Exhibit 8: |
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Shareholder Agreement, dated as of March 26, 2015, between Larry M. Okada and Parent |
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Exhibit 9: |
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Shareholder Agreement, dated as of March 26, 2015, between Albert F. Appleton and Parent |
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Exhibit 10: |
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Shareholder Agreement, dated as of March 26, 2015, between Monique Hayes and Parent |
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Exhibit 11: |
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Shareholder Agreement, dated as of March 26, 2015, between John B. McCombe and Parent |
Signature
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true,
complete and correct.
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HECLA MINING COMPANY |
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/s/ David C. Sienko |
Name: |
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David C. Sienko |
Title: |
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Vice President & General Counsel |
Dated: |
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April 3, 2015 |
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RHL HOLDINGS, INC. |
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/s/ David A. Nelson |
Name: |
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David A. Nelson |
Title: |
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Vice President |
Dated: |
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April 3, 2015 |
Schedule A
EXECUTIVE OFFICERS AND DIRECTORS OF HECLA MINING COMPANY
The name, business address, title and present principal occupation or employment of each of the directors and executive officers of Hecla
Mining Company are set forth below. If no address is given, the business address is 6500 North Mineral Drive, Suite 200, Couer dAlene, Idaho 83815-9408. Unless otherwise indicated, each occupation set forth opposite an individuals name
refers to Hecla Mining Company. All of the persons listed below are U.S. citizens.
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Name, Title and Address |
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Principal Occupation |
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Name and Address of
Organization in which Principal
Occupation is Conducted |
Phillips S. Baker, Jr., President and CEO, Director |
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President and CEO, Director |
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Hecla Mining Company |
James A. Sabala, Senior Vice President and Chief Financial Officer |
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Senior Vice President and Chief Financial Officer |
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Hecla Mining Company |
Lawrence P. Radford, Senior Vice President Operations |
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Senior Vice President Operations |
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Hecla Mining Company |
Dr. Dean W.A. McDonald, Senior Vice President Exploration |
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Senior Vice President Exploration |
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Hecla Mining Company |
Don Poirier, Vice President Corporate Development |
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Vice President Corporate Development |
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Hecla Mining Company |
David C. Sienko, Vice President and General Counsel |
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Vice President and General Counsel |
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Hecla Mining Company |
John H. Bowles, Director |
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Ted Crumley, Director and Chairman of the Board |
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George R. Nethercutt, Jr., Director |
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Terry V. Rogers, Director |
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Charles B. Stanley, Director |
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Executive Vice President and Director of QEP Resources, Inc. |
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QEP Resources, Inc. |
Dr. Anthony P. Taylor, Director |
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President, CEO and Director of Selex Resources Ltd. |
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Selex Resources Ltd. |
EXECUTIVE OFFICERS AND DIRECTORS OF RHL HOLDINGS, INC.
The name, business address, title and present principal occupation or employment of each of the directors and executive officers of RHL
Holdings, Inc. are set forth below. If no address is given, the business address is 6500 North Mineral Drive, Suite 200, Couer dAlene, Idaho 83815-9408. Unless otherwise indicated, each occupation set forth opposite an individuals name
refers to Hecla Mining Company. All of the persons listed below are U.S. citizens.
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Name, Title and Address |
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Principal Occupation |
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Name and Address of
Organization in which Principal
Occupation is Conducted |
Don Poirier, President and Director |
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Vice President Corporate Development |
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Hecla Mining Company |
Daniel A. Nelson, Vice President and Director |
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Controller |
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Hecla Mining Company |
Carolyn S. Turner, Treasurer |
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Treasurer |
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Hecla Mining Company |
Tami D. Whitman, Secretary |
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Assistant Corporate Secretary |
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Hecla Mining Company |
Michael L. Clary, Assistant Secretary |
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Senior Counsel |
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Hecla Limited |
Dr. Dean W.A. McDonald, Director |
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Vice President Exploration |
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Hecla Mining Company |
Exhibit Index
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Exhibit 1 |
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Joint Filing Agreement |
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Exhibit 2 |
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Agreement and Plan of Merger, dated as of March 26, 2015, by and among Issuer, Parent, and Buyer |
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Exhibit 3 |
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Shareholder Agreement, dated as of March 26, 2015, between Urion Holdings (Malta) Limited and Parent. |
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Exhibit 4 |
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Shareholder Agreement, dated as of March 26, 2015, between John G. Shanahan and Parent. |
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Exhibit 5 |
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Shareholder Agreement, dated as of March 26, 2015, between Timothy R. Lindsey and Parent. |
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Exhibit 6 |
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Shareholder Agreement, dated as of March 26, 2015, between Kenneth S. Eickerman and Parent. |
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Exhibit 7 |
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Shareholder Agreement, dated as of March 26, 2015, between Douglas Miller and Parent. |
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Exhibit 8 |
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Shareholder Agreement, dated as of March 26, 2015, between Monique Hayes and Parent. |
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Exhibit 9 |
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Shareholder Agreement, dated as of March 26, 2015, between Albert F. Appleton and Parent |
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Exhibit 10 |
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Shareholder Agreement, dated as of March 26, 2015, between Larry M. Okada and Parent |
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Exhibit 11 |
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Shareholder Agreement, dated as of March 26, 2015, between John B. McCombe and Parent |
EXHIBIT 1
JOINT FILING AGREEMENT
The
undersigned hereby agree to the joint filing of the Schedule 13D to which this Agreement is attached.
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HECLA MINING COMPANY |
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/s/ David C. Sienko |
Name: |
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David C. Sienko |
Title: |
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Vice President & General Counsel |
Dated: |
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April 3, 2015 |
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RHL HOLDINGS, INC. |
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/s/ David A. Nelson |
Name: |
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David A. Nelson |
Title: |
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Vice President |
Dated: |
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April 3, 2015 |
Exhibit 2
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
REVETT MINING
COMPANY, INC.
HECLA MINING COMPANY,
and
RHL HOLDINGS, INC.
Dated as of
March 26, 2015
TABLE OF CONTENTS
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Page |
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Article 1 Defined Terms and Interpretation |
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1 |
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Section 1.1 |
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Definitions |
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2 |
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Section 1.2 |
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Interpretation |
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10 |
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Article 2 The Merger |
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10 |
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Section 2.1 |
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The Merger |
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10 |
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Section 2.2 |
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Closing |
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10 |
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Section 2.3 |
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Effective Time |
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10 |
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Section 2.4 |
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Effect of the Merger |
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11 |
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Section 2.5 |
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Certificate of Incorporation; Bylaws |
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11 |
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Section 2.6 |
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Directors and Officers |
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11 |
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Article 3 Conversion of Securities; Exchange of Certificates |
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11 |
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Section 3.1 |
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Conversion of Securities |
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11 |
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Section 3.2 |
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Treatment of Stock Options and Warrants |
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12 |
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Section 3.3 |
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Exchange of Certificates |
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13 |
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Section 3.4 |
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No Fractional Shares |
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15 |
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Section 3.5 |
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Stock Transfer Books |
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15 |
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Article 4 Representations and Warranties of the Company |
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15 |
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Section 4.1 |
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Organization and Qualification; Standing and Power; Charter Documents; Minutes; Subsidiaries |
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Section 4.2 |
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Capital Structure |
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16 |
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Section 4.3 |
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Authority |
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18 |
|
|
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Section 4.4 |
|
No Conflict; Required Filings and Consents |
|
|
19 |
|
|
|
Section 4.5 |
|
Compliance with Laws; Permits |
|
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19 |
|
|
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Section 4.6 |
|
Securities Filings; Financial Statements |
|
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20 |
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Section 4.7 |
|
Affiliate Transactions |
|
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22 |
|
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|
Section 4.8 |
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Absence of Certain Changes |
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22 |
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Section 4.9 |
|
Employees and Benefits |
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22 |
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Section 4.10 |
|
Material Contracts |
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26 |
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Section 4.11 |
|
Litigation |
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27 |
|
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Section 4.12 |
|
Environmental Matters |
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27 |
|
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Section 4.13 |
|
Intellectual Property |
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28 |
|
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Section 4.14 |
|
Taxes |
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28 |
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Section 4.15 |
|
Real Estate and Personal Property |
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30 |
|
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Section 4.16 |
|
Mineral Properties and Mineral Rights |
|
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31 |
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Section 4.17 |
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Proxy Statement; S-4 |
|
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33 |
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Section 4.18 |
|
Brokers |
|
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33 |
|
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|
Section 4.19 |
|
Takeover Statutes |
|
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33 |
|
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Section 4.20 |
|
Fairness Opinion |
|
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34 |
|
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Section 4.21 |
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Access to Information; Disclaimer |
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34 |
|
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Section 4.22 |
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Insurance |
|
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34 |
|
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Section 4.23 |
|
Representations |
|
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35 |
|
Article 5 Representations and Warranties of Parent and Merger Sub |
|
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35 |
|
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Section 5.1 |
|
Organization and Qualification; Charter Documents |
|
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35 |
|
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Section 5.2 |
|
Capitalization |
|
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35 |
|
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Section 5.3 |
|
Authority |
|
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36 |
|
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Section 5.4 |
|
No Conflict; Required Filings and Consents |
|
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36 |
|
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Section 5.5 |
|
Orders |
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37 |
|
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Section 5.6 |
|
Ownership of Merger Sub |
|
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37 |
|
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|
Section 5.7 |
|
Vote Required |
|
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37 |
|
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Section 5.8 |
|
Brokers |
|
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37 |
|
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|
Section 5.9 |
|
Proxy Statement |
|
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37 |
|
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|
Section 5.10 |
|
Securities Filings; Financial Statements |
|
|
37 |
|
Article 6 Covenants |
|
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38 |
|
|
|
Section 6.1 |
|
Conduct of Business Pending the Closing |
|
|
38 |
|
|
|
Section 6.2 |
|
Proxy Statement and S-4 Registration Statement; Company Shareholders Meeting |
|
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41 |
|
|
|
Section 6.3 |
|
Access to Information; Confidentiality |
|
|
42 |
|
|
|
Section 6.4 |
|
No Solicitation of Transactions |
|
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43 |
|
|
|
Section 6.5 |
|
Reasonable Best Efforts |
|
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45 |
|
|
|
Section 6.6 |
|
Certain Notices |
|
|
47 |
|
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Section 6.7 |
|
Public Announcements |
|
|
47 |
|
|
|
Section 6.8 |
|
NYSE Listing |
|
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48 |
|
|
|
Section 6.9 |
|
Indemnification of Directors and Officers |
|
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48 |
|
|
|
Section 6.10 |
|
State Takeover Statutes |
|
|
49 |
|
Article 7 Closing Conditions |
|
|
50 |
|
|
|
Section 7.1 |
|
Conditions to Obligations of Each Party Under This Agreement |
|
|
50 |
|
|
|
Section 7.2 |
|
Additional Conditions to Obligations of Parent and Merger Sub |
|
|
50 |
|
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|
Section 7.3 |
|
Additional Conditions to Obligations of the Company |
|
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51 |
|
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Section 7.4 |
|
Frustration of Closing Conditions |
|
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52 |
|
Article 8 Termination, Amendment and Waiver |
|
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52 |
|
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|
Section 8.1 |
|
Termination |
|
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52 |
|
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|
Section 8.2 |
|
Notice of Termination; Effect of Termination |
|
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54 |
|
|
|
Section 8.3 |
|
Fees and Expenses |
|
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54 |
|
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|
Section 8.4 |
|
Termination Fee and Expenses |
|
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55 |
|
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Section 8.5 |
|
Extension; Waiver |
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56 |
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Section 8.6 |
|
Amendment |
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56 |
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Section 8.7 |
|
Acknowledgment |
|
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56 |
|
Article 9 General Provisions |
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57 |
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Section 9.1 |
|
Non-Survival of Representations and Warranties |
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57 |
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Section 9.2 |
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Notices |
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57 |
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Section 9.3 |
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Headings |
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58 |
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Section 9.4 |
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Disclosure Schedules |
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58 |
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Section 9.5 |
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Severability |
|
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58 |
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Section 9.6 |
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Entire Agreement; Parties in Interest |
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59 |
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Section 9.7 |
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Assignment |
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59 |
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Section 9.8 |
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Mutual Drafting |
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59 |
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Section 9.9 |
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Governing Law; Consent to Jurisdiction; Remedies; Enforcement; Waiver of Trial by Jury |
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59 |
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Section 9.10 |
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Counterparts |
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60 |
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Section 9.11 |
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No Third Party Beneficiaries |
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61 |
|
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (the Agreement), is entered into as of March 26, 2015, by and among Revett Mining
Company, Inc., a Delaware corporation (the Company), Hecla Mining Company, a Delaware corporation (Parent), and RHL Holdings, Inc., a Delaware corporation and a wholly-owned Subsidiary (as defined below) of
Parent (Merger Sub). Each of Parent, Merger Sub and the Company are referred to herein as a Party and together as Parties.
RECITALS
WHEREAS,
the Board of Directors of the Company (the Company Board) has determined that it is in the best interests of the Company and its shareholders, and has declared it advisable, to enter into this Agreement with Parent and Merger Sub
providing for the merger (the Merger) of Merger Sub with and into the Company in accordance with the General Corporation Law of the State of Delaware (DGCL), and the Company Board has approved this Agreement,
upon the terms and subject to the conditions set forth herein, and has, upon such terms and subject to such conditions, recommended that the shareholders of the Company vote in favor of the approval of the principal terms of this Agreement and the
Merger;
WHEREAS, the Board of Directors of Merger Sub has unanimously approved and declared advisable this Agreement;
WHEREAS, Parent, on its own behalf and as the sole shareholder of Merger Sub, has adopted this Agreement and approved the Merger and the other
transactions contemplated hereby;
WHEREAS, concurrently with the execution of this Agreement, and as a condition and inducement to
Parents willingness to enter into this Agreement, certain shareholders of the Company are entering into a Shareholders Agreement with Parent substantially in the form of Exhibit A attached hereto (the Shareholders
Agreement); and
WHEREAS, Parent, Merger Sub and the Company wish to make certain representations, warranties, covenants and
agreements in connection with the Merger and also to prescribe certain conditions to the Merger, as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set
forth in this Agreement and intending to be legally bound hereby, the Parties agree as follows:
Article 1
Defined Terms and Interpretation
Section 1.1 Definitions. For purposes of this Agreement, the term:
Affiliate shall mean, as to any Person, any other Person that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such Person. For purposes of this definition, control (including the terms controlled by and under common control with), when used with respect to a
specific Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by Contract or otherwise.
Agreement shall have the meaning set form in the Preamble.
Book-Entry Shares shall have the meaning set forth in Section 3.3.2.
Business Day shall mean any day that is not a Saturday, Sunday, or a legal holiday under the Laws of the State of Idaho or
the State of Delaware.
Canadian Securities Laws shall mean, as applicable, the securities legislation and securities
laws of each of the Provinces and Territories of Canada and the regulations and rules made thereunder and all published policy statements, blanket orders, notices, directions and rulings issued or adopted by the applicable securities commissions and
other securities regulatory authorities in each of such Provinces and Territories, as now in effect and as they may be promulgated or amended from time to time.
Capitalization Date shall have the meaning set forth in Section 4.2.1.
Certificate of Merger shall have the meaning set forth in Section 2.3.
Certificates shall have the meaning set forth in Section 3.3.2.
Charter Documents shall mean the certificate of incorporation (including any certificate of designations), bylaws or like
organizational documents, each as amended to date.
Closing Date shall have the meaning set forth in
Section 2.2.
Closing shall have the meaning set forth in Section 2.2.
COBRA shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and as codified in
Section 4980B of the Code and Section 601 et. seq. of ERISA.
Code shall mean the United States Internal
Revenue Code of 1986, as amended.
Company Acquisition Agreement shall have the meaning set forth in
Section 6.4.1.
Company Adverse Recommendation Change shall have the meaning set forth in
Section 6.4.1.
Company Balance Sheet Date shall mean December 31, 2013.
Company Board shall have the meaning set forth in the Recitals.
2
Company Contract shall have the meaning set forth in
Section 4.10.1.
Company Disclosure Schedule shall have the meaning set forth in Article 4.
Company Employee Plans shall have the meaning set forth in Section 4.9.1.
Company Employee shall have the meaning set forth in Section 4.9.1.
Company Expenses shall have the meaning set forth in Section 8.4.3.
Company Financial Statements shall have the meaning set forth in Section 4.6.2.
Company IP Agreements shall mean all licenses, sublicenses, consent to use agreements, covenants not to sue and
permissions and other Contracts, including the right to receive royalties or any other consideration, whether written or oral, relating to Intellectual Property and to which the Company or any of its Subsidiaries is a party or under which the
Company or any of its Subsidiaries is a licensor or licensee.
Company Leased Premises shall have the meaning set forth
in Section 4.15.1.
Company Material Adverse Effect shall mean any event, occurrence, fact, condition or
change that is, or would reasonably be expected to become, individually or in the aggregate, materially adverse to (i) the business, results of operations, prospects, condition (financial or otherwise), or assets of the Company and its
Subsidiaries, taken as a whole, or (ii) the ability of the Company to consummate the transactions contemplated hereby on a timely basis; provided, however, that, for the purposes of clause (i), a Company Material Adverse Effect shall not
be deemed to include events, occurrences, facts, conditions or changes arising out of, relating to or resulting from: (a) changes generally affecting the economy, financial or securities markets; (b) the announcement of the transactions
contemplated by this Agreement; (c) any outbreak or escalation of war or any act of terrorism; or (d) general conditions in the industry in which the Company and its Subsidiaries operate; provided further, however, that any
event, change and effect referred to in clauses (a), (c) or (d) immediately above shall be taken into account in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur to the extent that
such event, change or effect has a disproportionate effect on the Company and its Subsidiaries, taken as a whole, compared to other participants in the industries in which the Company and its Subsidiaries conduct their businesses.
Company Owned Properties shall have the meaning set forth in Section 4.15.1.
Company Permits shall mean all licenses, clearances, authorizations and approvals from Governmental Entities owned or held
by the Company and its Subsidiaries required to conduct their businesses or to use and occupy each Company Property for the business currently being conducted thereon.
Company Properties shall have the meaning set forth in Section 4.15.1.
Company Recommendation shall have the meaning set forth in Section 4.3.2.
3
Company Representatives shall have the meaning set forth in
Section 6.3.1.
Company Securities shall have the meaning set forth in Section 4.2.2(ii).
Company Securities Filings shall have the meaning set forth in Section 4.6.1.
Company Shareholders Meeting shall have the meaning set forth in Section 6.2.2.
Company Stock shall have the meaning set forth in Section 3.1.1.
Company Stock Option shall have the meaning set forth in Section 3.2.1.
Company Stock Plan shall mean the Revett Minerals Inc. Amended and Restated Equity Incentive Plan dated June 21, 2011.
Company shall have the meaning set forth in the Preamble.
Confidentiality Agreement shall have the meaning set forth in Section 6.3.2.
Contract shall mean any contracts, agreements, licenses, notes, bonds, mortgages, indentures, leases or other binding
instruments or binding commitments, whether written or oral.
DGCL shall have the meaning set forth in the Recitals.
Effective Time shall have the meaning set forth in Section 2.3.
Enforceability Limitations shall have the meaning set forth in Section 4.3.1.
Environmental Laws shall have the meaning set forth in Section 4.12.
Equity Interest shall mean any share, capital stock, partnership or membership unit or similar interest in any entity and
any option, warrant, right, or security convertible, exchangeable or exercisable therefor.
ERISA shall mean the
Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate shall mean, with respect to any Person,
any other Person that, together with such first Person, would be treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code.
Exchange Act shall mean the United States Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
Exchange Agent shall have the meaning set forth in Section 3.3.1.
Exchange Ratio shall have the meaning set forth in Section 3.1.1.
GAAP shall mean United States generally accepted accounting principles.
4
Governmental Entity shall mean any supranational, national, state, municipal,
local or foreign government, any instrumentality, subdivision, court, administrative agency or commission or other governmental authority, or any quasi-governmental or private body exercising any regulatory or other governmental or
quasi-governmental authority.
Indemnified Party shall have the meaning set forth in Section 6.9.1.
Insurance Policies shall have the meaning set forth in Section 4.22.
Intellectual Property shall mean all intellectual property and other similar proprietary rights in any jurisdiction
worldwide, whether registered or unregistered, including such rights in and to: (a) patents (including all reissues, divisions, provisionals, continuations and continuations-in-part, re-examinations, renewals and extensions thereof), patent
applications, patent disclosures or other patent rights; (b) copyrights, design, design registration, and all registrations, applications for registration, and renewals for any of the foregoing, and any moral rights;
(c) trademarks, service marks, trade names, business names, logos, trade dress, certification marks and other indicia of commercial source or origin together with all goodwill associated with the foregoing, and all registrations, applications
and renewals for any of the foregoing; (d) trade secrets and business, technical and know-how information, databases, data collections, and drawings, including any reports issued by any mining consultant, including SRK Consulting, with respect
to the Troy Mine or the Rock Creek Project, and other confidential and proprietary information and all rights therein; (e) software, including data files, source code, object code, application programming interfaces, architecture, files,
records, schematics, computerized databases and other software-related specifications and documentation; and (f) Internet domain name registrations.
Knowledge shall mean, when used with respect to an entity, the actual or constructive knowledge of any officer or director,
after due inquiry and when used with respect to an individual, the actual or constructive knowledge of such individual, after due inquiry.
Law shall mean any domestic or foreign laws, common law, statutes, ordinances, rules, regulations, codes, Orders or legally
enforceable requirements enacted, issued, adopted, promulgated, enforced, ordered or applied by any Governmental Entity.
Legal
Action shall mean claims, actions, suits, arbitration, proceedings or investigations.
Liability shall
mean any liability, indebtedness or obligation of any kind (whether accrued, absolute, contingent, matured, unmatured, known or unknown, or otherwise, and whether or not required to be recorded or reflected on a balance sheet under GAAP).
Liens shall mean, with respect to any property or asset, all pledges, liens, mortgages, charges, encumbrances,
hypothecations, options, rights of first refusal, rights of first offer and security interests of any kind or nature whatsoever.
Maximum Premium shall have the meaning set forth in Section 6.9.3.
Merger shall have the meaning set forth in the Recitals.
5
Merger Consideration Closing Value shall mean the (a) the closing price
of Parent Common Stock on the NYSE on the trading day immediately preceding the Closing Date, multiplied by (b) the Exchange Ratio.
Merger Consideration shall have the meaning set forth in Section 3.1.1.
Merger Sub shall have the meaning set forth in the Preamble.
Mineral Properties shall have the meaning set forth in Section 4.16.1.
Mineral Rights shall mean those mineral and metal concessions, claims, leases, licenses, permits, access rights,
development rights and other rights and interests held, under the control of, or used by the Company or its Subsidiaries and necessary to explore for, develop, classify, mine, process or produce minerals, ore or metals for development purposes on
the Mineral Properties.
Notice Period shall have the meaning set forth in Section 6.4.4.
NYSE shall mean the New York Stock Exchange.
NYSE MKT shall mean the New York Stock Exchange/Market Division.
Order shall mean any order, judgment, writ, stipulation, award, injunction, decree, arbitration award or finding of any
Governmental Entity.
Parent shall have the meaning set forth in the Preamble.
Parent Common Stock shall mean the common stock, par value $0.25 per share, of Parent.
Parent Disclosure Schedule shall have the meaning set forth in Article 5.
Parent Expenses shall have the meaning set forth in Section 8.4.1.
Parent Preferred Stock shall have the meaning set forth in Section 5.2.
Parent Representatives shall have the meaning set forth in Section 6.3.1.
Parent Securities Filings shall have the meaning set forth in Section 5.10.1.
Parent Stock Option Plans shall mean Parents 2010 Stock Incentive Plan and Parents 1995 Option Plan for
Non-employee Directors.
Parent Stock Options shall mean options to purchase shares of Parent Common Stock granted
under the Parent Stock Option Plans.
Party shall have the meaning set forth in the Preamble.
6
Permitted Liens shall mean (a) statutory Liens for current Taxes or other
governmental charges not yet due and payable or the amount or validity of which is being contested in good faith (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (b) mechanics, carriers,
workers, repairers and similar statutory Liens arising or incurred in the ordinary course of business for amounts which are not delinquent or which are being contested by appropriate proceedings (provided appropriate reserves required
pursuant to GAAP have been made in respect thereof), (c) zoning, entitlement, building and other land use regulations imposed by Governmental Entities having jurisdiction over such Persons owned or leased real property, which are not
violated by the current use and operation of such real property, (d) covenants, conditions, restrictions, easements and other similar non-monetary matters of record affecting title to such Persons owned or leased real property, which do
not materially impair the occupancy or use of such real property for the purposes for which it is currently used in connection with such Persons businesses, (e) any right of way or easement related to public roads and highways, which do
not materially impair the occupancy or use of such real property for the purposes for which it is currently used in connection with such Persons businesses, and (f) Liens arising under workers compensation, unemployment insurance,
social security, retirement and similar legislation.
Person shall mean any individual, corporation, limited or general
partnership, limited liability company, limited liability partnership, trust, association, joint venture, Governmental Entity and other entity and group (which term includes a group as such term is defined in Section 13(d)(3) of the
Exchange Act).
Property Agreements shall mean the leases, licenses, options, purchase and sale agreements or other
instruments pursuant to which any of the Mineral Properties or Mineral Rights are held.
Proxy Statement shall have the
meaning set forth in Section 6.2.1.
Real Property Leases shall have the meaning set forth in
Section 4.15.1.
Representative shall have the meaning set forth in Section 6.3.1.
Rock Creek Project shall have the meaning set forth in Section 4.15.2.
S-4 shall have the meaning set forth in Section 6.2.1.
Sarbanes-Oxley Act shall mean the Sarbanes-Oxley Act of 2002 (including the rules and regulations promulgated thereunder).
SEC shall mean the Securities and Exchange Commission.
Securities Act shall mean the United States Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
Shareholder Approval shall have the meaning set forth in Section 4.3.1.
Shareholders Agreement shall the meaning set forth in the Recitals.
7
Stock Merger Exchange Fund shall have the meaning set forth in
Section 3.3.1.
Subsidiary or Subsidiaries of any Person shall mean any corporation,
limited liability company, partnership or other legal entity of which such Person (either alone or through or together with any other Affiliate or Subsidiary thereof) owns, directly or indirectly, a majority of the stock or other Equity Interests,
the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity.
Superior Proposal shall mean a bona fide written Takeover Proposal involving the direct or indirect acquisition pursuant to
a tender offer, exchange offer, merger, consolidation or other business combination, of greater than ninety percent 90% of the Companys consolidated assets or greater than ninety percent (90%) of the outstanding Company Stock, that the
Company Board determines in good faith (after consultation with outside legal counsel and an independent financial advisor) is more favorable from a financial point of view to the holders of Company Stock than the transactions contemplated by this
Agreement, taking into account (a) all financial considerations, (b) the identity of the third party making such Takeover Proposal, (c) the anticipated timing, conditions (including any financing condition or the reliability of any
debt or equity funding commitments) and prospects for completion of such Takeover Proposal, (d) the other terms and conditions of such Takeover Proposal and the implications thereof on the Company, including relevant legal, regulatory and other
aspects of such Takeover Proposal deemed relevant by the Company Board and (e) any revisions to the terms of this Agreement and the Merger proposed by Parent during the Notice Period set forth in Section 6.4.4.
Surviving Corporation shall have the meaning set forth in Section 2.1.
Takeover Proposal shall mean a proposal or offer from, or indication of interest in making a proposal or offer by, any
Person (other than Parent and its Subsidiaries, including Merger Sub) relating to any (a) direct or indirect acquisition of assets of the Company or its Subsidiaries (including any voting equity interests of Subsidiaries, but excluding sales of
assets in the ordinary course of business) equal to fifteen percent (15%) or more of the fair market value of the Companys consolidated assets or to which fifteen percent (15%) or more of the Companys net revenues or net income
on a consolidated basis are attributable, (b) direct or indirect acquisition of fifteen percent (15%) or more of the voting equity interests of the Company, (c) tender offer or exchange offer that if consummated would result in any
Person beneficially owning (within the meaning of Section 13(d) of the Exchange Act) fifteen percent (15%) or more of the voting equity interests of the Company, (d) merger, consolidation, other business combination or similar
transaction involving the Company or any of its Subsidiaries, pursuant to which such Person would own fifteen percent (15%) or more of the consolidated assets, net revenues or net income of the Company, taken as a whole, or (e) liquidation
or dissolution (or the adoption of a plan of liquidation or dissolution) of the Company or the declaration or payment of an extraordinary dividend (whether in cash or other property) by the Company.
Taxes shall mean all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad
valorem, transfer, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance,
8
environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever,
together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties.
Tax Returns shall mean any return, declaration, report, claim for refund, information return or statement or other
document required to be filed with or provided to any taxing authority in respect of Taxes, including any schedule or attachment thereto, and including any amendment thereof.
Termination Date shall have the meaning set forth in Section 8.1(ii)(b).
Termination Fee shall have the meaning set forth in Section 8.4.1.
Third Party shall mean any Person or group (within the meaning of Section 13(d)(3) of the Exchange
Act) other than the Company, Parent or Merger Sub or any of their Subsidiaries.
Troy Mine shall mean the underground
silver and copper mine located in Lincoln County, Montana, and all related mill, infrastructure, and property (personal and real).
TSX shall mean the Toronto Stock Exchange.
Voting Debt shall have the meaning set forth in Section 4.2.3.
Warrants shall have the meaning set forth in Section 3.2.2.
Section 1.2 Interpretation. In this Agreement, unless otherwise specified, the following rules of interpretation apply:
(a) Unless otherwise indicated, all underlined references to Articles, Sections, Schedules, Exhibits, clauses and Parties are references
to articles, sections or subsections, schedules, exhibits and clauses of and parties to, this Agreement;
(b) references to any Person
include references to such Persons successors and permitted assigns;
(c) words importing the singular include the plural and vice
versa;
(d) words importing one gender include the other gender;
(e) references to months are to calendar months;
(f) the words include, includes or including and words of similar import mean include, without
limitation, includes, without limitation, or including, without limitation, regardless of whether any reference to without limitation or words of similar import is made;
9
(g) the words hereof, herein and hereunder and words of
similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement;
(h) references to $ or dollars refer to U.S. dollars;
(i) a defined term has its defined meaning throughout this Agreement and in each Exhibit and Schedule to this Agreement, regardless of
whether it appears before or after the place where it is defined;
(j) references to any specific provision of any Law shall also be
deemed to be references to any successor provisions or amendments thereof and to any rules or regulations promulgated thereunder;
(k)
the word or is not exclusive and is used in the inclusive sense of and/or, and
(l) the phrase made
available shall mean provided by the Company for posting to the Files-To-Go datasite administered by Parent.
Article 2
The Merger
Section 2.1 The Merger. At the Effective Time, upon the terms and subject to satisfaction or valid waiver of the
conditions set forth in this Agreement, and in accordance with the DGCL, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease and the Company shall continue as
the corporation surviving the Merger (the Surviving Corporation).
Section 2.2 Closing. Upon the
terms and subject to the conditions of this Agreement, the closing of the Merger (the Closing) shall take place on a day that is a Business Day (a) at the offices of Parent, no later than the second Business Day following the
satisfaction of the conditions set forth in Article 7 (other than (i) those conditions that are waived in accordance with the terms of this Agreement by the Party or Parties for whose benefit such conditions exist and (ii) any
such conditions that, by their terms, are not capable of being satisfied until the Closing) or (b) at such other place, time and/or date as the Parties may otherwise agree; provided, however, that this Agreement may be terminated
pursuant to and in accordance with Section 8.1 such that the Parties shall not be required to effect the Closing. The date upon which the Closing shall occur is referred to herein as the Closing Date.
Section 2.3 Effective Time. Subject to the provisions of this Agreement, at the Closing, the Company, Parent and Merger Sub
Shall cause a certificate of merger (the Certificate of Merger) to be executed, acknowledged and filed with the Secretary of State of the State of Delaware in accordance with the relevant provisions of the DGCL and shall make all
other filings or recordings required under the DGCL. The Merger will become effective at such time as the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware or at such later date or time as may be agreed
by the Company and Parent in writing and specified in the Certificate of Merger in accordance with the DGCL (the effective time of the Merger being hereinafter referred to as the Effective Time).
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Section 2.4 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all the property, rights, privileges, immunities, powers franchises, licenses and
authority of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities, obligations, restrictions and duties of the Company and Merger Sub shall become the debts, liabilities, obligations, restrictions and duties
of the Surviving Corporation.
Section 2.5 Certificate of Incorporation; Bylaws. At the Effective Time, the Certificate
of Incorporation of the Company (as amended), as in effect on the date hereof, shall be amended in its entirety to read as set forth on Exhibit B hereto, and, as so amended, shall be the certificate of incorporation of the Surviving
Corporation, until thereafter amended as provided therein and by applicable law. At the Effective Time, the by-laws of Merger Sub in effect immediately prior to the Effective Time shall be the by-laws of the Surviving Corporation, until thereafter
amended as provided therein and by applicable Law.
Section 2.6 Directors and Officers. The directors of Merger Sub
immediately prior to the Effective Time shall be the directors of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation. The officers of Merger Sub immediately
prior to the Effective Time shall be the officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation.
Article 3
Conversion of Securities; Exchange of Certificates
Section 3.1 Conversion of Securities. At the Effective Time, by virtue of the Merger and without any action on the part of
Parent, Merger Sub, the Company or any of their shareholders, the following shall occur.
Section 3.1.1 Conversion Generally.
Each share of common stock of the Company, par value $0.01 per share (Company Stock), issued and outstanding immediately prior to the Effective Time (other than any shares of Company Stock to be canceled pursuant to
Section 3.1.2), shall be converted into the right to receive 0.1622 (the Exchange Ratio) shares of Parent Common Stock (the Merger Consideration). All shares of Company Stock that have been converted
into the right to receive the Merger Consideration as provided in this Section 3.1.1 shall as of the Effective Time no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each Certificate
and each Book-Entry Share which immediately prior to the Effective Time represented such shares shall thereafter represent only the right to receive the Merger Consideration therefor in accordance with the terms of this Agreement. Certificates and
Book-Entry Shares previously representing shares of Company Stock (other than any shares of Company Stock to be canceled pursuant to Section 3.1.2) shall be exchanged for the Merger Consideration, without interest, upon the surrender of
such Certificates or Book-Entry Shares in accordance with the provisions of Section 3.3.
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Section 3.1.2 Cancellation of Certain Shares. Each share of Company Stock held
(i) by Parent, Merger Sub, any Subsidiary of Parent or Merger Sub, (ii) in the treasury of the Company, or (iii) by any Subsidiary of the Company immediately prior to the Effective Time shall be automatically canceled and retired and
shall cease to exist and no consideration shall be delivered in exchange therefor.
Section 3.1.3 Merger Sub. Each share of
common stock, par value $0.01 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one newly issued, fully paid and non-assessable share of common stock of the Surviving
Corporation.
Section 3.1.4 Change in Shares. If between the date of this Agreement and the Effective Time the outstanding
shares of Company Stock, or securities convertible or exchangeable into or exercisable for shares of Company Stock, shall have been changed into a different number of shares or a different class in accordance with this Agreement, by reason of any
stock dividend (excluding, for the avoidance of doubt, cash dividends), subdivision, reclassification, recapitalization, split, reverse split, combination, exchange of shares or any other similar transaction, the Exchange Ratio shall be
correspondingly adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, reverse split, combination, exchange of shares or other similar transaction.
Section 3.2 Treatment of Stock Options and Warrants.
Section 3.2.1 Stock Options. At the Effective Time, each option (each, a Company Stock Option) to purchase
shares of Company Stock granted under the Company Stock Plan that is outstanding immediately prior to the Effective Time (whether or not vested) that has an exercise price per share greater than the Merger Consideration (which is applicable to all
Company Stock Options) shall be cancelled without any payment being made in respect thereof.
Section 3.2.2 Warrants. At the
Effective Time, and in accordance with the terms of each warrant to purchase shares of Company Stock that is listed on Section 4.2.3 of the Company Disclosure Schedule (collectively, the Warrants) and that is issued
and outstanding immediately prior to the Effective Time, unless otherwise elected by the holder of any such Warrant, Parent shall cause the Surviving Corporation to issue a replacement warrant to each holder thereof providing that such replacement
warrant shall be exercisable for shares of Parent Common Stock (without interest, and subject to deduction for any required withholding Tax, and no issuance of fractional shares and the number of such shares rounded down) with a value equal to the
product of (i) the Exchange Ratio and (ii) the number of shares subject to such Warrant, with an exercise price of $6.17 per share of Parent Common Stock pursuant to and in accordance with such holders Warrant (as amended). From and
after the Closing, Parent shall cause the Surviving Corporation to comply with all of the terms and conditions set forth in each such replacement warrant. Prior to the Closing, the board of directors of the Company shall approve amendments to the
Warrants to reflect the treatment of the Warrants pursuant to this Section 3.2.2 pursuant to and in accordance with Section 14(d) of the Warrants.
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Section 3.2.3 Termination of Company Stock Plans. Prior to the Effective Time, the
Company shall provide such notice, if any, to the extent required under the terms of the applicable Company Stock Plans, obtain any necessary consents, adopt applicable resolutions, amend the terms of the Company Stock Plans or any outstanding
awards, and take all other appropriate actions to: (i) give effect to the transactions contemplated in Sections 3.2.1 and Section 3.2.2; (ii) terminate the Company Stock Plans as of the Effective Time; and
(iii) ensure that after the Effective Time, neither any holder of Company Stock Options or Warrants, any beneficiary thereof, nor any other participant in any Company Stock Plan shall have any right thereunder to acquire any securities of the
Company or to receive any payment or benefit with respect to any award previously granted under the Company Stock Plans, except as provided in Sections 3.2.1 and Section 3.2.2. As of the Effective Time, all Company Stock Plans
shall be terminated and no further awards or other rights shall be granted thereunder.
Section 3.3 Exchange of
Certificates.
Section 3.3.1 Exchange Agent. Prior to the Closing Date, Parent shall appoint an exchange agent reasonably
acceptable to the Company (the Exchange Agent) for the purpose of exchanging shares of Company Stock for Merger Consideration. Prior to the Effective Time, Parent shall make available to the Exchange Agent, for the benefit of the
holders of shares of Company Stock, shares of Parent Common Stock and cash in an amount equal to the aggregate Merger Consideration to be paid pursuant to this Article 3 (the certificates representing the shares of Parent Common Stock
comprising such aggregate Merger Consideration and the cash in lieu of fractional shares being referred to hereinafter as the Stock Merger Exchange Fund). The Exchange Agent shall, pursuant to irrevocable instructions, deliver the
Merger Consideration out of the Stock Merger Exchange Fund. The Stock Merger Exchange Fund shall not be used for any purpose other than as set forth in this Agreement.
Section 3.3.2 Exchange Procedures. Promptly following the Effective Time, the Exchange Agent shall mail to each holder of record
of a certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Stock (the Certificates) or of non-certificated shares of Company Stock represented by book-entry
(Book-Entry Shares) (a) a letter of transmittal in customary form, which shall be subject to the reasonable approval of the Parties prior to the Effective Time, and (b) instructions for use in effecting the surrender of
Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares in exchange for the Merger Consideration. Upon surrender of Certificates (or affidavits of loss and appropriate bonds in lieu thereof), or in the case of Book-Entry Shares,
upon adherence to the applicable procedures set forth in the letter of transmittal, for cancellation to the Exchange Agent together with such letter of transmittal, properly completed and duly executed in accordance with the instructions thereto,
and such other documents as may be reasonably required by the Exchange Agent or pursuant to such instructions, the holder of such Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration, without
interest, allocable to such Certificates or Book-Entry Shares, and the Certificates or Book-Entry Shares so surrendered shall forthwith be canceled. In the event of a transfer of ownership of shares of Company Stock which is not registered in the
transfer records of the Company, the Merger Consideration may be issued to a transferee if the Certificate representing such shares of Company Stock is presented to the Exchange Agent (or in the case of Book-Entry Shares, upon adherence to the
applicable procedures set forth in the letter of transmittal),
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accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer Taxes have been paid. Until surrendered as contemplated by this
Section 3.3, each Certificate and each Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration allocable to such Certificates or Book-Entry
Shares. No dividends or other distributions with respect to Parent Common Stock issued in the Merger having a record date after the Effective Time and payable to the holders of record thereof after the Effective Time will be paid to Persons entitled
by reason of the Merger to receive Parent Common Stock until such Persons surrender their Certificates (or in the case of Book-Entry Shares, upon adherence to the applicable procedures set forth in the letter of transmittal) as provided in this
Section 3.2.2. Upon such surrender, there shall be paid to the Person in whose name the Merger Consideration is issued any dividends or other distributions having a record date after the Effective Time and payable with respect to such
Parent Common Stock between the Effective Time and the time of such surrender. After such surrender, at the appropriate payment date, there shall be paid to the Person in whose name the Merger Consideration is issued any dividends or other
distributions on such Parent Common Stock with a payment date after such surrender which shall have a record date after the Effective Time. In no event shall the Persons entitled to receive such dividends or other distributions be entitled to
receive interest on such dividends or other distributions.
Section 3.3.3 Further Rights in Company Stock. All Merger
Consideration paid in accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such shares of Company Stock.
Section 3.3.4 Termination of Stock Exchange Fund. Any portion of the Stock Merger Exchange Fund (including any interest received
with respect thereto) which remains undistributed to the holders of Company Stock on the day that is six months after the Effective Time shall be delivered to Parent upon demand, and any holders of Company Stock who have not theretofore complied
with this Article 3 shall thereafter look only to Parent (subject to abandoned property, escheat or other similar Laws) for payment of the Merger Consideration, without any interest thereon.
Section 3.3.5 No Liability. Neither the Exchange Agent nor any of the Parties shall be liable to any holder of shares of Company
Stock entitled to payment of the Merger Consideration under this Article 3 for any Merger Consideration (including any interest or cash in lieu of fractional shares) from the Stock Merger Exchange Fund properly delivered to a public official
pursuant to any abandoned property, escheat or similar Law. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the Parent Common Stock held by it from time to time hereunder, except that it shall
receive and hold all dividends or other distributions paid or distributed with respect to such Parent Common Stock for the account of the Persons entitled thereto.
Section 3.3.6 Lost Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the Person claiming such Certificate to be lost, stolen or destroyed in the form required by the Exchange Agent and, if required by Parent, the posting by such Person of a bond, in such reasonable and customary amount as Parent may
direct, as indemnity against any claim that may be made with respect to such lost, stolen or destroyed Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the applicable Merger Consideration without
any interest thereon.
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Section 3.3.7 Withholding. Each of Parent, the Surviving Corporation and the Exchange
Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Company Stock such amounts as Parent, the Surviving Corporation, or the Exchange Agent are required to deduct and
withhold under the Code, or any applicable provision of state, local or foreign tax Law, with respect to the making of such payment. To the extent that amounts are so withheld by Parent, the Surviving Corporation, or the Exchange Agent and paid over
to the applicable Governmental Entity, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Company Stock in respect of whom such deduction and withholding was made by Parent, the Surviving
Corporation or the Exchange Agent, as the case may be.
Section 3.4 No Fractional Shares. No fractional shares of
Parent Common Stock shall be issued in connection with the Merger. If a holder of shares of Company Stock is entitled to receive any fractional share of Parent Common Stock based on application of the Exchange Ratio to the total number of shares of
Company Stock held by such holder immediately prior to the Effective Time, the holder will be entitled to receive cash in lieu of fractional shares based on the Merger Consideration Closing Value.
Section 3.5 Stock Transfer Books. At the Effective Time, the stock transfer books of the Company shall be closed and
thereafter there shall be no further registration of transfers of shares of Company Stock outstanding on the records of the Company prior to the Effective Time. From and after the Effective Time, the holders of Certificates and Book-Entry Shares
shall cease to have any rights with respect to the shares of Company Stock represented thereby except as otherwise provided herein or by Law. From and after the Effective Time, any Certificates presented to the Exchange Agent, Parent or the
Surviving Corporation for transfer or any other reason shall be cancelled and exchanged for the applicable Merger Consideration as provided in, and in accordance with, this Article 3.
Article 4
Representations and Warranties of the Company
Except as set forth in the Company disclosure schedule delivered by the Company to Parent on the date hereof (the Company Disclosure
Schedule), the Company represents and warrants to Parent and Merger Sub as follows:
Section 4.1 Organization and
Qualification; Standing and Power; Charter Documents; Minutes; Subsidiaries.
Section 4.1.1 Organization and Qualification;
Standing and Power. The Company and each of its Subsidiaries is a corporation, limited liability company or other legal entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization, and has the
requisite corporate, limited liability company or other organizational, as applicable, power and authority to own, lease and operate its assets and to carry on its business as now conducted. Each of the Company and its Subsidiaries is duly qualified
or
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licensed to do business as a foreign corporation, limited liability company or other legal entity and is in good standing in each jurisdiction where the character of the assets and properties
owned, leased or operated by it or the nature of its business makes such qualification or license necessary, except where the failure to be so qualified or licensed, or to be in good standing, would not reasonably be expected to have, individually
or in the aggregate, a material adverse impact on the Company and its Subsidiaries.
Section 4.1.2 Charter Documents. The
Company has delivered or made available to Parent a true and correct copy of the Charter Documents of the Company and each of its Subsidiaries. Neither the Company nor any of its Subsidiaries is in violation of any of the provisions of its Charter
Documents.
Section 4.1.3 Minutes. The Company has made available to Parent true and correct copies of the minutes (or, in the
case of minutes that have not yet been finalized, a brief summary of the meeting) of all meetings of stockholders, the Company Board and each committee of the Company Board since August 25, 2004 and stock records books of the Company and its
Subsidiaries. The minute books of the Company and its Subsidiaries contain true, correct and complete records of all meetings of the Company, the Company Board and any committees of the Company Board, and the stockholders of the Company and no
meeting, or action taken by written consent, of the Company Board or committee or stockholders of the Company (as applicable) has been held for which minutes have not been prepared and are not contained in such minute books. At the Closing, all of
those books and records will be in the possession of the Company and its Subsidiaries.
Section 4.1.4 Subsidiaries.
Section 4.1.4 of the Company Disclosure Schedule lists each of the Subsidiaries of the Company as of the date hereof and its place of organization. Company, directly or indirectly, owns one hundred percent (100%) of the outstanding
Equity Interest of each Subsidiary of the Company. All of the outstanding shares of capital stock of, or other equity or voting interests in, each Subsidiary of the Company have been validly issued, were issued free of pre-emptive rights and are
fully paid and non-assessable, and are free and clear of all Liens, including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity or voting interests. Except for the capital stock of, or other equity
or voting interests in, its Subsidiaries, the Company does not own, directly or indirectly, any capital stock of, or other equity or voting interests in, any Person.
Section 4.2 Capital Structure.
Section 4.2.1 Capital Stock. The entire authorized capital stock of the Company consists of 100,000,000 shares of common stock,
par value $0.01 per share, of which 39,273,989 shares are issued and outstanding as of the close of business on March 25, 2015 (the Capitalization Date) and no shares are held in treasury and 25,000,000 shares of preferred
stock, par value $0.01 per share, of which no shares are issued and outstanding and no shares are held in treasury. All of the outstanding shares of Company Stock have been duly authorized, are validly issued, fully paid, and nonassessable, and have
been issued in compliance with all applicable Laws and are not subject to any pre-emptive rights. The Company is not a party or subject to any agreement or understanding, and there is no agreement or understanding between any Persons, that affects
or relates to the voting or giving of written consents with respect to any securities of the Company or the voting by any director of the Company. No Subsidiary of the Company owns any Company Stock.
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Section 4.2.2 Stock Options.
(i) As of the Capitalization Date, an aggregate of 6,500,000 shares of Company Stock were subject to issuance pursuant to Company Stock
Options granted under the Company Stock Plan. Section 4.2.2(i) of the Company Disclosure Schedule sets forth a true, correct, and complete list of each outstanding Company Stock Option granted under the Company Stock Plan and
(a) the name of the holder of such Company Stock Option, (b) the number of shares of Company Stock subject to such outstanding Company Stock Option, (c) the exercise price of such Company Stock Option, (d) the date on which such
Company Stock Option was granted or issued, (e) the applicable vesting schedule, and the extent to which such Company Stock Option is vested and exercisable as of the date hereof, and (g) the date on which such Company Stock Option
expires. All shares of Company Stock subject to issuance under the Company Stock Plan, upon issuance in accordance with the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly
issued, fully paid and non-assessable.
(ii) Each outstanding Company Stock Option was granted under the Company Stock Plan and the Company
Stock Plan provides that in the event of a Corporate Change (as defined in the Company Stock Plan), the Company has the power to cancel any Company Stock Option that has an exercise price that is less than the per share consideration to be paid
under the terms of the Corporate Change transaction, and there are no agreements with any holder of Company Stock Options to the contrary. There are no Company Stock Options that have a per share exercise price that is less than the per share Merger
Consideration and as of the Closing all Company Stock Options will be canceled and the holders thereof will not be entitled to any Merger Consideration or have any other rights after the Closing with respect to Company Stock Options.
(iii) Other than the Company Stock Options and the Warrants there are no outstanding (a) securities of the Company or any of its
Subsidiaries convertible into or exchangeable for Voting Debt or shares of capital stock of the Company, (b) options, warrants or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the
Company or any of its Subsidiaries to issue, any Voting Debt or shares of capital stock of (or securities convertible into or exchangeable for shares of capital stock of) the Company or (c) restricted shares, restricted stock units, stock
appreciation rights, performance shares, profit participation rights, contingent value rights, phantom stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value
or price of, any shares of capital stock of the Company, in each case that have been issued by the Company or its Subsidiaries (the items in clauses (a), (b) and (c), together with the capital stock of the Company, being referred to
collectively as Company Securities). All outstanding shares of Company Stock, all outstanding Company Stock Options, all outstanding Warrants, and all outstanding shares of capital stock, voting securities or other ownership
interests in any Subsidiary of the Company, have been issued or granted, as applicable, in compliance in all material respects with all applicable securities Laws.
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(iv) There are no outstanding Contracts requiring the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any Company Securities. Neither the Company nor any of its Subsidiaries is a party to any voting, shareholder rights or other similar agreement with respect to any Company Securities.
Section 4.2.3 Voting Debt; Warrants. No bonds, debentures, notes or other indebtedness issued by the Company or any of its
Subsidiaries (i) having the right to vote on any matters on which stockholders or equityholders of the Company or any of its Subsidiaries may vote (or which is convertible into, or exchangeable for, securities having such right), or
(ii) the value of which is directly based upon or derived from the capital stock, voting securities or other ownership interests of the Company or any of its Subsidiaries, are issued or outstanding (collectively, Voting
Debt). An aggregate of 2,249,550 shares of Company Stock are subject to, and 2,249,550 shares of Company Stock are reserved for issuance upon exercise of, the Warrants and all such Warrants were granted pursuant to the forms of Warrants
for United States residents or Canadian residents made available to Parent. Section 4.2.3 of the Company Disclosure Schedule sets forth a true, correct, and complete list of each outstanding Warrant and (a) the name of the holder of
such Warrant, (b) the number of shares of Company Stock subject to such outstanding Warrant (c) the exercise price of such Warrant, (d) the date on which such Warrant was granted or issued, and (e) the date on which such Warrant
expires.
Section 4.3 Authority.
Section 4.3.1 Company Authorization. The Company has all necessary corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the part of the Company and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby,
other than (a) the affirmative vote of holders of a majority of the outstanding shares of Company Stock to approve the principal terms of this Agreement and the Merger (the Shareholder Approval) and (b) the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DGCL. This Agreement has been duly authorized and validly executed and delivered by the Company and, assuming this Agreement is a valid and binding
obligation of Parent and Merger Sub, this Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to the effect of bankruptcy, insolvency (including all Laws relating
to fraudulent transfers), reorganization, moratorium and similar Laws relating to or affecting creditors rights or remedies and the effect of general principles of equity, whether considered in a proceeding in equity or at law (including the
possible unavailability of specific performance or injunctive relief), and the discretion of the court before which a proceeding is brought (the Enforceability Limitations).
Section 4.3.2 Board Action. Subject to Section 6.4, the Special Committee comprised of the independent members of the
Company Board, by resolutions duly adopted at meetings duly called and held and, as of the date hereof, not subsequently rescinded or modified in any way, has, as of the date hereof (i) determined that this Agreement and the transactions
provided for herein are fair to and in the best interest of the Company and the holders of
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Company Stock, (ii) approved and declared advisable this Agreement and the transactions contemplated hereby, including the Merger and (iii) resolved to recommend in accordance with
applicable Law that the holders of Company Stock vote in favor of the approval of this Agreement and the Merger (the Company Recommendation) and directed that such matter be submitted for consideration of the stockholders of the
Company at the Company Shareholders Meeting.
Section 4.4 No Conflict; Required Filings and Consents.
Section 4.4.1 No Conflict. The execution, delivery and performance by the Company of this Agreement do not, and the consummation
by the Company of the transactions contemplated hereby will not, (i) assuming the Shareholder Approval is obtained, contravene or conflict with, or result in any violation or breach of, the Charter Documents of the Company or any of its
Subsidiaries, (ii) assuming that all consents, approvals and authorizations described in Section 4.4.2 have been obtained prior to the Effective Time and all filings and notifications described in Section 4.4.2 have been
made and any waiting periods thereunder have terminated or expired prior to the Effective Time, conflict with or violate any Law applicable to the Company or by which any property or asset of the Company is bound or (iii) require any consent or
approval under, result in any breach of or any loss of any benefit under, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any right of termination, suspension,
revocation, amendment, acceleration or cancellation of, or result in the creation of any Liens on any property or asset of the Company, other than Permitted Liens, pursuant to any Contract to which the Company is a party or by which any of its
properties or assets are bound, except where the failure to be in compliance with the foregoing, would not reasonably be expected to have, individually or in the aggregate, a material adverse impact on the Company and its Subsidiaries.
Section 4.4.2 Consents. The execution, delivery and performance of this Agreement by the Company do not, and the consummation of
the transactions contemplated hereby will not, require the Company to obtain any consent, approval or authorization of, or make any filing with or notification to, any Governmental Entity, except (i) under the Exchange Act (including the filing
of the Proxy Statement and the S-4) and any applicable state securities, takeover or blue sky Laws, (ii) the filing and recordation of the Certificate of Merger or other documents as required by the DGCL, and (iii) where the
failure to obtain such consents, approvals or authorizations, or to make such filings or notifications would not individually or in the aggregate, reasonably be expected to have a material adverse impact on the Company and its Subsidiaries.
Section 4.5 Compliance with Laws; Permits.
Section 4.5.1 Compliance with Laws. The Company and each of its Subsidiaries is and, since January 1, 2010, has been, in
material compliance with all Laws or Orders applicable to the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries or any of their respective businesses or properties is bound. Since January 1, 2010, no
Governmental Entity has issued any notice or notification stating that the Company or any of its Subsidiaries is not in material compliance with any Law.
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Section 4.5.2 Permits. Section 4.5.2 of the Company Disclosure Schedule
sets forth a true, correct and complete list of all the material Company Permits. The Company and its Subsidiaries hold, to the extent legally required to operate their respective businesses, all Company Permits. No suspension or cancellation of any
Permits of the Company or any of its Subsidiaries is pending or, to the Knowledge of the Company, threatened, except for any such suspension or cancellation which would not reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect. The Company and each of its Subsidiaries is and has been in material compliance with the terms of all Company Permits. Neither the transactions contemplated by this Agreement, nor to the Companys Knowledge, any other
event has occurred that, with or without notice or lapse of time or both, would or would reasonably be expected to result in the revocation, suspension, cancellation, lapse or limitation of any Company Permits.
Section 4.6 Securities Filings; Financial Statements.
Section 4.6.1 Company Securities Filings. The Company has timely filed or furnished, as applicable, all reports, prospectuses,
schedules, forms, statements or other documents (including exhibits and all other information incorporated by reference) required to be filed or furnished by it under Securities Act, the Exchange Act, or Canadian Securities Laws, as the case may be,
since January 1, 2010 (collectively, the Company Securities Filings). Each Company Securities Filing (i) as of its date, complied as to form in all material respects with the applicable requirements of the Securities
Act, the Exchange Act, or Canadian Securities Laws, as the case may be, as in effect on the date so filed, (ii) did not, at the time it was filed (or, if subsequently amended or supplemented, at the time of such amendment or supplement),
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading,
and (iii) included, in the case of those which contain annual financial statements, annual financial statements that have been audited by an independent certified public accounting firm. The Company has made available to Parent all such Company
Securities Filings that it has so filed or furnished prior to the date hereof. None of the Companys Subsidiaries is required to file or furnish any forms, reports or other documents with the SEC or any Canadian securities regulatory authority.
Section 4.6.2 Financial Statements. Each of the consolidated financial statements (including, in each case, any notes
thereto) of the Company contained in the Company Securities Filings (collectively, the Company Financial Statements) (i) comply as to form in all material respects with the published rules and regulations of the SEC with
respect thereto as of their respective dates; (ii) was prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto and, in the case of unaudited interim
financial statements, as may be permitted by the SEC for Quarterly Reports on Form 10-Q); and (iii) fairly present the consolidated financial position of the Company and its consolidated Subsidiaries at the respective dates thereof and the
consolidated results of the Companys operations and cash flows for the periods indicated therein, subject, in the case of unaudited interim financial statements, to normal and year-end audit adjustments as permitted by GAAP and the applicable
rules and regulations of the SEC.
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Section 4.6.3 No Undisclosed Liabilities. Neither the Company nor any of its
Subsidiaries has any material Liability except for those (i) that were incurred since the Company Balance Sheet Date in the ordinary course of business, consistent with past practice, and which are disclosed in Section 4.6.3 of the
Company Disclosure Schedule, (ii) that were expressly contemplated under this Agreement, or (iii) that were disclosed or reserved against in the Company Financial Statements (including the notes thereto).
Section 4.6.4 Internal Controls. The Company and each of its Subsidiaries has established and maintains a system of internal
controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) that is sufficient to provide reasonable assurance (i) regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with GAAP, (ii) that receipts and expenditures of the Company and its Subsidiaries are being made only in accordance with authorizations of management and the Company Board, and
(iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Companys and its Subsidiaries assets that could have a material effect on the Companys Financial Statements.
Section 4.6.5 Disclosure Controls and Procedures. The Companys disclosure controls and procedures (as defined in
Rules 13a-15(e) and 15d-15(e) of the Exchange Act) are designed to ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to the Companys management as appropriate to allow timely decisions regarding
required disclosure and to make the certifications of the chief executive officer and chief financial officer of the Company required under the Exchange Act with respect to such reports. The Company has disclosed, based on its most recent evaluation
of such disclosure controls and procedures prior to the date of this Agreement, to the Companys auditors and the audit committee of the Company Board and on Section 4.6.5 of the Company Disclosure Schedule (i) any significant
deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that could adversely affect in any material respect the Companys ability to record, process, summarize and report financial
information, and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Companys internal controls over financial reporting. For purposes of this Agreement, the terms
significant deficiency and material weakness shall have the meaning assigned to them in Public Company Accounting Oversight Board Auditing Standard 2, as in effect on the date of this Agreement.
Section 4.6.6 Off-Balance Sheet Arrangements. Neither the Company nor any of its Subsidiaries is a party to, or has any commitment
to become a party to, any joint venture, off balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among the Company and any of its Subsidiaries, on the one
hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any off balance sheet arrangements (as defined in Item 303(a) of Regulation S-K
under the Exchange Act)), where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Company or any of its Subsidiaries in the Companys or such
Subsidiarys published financial statements or other Company Securities Filings.
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Section 4.6.7 Sarbanes-Oxley Compliance. Each of the principal executive officer and
the principal financial officer of the Company (or each former principal executive officer and each former principal financial officer of the Company, as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange
Act and Sections 302 and 906 of the Sarbanes-Oxley Act with respect to the Company Securities Filings, and the statements contained in such certifications are true and accurate in all material respects. For purposes of this Agreement,
principal executive officer and principal financial officer shall have the meanings given to such terms in the Sarbanes-Oxley Act. Neither the Company nor any of its Subsidiaries has outstanding (nor has arranged or modified
since the enactment of the Sarbanes-Oxley Act) any extensions of credit (within the meaning of Section 402 of the Sarbanes-Oxley Act) to directors or executive officers (as defined in Rule 3b-7 under the Exchange Act) of the Company
or any of its Subsidiaries. The Company is otherwise in material compliance with all applicable provisions of the Sarbanes-Oxley Act and the applicable listing and corporate governance rules of the NYSE MKT and the TSX. The Company has never applied
for or consented to listing on any stock exchange other than the TSX and NYSE MKT.
Section 4.7 Affiliate Transactions.
No executive officer or director of the Company or any of its Subsidiaries or any Person who beneficially owns five percent (5%) or more of the Company Stock (or any of such persons immediate family members or Affiliates or associates) is
a party to any Contract with or binding upon the Company or any of its Subsidiaries or any of their respective assets, rights, or properties or has any interest in any property owned by the Company or its Subsidiaries or has engaged in any
transaction with any of the foregoing within the last twelve (12) months.
Section 4.8 Absence of Certain Changes.
Except for the transactions contemplated hereby or related hereto, since December 31, 2013 the business of the Company and each of its Subsidiaries has been conducted in the ordinary course of business and there has not been or occurred:
(i) any Company Material Adverse Effect or any event, condition, change or effect that could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, or, (ii) any event, condition, action or
effect that, if taken during the period from the date hereof through the Effective Time, would constitute a breach of Section 6.1.
Section 4.9 Employees and Benefits.
Section 4.9.1 Schedule. Section 4.9.1 of the Company Disclosure Schedule contains an true, correct, and complete list
of each material plan, program, policy, agreement, collective bargaining agreement or other arrangement providing for compensation, severance, deferred compensation, performance awards, stock or stock-based awards, fringe, retirement, death,
disability or medical benefits or other employee benefits or remuneration of any kind, including each employment, severance, retention, change in control or consulting plan, program arrangement or agreement, in each case whether written or unwritten
or otherwise, funded or unfunded, including each employee benefit plan, within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA, which is or has been sponsored, maintained, contributed to, or required to be
contributed to, by the Company or any of its ERISA Affiliates for the benefit of any current or former employee, independent contractor, consultant or director of the Company or any of its ERISA Affiliates (each, a Company
Employee), or with respect to which the Company or any of its ERISA Affiliates has or may have any material Liability (collectively, the Company Employee Plans).
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Section 4.9.2 Documents. The Company has made available to Parent true, correct, and
complete copies (or, if a plan is not written, a written description) of all Company Employee Plans and amendments thereto in each case that are in effect as of the date hereof, and, to the extent applicable, (i) all related trust agreements,
funding arrangements and insurance contracts now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise, (ii) the most recent determination or opinion letter received regarding the
tax-qualified status of each Company Employee Plan, (iii) the most recent financial statements for each Company Employee Plan, (iv) the Form 5500 Annual Returns/Reports for the most recent plan year for each Company Employee Plan,
(v) the current summary plan description for each Company Employee Plan, (vi) the most recent actuarial valuation reports related to any Company Employee Plans, and (vii) all coverage, nondiscrimination, top-heavy and Code
Section 415 tests performed with respect to such Employee Benefit Plan for the last three years.
Section 4.9.3 Employee Plan
Compliance. (i) Each Company Employee Plan has been established, administered, and maintained in all material respects in accordance with its terms and in material compliance with applicable Laws, including ERISA and the Code; (ii) all
the Company Employee Plans that are intended to be qualified under Section 401(a) of the Code are so qualified and have received timely determination or opinion letters from the IRS and no such determination or opinion letter has been revoked
nor, to the Knowledge of the Company, has any such revocation been threatened, and to the Knowledge of the Company no circumstance exists that is likely to result in the loss of such qualified status under Section 401(a) of the Code;
(iii) the Company and its ERISA Affiliates, where applicable, have timely made all material contributions and other material payments required by and due under the terms of each Company Employee Plan and applicable Law, and all benefits accrued
under any unfunded Company Employee Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with GAAP; (iv) except to the extent limited by applicable Law, each Company Employee Plan can be
amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without material liability to Parent, the Company or any of its Subsidiaries (other than ordinary administration expenses and in respect of accrued
benefits thereunder); (v) there are no audits, inquiries or Legal Actions pending or, to the Knowledge of the Company, threatened by the IRS or the U.S. Department of Labor, or any similar Governmental Entity with respect to any Company
Employee Plan; (vi) there are no Legal Actions pending, or, to the Knowledge of the Company, threatened with respect to any Company Employee Plan (in each case, other than routine claims for benefits); and (vii) to the Knowledge of the
Company, neither the Company nor any of its ERISA Affiliates has engaged in a transaction that could subject the Company or any ERISA Affiliate to a tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA.
Section 4.9.4 ERISA Liability. Neither the Company nor any Company ERISA Affiliate has incurred or reasonably expects to incur,
either directly or indirectly, any material Liability under Title I or Title IV of ERISA, or related provisions of the Code or foreign Law or regulations relating to employee benefit plans. Neither the Company nor any ERISA Affiliate of the Company
has sponsored or contributed to or been required to contribute to a multiemployer pension plan (as defined in Section 3(37) of ERISA) or other defined benefit plan subject to Title IV of ERISA at any time.
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Section 4.9.5 Certain Company Employee Plans. No Company Employee Plan is a
multiemployer plan (as defined in Section 3(37) of ERISA), a multiple employer plan (as defined in Section 4063 or Section 4064 of ERISA or Section 413 of the Code), an employee benefit plan that is subject to Section 302 of
ERISA, Title IV of ERISA or Section 412 of the Code, a defined benefit plan (as defined in Section 3(35) of ERISA), or a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA.
Section 4.9.6 No Post-Employment Obligations. No Company Employee Plan provides post-termination or retiree welfare benefits to
any person for any reason, except as may be required by COBRA or other applicable Law, and neither the Company nor any of its ERISA Affiliates has any Liability to provide post-termination or retiree welfare benefits to any person or ever
represented, promised or contracted to any Company Employee (either individually or to Company Employees as a group) or any other person that such Company Employee(s) or other person would be provided with post-termination or retiree welfare
benefits, except to the extent required by COBRA or other applicable Law.
Section 4.9.7 Examination and Audit. No Company
Employee Plan is nor, within the three years prior to the date hereof has been, the subject of an examination or audit by a Governmental Entity or is the subject of an application or filing under, or is a participant in, an amnesty, voluntary
compliance, self-correction or similar program sponsored by any Governmental Entity.
Section 4.9.8 Section 409A
Compliance. Each Company Employee Plan that is subject to Section 409A of the Code has been operated in compliance with such section and all applicable regulatory guidance (including proposed regulations, notices, rulings, and final
regulations).
Section 4.9.9 Group Health Plan Compliance. Each of the Company and its Subsidiaries complies in all material
respects with the applicable requirements of COBRA, the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Insurance Portability and Accountability Act of 1996, or any similar state, foreign or local Law with respect to
each Company Employee Plan that is a group health plan within the meaning of Section 5000(b)(1) of the Code or such state, foreign or local Law.
Section 4.9.10 Effect of Transaction. Neither the execution of this Agreement, the consummation of the Merger, nor any of the
transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, employee, contractor or consultant of the Company to severance pay or any
other payment, except as set forth in Section 4.9.10(i) of the Company Disclosure Schedule; (ii) accelerate the time of payment, funding, or vesting, or increase the amount of, compensation due to any such individual,
(iii) limit or restrict the right of the Company to merge, amend or terminate any Company Employee Plan, (iv) increase the amount payable or result in any other material obligation pursuant to any Company Employee Plan, or (v) result
in excess parachute payments within the meaning of Section 280G(b) of the Code. The Company has
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made available to Parent true, correct and complete copies of any Code Section 280G calculations prepared (whether or not final) with respect to any disqualified individual in connection
with the transactions contemplated by this Agreement. Neither the Company nor any of its Subsidiaries is party to an agreement or arrangement with any Person (i) which requires the Company or any of its Subsidiaries to pay a tax gross-up under
Sections 409A, 280G or 4999 of the Code or (ii) that has resulted or would result, whether as a result of the Merger or the other transactions contemplated by this Agreement, separately or in the aggregate (either alone or together with any
other event, including, any termination of employment) in the payment of (A) any excess parachute payment within the meaning of Code Section 280G or (B) any amount that will not be fully deductible as a result of Code
Section 162(m).
Section 4.9.11 Employment Law Matters. The Company and each of its Subsidiaries is in material
compliance with all applicable Laws and agreements (i) respecting hiring, employment, termination of employment, plant closing and mass layoff, employment discrimination, harassment, retaliation and reasonable accommodation, leaves of absence,
terms and conditions of employment, wages and hours of work, employee health and safety, leasing and supply of temporary and contingent staff, engagement of independent contractors, including proper classification of same, payroll taxes, and
immigration with respect to Company Employees and contingent workers; and (ii) relating to the relations between it and any labor organization, trade union, work council or other body representing Company Employees.
Section 4.9.12 Labor. Neither Company nor any of its Subsidiaries is party to, or subject to, any collective bargaining agreement
or other agreement with any labor organization, work council or trade union with respect to any of its or their operations. No material work stoppage, slowdown or labor strike against the Company or any of its Subsidiaries with respect to employees
who are employed within the United States is pending, threatened or has occurred in the last two years. None of the Company Employees are represented by a labor organization, work council or trade union and, to the Knowledge of the Company, there is
no organizing activity, Legal Action, election petition, union card signing or other union activity or union corporate campaign of or by any labor organization, trade union or work council directed at the Company or any of its Subsidiaries, or any
Company Employees. There are no Legal Actions, government investigations, or labor grievances pending, or, to the Knowledge of the Company, threatened relating to any employment related matter involving any Company Employee or applicant, including
charges of unlawful discrimination, retaliation or harassment, failure to provide reasonable accommodation, denial of a leave of absence, failure to provide compensation or benefits, unfair labor practices, or other alleged violations of Law, except
for any of the foregoing which would not reasonably be expected to have, individually or in the aggregate, a material adverse impact on the Company and its Subsidiaries.
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Section 4.10 Material Contracts.
Section 4.10.1 Contracts. Set forth in Section 4.10 of the Company Disclosure Schedule is a true, correct, and
complete list of all of the following Contracts to which the Company or any of its Subsidiaries is party or by which the Company or any of its Subsidiaries is bound:
(i) any Contract that, as of the date hereof, is a material contract (as such term is defined in Item 601(b)(10) of
Regulation S-K promulgated by the SEC), whether or not filed by the Company with the SEC;
(ii) any Contract with respect to (i) any
joint venture, partnership, or similar arrangements that are material to the Company or its Subsidiaries taken as a whole, or (ii) the purchase of any Equity Interest in any other entity;
(iii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts, in each case relating to
indebtedness for borrowed money, whether as borrower or lender, other than accounts receivables and payables;
(iv) any Contract relating
to any lease or pending acquisition or disposition, directly or indirectly (by merger or otherwise), by the Company or its Subsidiaries of properties or assets;
(v) any Contract which purports to limit in any material respect the right of the Company or any of its Subsidiaries (or, at any time after
the consummation of the Merger, Parent or any of its Subsidiaries) (x) to engage in any line of business, or (y) to compete with any Person or operate in any geographical location;
(vi) any employment or consulting agreement, contract or commitment (in each case with respect to which the Company or any of its Subsidiaries
has continuing obligations) with any officer, director, or employee of the Company or any of its Subsidiaries;
(vii) any employee
collective bargaining agreement or other Contract with any labor union;
(viii) any Contract providing for indemnification or any guaranty
by the Company or any Subsidiary thereof, in each case that is material to the Company and its Subsidiaries, taken as a whole, other than (a) any guaranty by the Company or a Subsidiary thereof of any of the obligations of the Company or
another wholly-owned Subsidiary thereof, or (b) any Contract providing for indemnification of customers or other Persons pursuant to Contracts entered into in the ordinary course of business;
(ix) any Contract that contains any provision that requires the purchase of all of the Companys or any of its Subsidiaries
requirements for a given product or service from a given third party, which product or service is material to the Company and its Subsidiaries, taken as a whole;
(x) any Contract that obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis with any
third party or upon consummation of the Merger will obligate Parent, the Surviving Corporation or any of their respective Subsidiaries to conduct business on an exclusive or preferential basis with any third party;
(xi) any Contract the performance of which will involve consideration in excess of $100,000 in the aggregate;
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(xii) any Company IP Agreement;
(xiii) any Contract that relates to any interest in any real property, mining claim, mineral interest, or operating business, including any
(A) Property Agreements and any environmental claim or remediation obligation relating thereto and (B) any Contract with any mining consultants, including SRK Consulting with respect to the Troy Mine or the Rock Creek Project;
(xiv) any Contracts, including the Property Agreements, that provide for any royalty, participation, net smelter receipt, earn-in right, or
similar arrangement; or
(xv) any Contract that is not otherwise described in clauses (i)-(xiv) above that is material to the Company
and its Subsidiaries, taken as a whole.
Each Contract of the type described in this Section 4.10.1 is referred to herein as a
Company Contract. The Company has made available to Parent true, correct, and complete copies of all Company Contracts, including any amendments thereto.
Section 4.10.2 Binding Obligations. (i) All the Company Contracts are valid and binding on the Company or its applicable
Subsidiary and, to the Knowledge of the Company, the other party thereto, enforceable against it in accordance with its terms, and are in full force and effect, (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the
Company, any third party has violated any provision of, or failed to perform any obligation required under the provisions of, any Company Contract, and (iii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company,
any third party is in breach, or has received written notice of breach, of any Company Contract.
Section 4.11
Litigation. (i) There are no Legal Actions pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries or any of their respective properties or assets or, to the Knowledge of the Company, any
executive officer or director of the Company or any of its Subsidiaries in their capacities as such, (ii) neither the Company nor any of its Subsidiaries is subject to any outstanding Order, and (iii) all Legal Actions pending and, to the
Knowledge of the Company, threatened to which the Company or any of its Subsidiaries is a party or any of their respective properties or assets is subject or, to the Knowledge of the Company, to which any executive officer or director of the Company
or any of its Subsidiaries is a party in their capacities as such, and any Order to which the Company or any of its Subsidiaries is subject and are disclosed in Section 4.11 of the Company Disclosure Schedule, except, in each case, that
would not reasonably be expected to have, individually or in the aggregate, a material adverse impact on the Company and its Subsidiaries. There are no SEC or Canadian securities regulatory authority inquiries or investigations, other governmental
inquiries or investigations or internal investigations pending or, to the Knowledge of the Company, threatened, in each case regarding any accounting practices of the Company or any of its Subsidiaries or any malfeasance by any executive officer of
the Company.
Section 4.12 Environmental Matters. The Company and its Subsidiaries are, and have been, in material
compliance with all applicable Laws relating to the protection of the environment or to occupational health and safety (Environmental Laws), which compliance
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includes the possession, maintenance of, compliance with, or application for, all Permits required under applicable Environmental Laws for the operation of the business of the Company and its
Subsidiaries as currently conducted, and to lease, own, use and operate its properties (including the Company Properties) and assets. There has been no release of any waste, material or substance defined as a hazardous substance,
hazardous material, or hazardous waste under any applicable Environmental Law into the environment as a result of the operations or activities of the Company or its Subsidiaries at any of the Company Properties or, to the
Knowledge of the Company, any properties formerly owned or operated by the Company or its Subsidiaries, in each case that would reasonably be expected to result in any liability to the Company or any of its Subsidiaries under any Environmental Law.
Neither the Company nor any of its Subsidiaries has received written notice of and there is no Legal Action pending, or to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, alleging any Liability or
responsibility under or non-compliance with any Environmental Law or seeking to impose any financial responsibility for any investigation, cleanup, removal, containment or any other remediation or compliance under any Environmental Law. Neither the
Company nor any of its Subsidiaries is subject to any Order or written agreement by or with any Governmental Entity or third party imposing any material Liability or obligation with respect to any of the foregoing.
Section 4.13 Intellectual Property. Section 4.13 of the Company Disclosure Schedule sets forth a true, correct,
and complete list of all Intellectual Property owned by the Company or any of its Subsidiaries. The Company or one of its Subsidiaries owns (free and clear of any Liens), or possesses valid rights to use, all Intellectual Property necessary to
conduct the business of the Company as it is currently conducted or is currently contemplated, and to lease, own, use and operate its properties (including the Company Properties) and assets. To the Companys Knowledge, no Third Party is
currently infringing or misappropriating any material Intellectual Property owned by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has infringed or misappropriated any Intellectual Property of any Third
Party or received any material written claim of infringement or misappropriation of any Intellectual Property of any Third Party.
Section 4.14 Taxes.
Section 4.14.1 Tax Returns and Payment of Taxes. The Company and each of its Subsidiaries have duly and timely filed or caused to
be filed (taking into account any valid extensions) all material Tax Returns required to be filed by them. Such Tax Returns are true, complete and correct in all material respects. Neither the Company nor any of its Subsidiaries is currently the
beneficiary of any extension of time within which to file any Tax Return other than extensions of time to file Tax Returns obtained in the ordinary course of business consistent with past practice. All material Taxes due and owing by the Company or
any of its Subsidiaries (whether or not shown on any Tax Return) have been timely paid or, where payment is not yet due, the Company has made an adequate provision for such Taxes in the Companys financial statements (in accordance with GAAP).
The Companys most recent financial statements reflect an adequate reserve (in accordance with GAAP) for all material Taxes payable by the Company and its Subsidiaries through the date of such financial statements. Neither the Company nor any
of its Subsidiaries has incurred any material liability for Taxes since the date of the Companys most recent financial statements outside the ordinary course of business or otherwise inconsistent with past practice.
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Section 4.14.2 Availability of Tax Returns. The Company has made available to Parent
true, correct, and complete copies of all federal, state, local and foreign income, franchise and other material Tax Returns filed by or on behalf of the Company or its Subsidiaries for any Tax period ending after January 1, 2010.
Section 4.14.3 Withholding. The Company and each of its Subsidiaries have withheld and paid each material Tax required to have
been withheld and paid in connection with amounts paid or owing to any Company Employee, independent contractor, creditor, customer, shareholder or other party, and materially complied with all information reporting and backup withholding provisions
of applicable Law.
Section 4.14.4 Liens. There are no Liens for material Taxes upon the assets of the Company or any of its
Subsidiaries other than for current Taxes not yet due and payable or for Taxes that are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been made in the Companys financial
statements.
Section 4.14.5 Tax Deficiencies and Audits. No deficiency for any material amount of Taxes which has been
proposed, asserted or assessed in writing by any taxing authority against the Company or any of its Subsidiaries remains unpaid. There are no waivers or extensions of any statute of limitations currently in effect with respect to Taxes of the
Company or any of its Subsidiaries. There are no audits, suits, proceedings, investigations, claims, examinations or other administrative or judicial proceedings ongoing or pending with respect to any material Taxes of the Company or any of its
Subsidiaries.
Section 4.14.6 Tax Jurisdictions. No claim has ever been made in writing by any taxing authority in a
jurisdiction where the Company and its Subsidiaries do not file Tax Returns that the Company or any of its Subsidiaries is or may be subject to Tax in that jurisdiction.
Section 4.14.7 Consolidated Groups, Transferee Liability and Tax Agreements. Neither the Company nor any of its Subsidiaries
(i) has been a member of a group filing Tax Returns on a consolidated, combined, unitary or similar basis, (ii) has any material liability for Taxes of any Person (other than the Company or any of its Subsidiaries) under Treasury
Regulation Section 1.1502-6 (or any comparable provision of local, state or foreign Law), as a transferee or successor, by Contract, or otherwise, or (iii) is a party to, bound by or has any material Liability under any Tax sharing,
allocation or indemnification agreement or arrangement.
Section 4.14.8 Change in Accounting Method. Neither the Company nor
any of its Subsidiaries has agreed to make, nor is it required to make, any adjustment under Sections 481(a) of the Code or any comparable provision of state, local or foreign Tax Laws by reason of a change in accounting method or otherwise.
Section 4.14.9 Post-Closing Tax Items. The Company and its Subsidiaries will not be required to include any material item of
income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) closing agreement as described in Section 7121 of the
Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date, (ii) installment sale or open transaction disposition made on or prior to the Closing Date, or
(iii) prepaid amount received on or prior to the Closing Date.
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Section 4.14.10 Ownership Changes. Without regard to this Agreement, neither the
Company nor any of its Subsidiaries has undergone an ownership change within the meaning of Section 382 of the Code.
Section 4.14.11 Publicly Traded Status. All of the outstanding shares of Company Stock are currently regularly traded on the NYSE
MKT within the meaning of Treasury Regulation Section 1.1445-2(c)(2), including any shares issued in a private placement.
Section 4.14.12 Section 355. Neither the Company nor any of its Subsidiaries has been a distributing corporation
or a controlled corporation in connection with a distribution described in Section 355 of the Code.
Section 4.14.13 Reportable Transactions. Neither the Company nor any of its Subsidiaries has been a party to, or a promoter of, a
reportable transaction within the meaning of Section 6707A(c)(1) of the Code and Treasury Regulations Section 1.6011-4(b).
Section 4.14.14 Section 280G or Section 162(m) Payments. There is no Contract covering any individual or entity treated
as an individual that, individually or collectively, could give rise to the payment by the Company, Merger Sub or Parent of any material amount that would not be deductible by reason of Sections 280G or 162(m) of the Code.
Section 4.15 Real Estate and Personal Property.
Section 4.15.1 Real Estate. Section 4.15 of the Company Disclosure Schedule sets forth a true, correct, and complete
list of all of the real property owned or leased by the Company and its Subsidiaries, and all of their patented and unpatented mining claims. The Company or one or more of its Subsidiaries has good and marketable fee simple title to all of its owned
real property disclosed in Section 4.15 of the Company Disclosure Schedule (the Company Owned Properties), and the Company and each of its Subsidiaries has a valid and subsisting leasehold estate in all of its leased
real property disclosed in Section 4.15 of the Company Disclosure Schedule (the Company Leased Premises, and together with the Company Owned Properties, the Company Properties), in each case free and
clear of all Liens other than Permitted Liens. Neither the Company nor any of its Subsidiaries (i) currently lease all or any part of the Company Owned Properties or (ii) has received written notice of any pending, and to the Knowledge of
the Company there is no threatened, condemnation proceeding with respect to any of the Company Owned Properties. With respect to the Company Leased Premises, (a) all leases under which the Company or one of its Subsidiaries leases any Company
Leased Premises (the Real Property Leases) are valid and in full force and effect and constitute binding obligations of the Company or one of its Subsidiaries and the counterparties thereto, in accordance with their respective
terms, (b) there is not any existing default by the Company or any of its Subsidiaries under any of the Real Property Leases that would give the lessor under such Real Property Lease the right to terminate such Real Property Lease or amend or
modify such Real Property Lease in a manner adverse to the Company, and (c) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any third party, has violated any
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provision of, or committed or failed to perform any act which, with or without notice, lapse of time or both would constitute a default under the provisions of, any Real Property Lease. Neither
the Company nor any of its Subsidiaries has assigned, pledged, mortgaged, hypothecated or otherwise transferred any Real Property Lease nor has the Company or any of its Subsidiaries entered into with any other Person (other than another
wholly-owned Subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of the Company Leased Premises.
True, correct, and complete copies of all Real Property Leases, and, with respect to the Company Owned Properties, true, correct, and complete copies of all deeds, title insurance policies, and surveys have been delivered or otherwise made available
to Parent by the Company.
Section 4.15.2 Personal Property. The Company and each of its Subsidiaries has good title to, or a
valid and binding leasehold interest in, all the personal property owned by it, free and clear of all Liens other than Permitted Liens, and such property includes the computers, servers, hard drives, thumb drives, DVDs/CDs or other media that
contain Intellectual Property or other information relating to the Troy Mine or Rock Creek Project and is sufficient for the Company and its Subsidiaries to conduct their business, including the Rock Creek Project, as presently conducted and will be
sufficient for Parent to conduct the business of the Company and its Subsidiaries, including the Rock Creek Project, after Closing. Rock Creek Project means the proposed development by the Company and its Subsidiaries of Rock
Creek located in Sanders County, Montana.
Section 4.16 Mineral Properties and Mineral Rights.
Section 4.16.1 Mineral Properties. Schedule 4.16.1 sets forth a true, correct, and complete list of all patented and
unpatented mining claims and real estate interests and the land associated therewith (the Mineral Properties) held by the Company or any of its Subsidiaries and identifies which entity holds each such mining claim or real estate
interest.
Section 4.16.2 Mineral Properties and Mineral Rights. With respect to the Mineral Properties and Mineral Rights:
(i) the Company or one of its Subsidiaries is in exclusive possession or control of the right to develop the minerals that are locatable
under the Mining Law of 1872, as amended, located in, on or under such Mineral Properties and Mineral Rights;
(ii) the unpatented mining
claims were properly laid out, monumented and the monuments of location for the mining claims are on Federal public land open for mineral claim staking;
(iii) all required location work was properly performed;
(iv) location notices, certificates and mining claim maps were properly recorded and filed with all appropriate Governmental Entities;
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(v) all assessment work has been performed, or fee payments in lieu thereof made, as required to
hold the unpatented mining claims through the assessment year ending August 31, 2015;
(vi) all affidavits of assessment work and
other filings required to maintain the claims in good standing have been properly and timely recorded or filed with appropriate Governmental Entities;
(vii) the Company or one of its Subsidiaries has all surface and access rights, including as applicable fee simple estates, leases, easements,
rights of way and permits, or licenses from landowners or Governmental Entities, permitting the use of land by the Company or its Subsidiaries, and other interests that are required for the current state of exploiting the development potential of
the Mineral Properties and the Mineral Rights and no third party or group holds any such rights that would be required to conduct mineral exploration and drilling activities on any of the Mineral Properties;
(viii) there are no conflicting claims;
(ix) there are no outstanding payment obligations due pursuant to the Property Agreements, and any and all payment obligations have been
satisfied as of the date hereof;
(x) there are no existing mineral production royalties or other payments of any kind which are payable
with respect to the Mineral Properties, Mineral Rights, or any ores, minerals and mineral resources or anything else of value that may be mined and produced from the Mineral Properties;
(xi) Neither the Company nor any of its Subsidiaries is party to any, and to the Knowledge of the Company, there is no, existing oral or
written agreement of any kind which does or could have any adverse impact whatsoever on record or possessory title to the mineral estate of the Mineral Properties, the Mineral Rights, or the access to, exploration, development or mining of same;
(xii) there are no existing restrictions which would have any adverse effect on the right to explore, develop and mine mineral substances
from the Mineral Properties; and
(xiii) there are no options, back-in rights, earn-in rights, rights of first refusal or similar
provisions or rights which could affect Parent or the Surviving Corporations interest in the Mineral Properties or Mineral Rights after the Closing. There are no restrictions on the ability of the Company or its Subsidiaries to use, transfer
or exploit the Mineral Properties or Mineral Rights, except pursuant to applicable Law.
Section 4.16.3 Encumbrances. The
Mineral Properties and Mineral Rights are free and clear of all defects, liens and encumbrances and include all mineral concessions, claims, leases, licenses, permits, access rights, water rights, and other rights and interest necessary to explore
for minerals, ores, or metals without any Liability to pay any commission, royalty, license fee, net smelter return, or any similar payment to any Person and to use, transfer, or exploit the Mineral Properties pursuant to applicable Law, except for
Permits from Governmental Entities to develop, mine or produce minerals, ores or metals from the Mineral Properties.
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Section 4.16.4 Information. The Company has made available to Parent all information
and data pertaining to the Mineral Properties and Mineral Rights in its possession or knowledge, including plans of operation; notices of intent; Permits, including those related to exploration drilling, pad and road construction; mining
exploration; land and survey records; the existence of minerals within the Mineral Properties, including relevant reserve and resource estimates; metallurgical testwork and sampling data; drill data and assay results; the Property Agreements; any
reclamation and bond release information; and all information concerning record, possessory, legal or equitable title to the Mineral Properties and Mineral Rights which is within its knowledge, possession or control.
Section 4.16.5 Mineral Reserves. The estimated proven and probable mineral reserves and estimated indicated, measured and inferred
mineral resources publicly disclosed by the Company have been prepared and disclosed in all material respects in accordance with accepted mining, engineering, geoscience and other approved industry practices, and all applicable Laws. The information
provided by the Company to the qualified persons (as defined in Canadian National Instrument 43-101 Standards of Disclosure for Mineral Projects) in connection with the preparation of such estimates was complete and
accurate at the time such information was furnished. There has been no material reduction in the aggregate amount of estimated mineral reserves or estimated mineral resources of the Company from the amounts so disclosed.
Section 4.17 Proxy Statement; S-4. The Proxy Statement shall not at the time of the mailing of the Proxy Statement to the
holders of Company Stock, at the time of the Company Shareholders Meeting, or at the time of any amendments thereof or supplements thereto, contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that no representation is made by the Company with respect to information supplied by or
related to, or the sufficiency of disclosures related to, Parent, Merger Sub or any Parent Representative. The Proxy Statement shall comply as to form in all material respects with the requirements of the Exchange Act. None of the information
supplied or to be supplied by the Company for inclusion or incorporation by reference in the S-4 will, at the time the S-4 is filed with the SEC, at any time it is amended or supplemented, or at the time it becomes effective under the Securities
Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
Section 4.18 Brokers. No broker, finder, financial advisor, investment banker or other Person is entitled to any
brokerage, finders, financial advisors or other similar fee or commission in connection with the Merger based upon arrangements made by or on behalf of the Company.
Section 4.19 Takeover Statutes. No fair price, moratorium, control share acquisition,
business combination or other similar anti-takeover statute or regulation
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(including Section 203 of the DGCL) enacted under any federal, state, local or foreign laws applicable to the Company is applicable to this Agreement, the Merger or any of the other
transactions contemplated by this Agreement. The Company Board has taken all actions so that the restrictions contained in Section 203 of the DGCL applicable to a business combination (as defined in such Section 203) will not
apply to the execution, delivery or performance of this Agreement and the consummation of the Merger and the other transactions contemplated hereby.
Section 4.20 Fairness Opinion. The Company has received the opinion of an independent financial advisor (and, if it is in
writing, has provided a copy of such opinion to Parent) to the effect that, as of the date of this Agreement and based upon and subject to the qualifications and assumptions set forth therein, the Merger Consideration is fair, from a financial point
of view, to the holders of shares of Company Stock, and, as of the date of this Agreement, such opinion has not been withdrawn, revoked or modified.
Section 4.21 Access to Information; Disclaimer. The Company acknowledges and agrees that it (a) has had an opportunity
to discuss the business of Parent with the management of Parent, (b) has had reasonable access to the books and records of Parent for purposes of the transactions contemplated by this Agreement, (c) has been afforded the opportunity to ask
questions of and receive answers from the management of Parent, and (d) has conducted its own independent investigation of Parent, its businesses and the Merger and the other transactions contemplated hereby, and the Company has not relied on
any representation, warranty or other statement by any Person on behalf of Parent or Merger Sub, other than the representations and warranties of Parent and Merger Sub expressly contained in Article 5.
Section 4.22 Insurance. Section 4.22 of the Company Disclosure Schedules sets forth a true and complete list of all
current policies or binders of reclamation, fire, liability, product liability, umbrella liability, real and personal property, workers compensation, vehicular, directors and officers liability, fiduciary liability and other casualty and
property insurance maintained by Company and its Subsidiaries and relating to the assets, business, operations, employees, officers and directors of the Company (collectively, the Insurance Policies) and true and complete copies
of such Insurance Policies have been made available to Parent. The Insurance Policies are in full force and effect and shall remain in full force and effect following the consummation of the transactions contemplated by this Agreement. Neither the
Company nor any of its Subsidiaries has received any written notice of cancellation of, premium increase with respect to, or alteration of coverage under, any of such Insurance Policies. All premiums due on such Insurance Policies have either been
paid or, if due and payable prior to Closing, will be paid prior to Closing in accordance with the payment terms of each Insurance Policy. The Insurance Policies do not provide for any retrospective premium adjustment or other experience-based
liability on the part of the Company. All such Insurance Policies (a) are valid and binding in accordance with their terms; (b) are provided by carriers who are financially solvent; and (c) have not been subject to any lapse in
coverage. There are no claims related to the business of the Company or its Subsidiaries pending under any such Insurance Policies as to which coverage has been questioned, denied or disputed or in respect of which there is an outstanding
reservation of rights. Neither the Company nor any of its Subsidiaries is in default under, and has not otherwise failed to comply with, in any material respect, any provision contained in any such Insurance Policy. The Insurance Policies are of the
type and in the amounts customarily carried by Persons conducting a business similar to the Company and are sufficient for compliance with all applicable Laws and Contracts to which the Company or one of its Subsidiaries is a party or by which it is
bound.
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Section 4.23 Representations. The representations and warranties of the
Company contained in this Agreement (including the Company Disclosure Schedule and all other certificates and instruments delivered pursuant to this Agreement), are true and correct, and do not omit to state any fact necessary in order to make any
statement contained therein not false or misleading.
Article 5
Representations and Warranties of Parent and Merger Sub
Parent and Merger Sub each represent and warrant to the Company as follows:
Section 5.1 Organization and Qualification; Charter Documents.
Section 5.1.1 Organization and Qualification. Each of Parent and Merger Sub is a corporation duly organized, validly existing and
in good standing under the Laws of Delaware, and has the requisite corporate power and authority to own, lease and operate its assets and to carry on its business as now conducted. Each of Parent and Merger Sub is duly qualified or licensed to do
business as a foreign corporation and is in good standing in each jurisdiction where the character of the assets and properties owned, leased or operated by it or the nature of its business makes such qualification or license necessary, except where
the failure to be so qualified or licensed or to be in good standing, would not reasonably be expected to have, individually or in the aggregate, a material adverse impact on Parent and Merger Sub.
Section 5.1.2 Charter Documents. Parent has delivered or made available to the Company a true and correct copy of the Charter
Documents of Parent and Merger Sub. Neither Parent nor Merger Sub is in violation of any of the provisions of its Charter Documents.
Section 5.1.3 Reporting Status. Parent is and has been a reporting issuer and not on the list of reporting issuers in
default under Canadian Securities Laws for at least the four months preceding the date of this Agreement.
Section 5.2
Capitalization. The entire authorized capital stock of Parent consists of 500,000,000 shares of Parent Common Stock and 5,000,000 shares of preferred stock, par value $0.25 per share (Parent Preferred Stock). As of the
Capitalization Date, 372,426,357 shares of Parent Common Stock are issued and outstanding, 2,435,725 shares of Parent Common Stock are held in treasury, 157,816 shares of Parent Preferred Stock are issued and outstanding, and no shares of Parent
Preferred Stock are held in treasury. As of the Capitalization Date, an aggregate of up to 244,342 shares of Parent Common Stock were issuable upon the exercise of Parent Stock Options and there are 14,503,579 shares available for future grant under
the Parent Stock Option Plans. There are no securities of Parent or of any of its Subsidiaries outstanding which have the right to vote generally (or are convertible into or exchangeable for securities having the right to vote generally) with the
holders of the outstanding Parent Common Stock on any matters. There are no outstanding contractual or other obligations of Parent or any of its
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Subsidiaries to repurchase, redeem or otherwise acquire any of its securities or with respect to the voting or disposition of any outstanding securities of any of its subsidiaries. There are no
outstanding bonds, debentures or other evidences of indebtedness of Parent or any in its subsidiaries having the right to vote with the holders of the outstanding Parent Common Stock on any matters.
Section 5.3 Authority. Each of Parent and Merger Sub has all requisite corporate power and authority to enter into and to
perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Parent and Merger Sub and the consummation by Parent and Merger Sub of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part of Parent and Merger Sub and no other corporate proceedings on the part of Parent or Merger Sub are necessary to authorize the execution and delivery of this Agreement or
to consummate the Merger and the other transactions contemplated hereby, subject only to the filing of the Certificate of Merger pursuant to the DGCL. This Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due
execution and delivery by the Company, constitutes the valid and binding obligation of Parent and Merger Sub, enforceable against Parent and Merger Sub in accordance with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium and other similar Laws affecting creditors rights generally and by general principles of equity.
Section 5.4 No Conflict; Required Filings and Consents.
Section 5.4.1 No Conflict. The execution, delivery and performance of this Agreement by Parent and Merger Sub, and the
consummation by Parent and Merger Sub of the transactions contemplated by this Agreement, do not and will not: (i) contravene or conflict with, or result in any violation or breach of, the Charter Documents of Parent or Merger Sub;
(ii) subject to compliance with the requirements set forth in clauses (i)-(iv) of Section 5.4.2, conflict with or violate any Law applicable to Parent or Merger Sub or any of their respective properties or assets;
(iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation, or require any
consent or approval under any Contract to which either Parent or Merger Sub is a party or otherwise bound; or (iv) result in the creation of any Lien on any of the properties or assets of Parent or Merger Sub other than Permitted Liens, except,
in the case of each of clauses (ii), (iii) and (iv), for any conflicts, violations, breaches, defaults, terminations, amendments, accelerations, cancellations or Liens, or where the failure to obtain any consents or approval, in each case,
would not reasonably be expected to have, individually or in the aggregate, a material adverse impact on Parents and Merger Subs ability to consummate the transactions contemplated by this Agreement.
Section 5.4.2 Consents. The execution, delivery and performance of this Agreement by each of Parent and Merger Sub do not, and the
consummation of the transactions contemplated hereby will not, require either Parent or Merger Sub to obtain any consent, approval or authorization of, or make any filing with or notification to, any Governmental Entity, except for: (i) the
filing of the Certificate of Merger with the Secretary of State of the State of Delaware and appropriate documents with the relevant authorities of other states in which the Company and/or Parent are qualified to do business; (ii) the filing of
the Proxy Statement and the
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S-4 with the SEC in accordance with the Securities Act, and such reports under the Exchange Act as may be required in connection with this Agreement, the Merger and the other transactions
contemplated by this Agreement; (iii) as may be required under applicable state securities or blue sky laws and the securities Laws of any foreign country or the rules and regulations of the NYSE; and (iv) where the failure to
obtain such consents, approvals or authorizations, or to make such filings or notifications would not, individually or in the aggregate, reasonably be expected to have a material adverse impact on Parents and Merger Subs ability to
consummate the transactions contemplated by this Agreement.
Section 5.5 Orders. No Order has been entered or issued
which restrains, enjoins or prohibits the ability of either Parent or Merger Sub to consummate the Merger or any of the other transactions provided for herein.
Section 5.6 Ownership of Merger Sub. Parent owns 100% of the issued and outstanding Equity Interests of Merger Sub.
Section 5.7 Vote Required. No vote of the holders of any class or series of capital stock or other Equity Interests of
Parent or Merger Sub, as the case may be, is necessary to approve or adopt this Agreement or the transactions contemplated hereby, other than the vote of Parent as the sole stockholder of Merger Sub, which has been received as of the date of this
Agreement.
Section 5.8 Brokers. No broker, finder, financial advisor, investment banker or other Person is entitled to
any brokerage, finders, financial advisors or other similar fee or commission payable by the Company in connection with the Merger based upon arrangements made by or on behalf of Parent or Merger Sub, as the case may be.
Section 5.9 Proxy Statement. None of the information supplied or to be supplied by Parent or Merger Sub, as the case may
be, for inclusion or incorporation by reference in the Proxy Statement shall, at the time of the mailing of the Proxy Statement to holders of Company Stock, at the time of the Company Shareholders Meeting, or at the time of any amendments
thereof or supplements thereto, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they
were made, not misleading. The S-4 shall not, at the time the S-4 is filed with the SEC, at any time it is amended or supplemented, or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that no representation is made by Parent or Merger Sub
with respect to information supplied by or related to, or the sufficiency of disclosures related to, the Company, the Companys Subsidiaries, or any Company Representative.
Section 5.10 Securities Filings; Financial Statements.
Section 5.10.1 Parent Securities Filings. Parent has timely filed or furnished, as applicable, all reports, prospectuses,
schedules, forms, statements or other documents (including exhibits and all other information incorporated by reference) required to be filed or furnished by
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it under the Securities Act, the Exchange Act, or Canadian Securities Laws, as the case may be, since January 1, 2010 (collectively, the Parent Securities Filings). Each
Parent Securities Filing (i) as of its date, complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act, or Canadian Securities Laws, as the case may be, as in effect on the date so
filed, (ii) did not, at the time it was filed (or, if subsequently amended or supplemented, at the time of such amendment or supplement), contain any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and (iii) included, in the case of those which contain annual financial statements, annual
financial statements that have been audited by an independent certified public accounting firm. Parent has made available to the Company all such Parent Securities Filings that it has so filed or furnished prior to the date hereof.
Section 5.10.2 Financial Statements. Each of the consolidated financial statements (including, in each case, any notes
thereto) contained in the Parent Securities Filings (i) complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto as of their respective dates; (ii) was prepared in
accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto and, in the case of unaudited interim financial statements, as may be permitted by the SEC for Quarterly Reports on
Form 10-Q); and (iii) fairly presented in all material respects the consolidated financial position of Parent and its consolidated Subsidiaries at the respective dates thereof and the consolidated results of the Companys operations and
cash flows for the periods indicated therein, subject, in the case of unaudited interim financial statements, to normal and year-end audit adjustments as permitted by GAAP and the applicable rules and regulations of the SEC.
Article 6
Covenants
Section 6.1 Conduct of Business Pending the Closing.
Section 6.1.1 Conduct of Business of the Company. The Company shall, and shall cause each of its Subsidiaries to, during the
period from the date of this Agreement until the Effective Time, except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of Parent, conduct its business in the ordinary course of business
consistent with past practice, and, to the extent consistent therewith, the Company shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve substantially intact its and its Subsidiaries business
organization, to keep available the services of its and its Subsidiaries current officers and employees, to preserve its and its Subsidiaries present relationships with customers, suppliers, distributors, licensors, licensees and other
Persons having business relationships with it. Without limiting the generality of the foregoing, between the date of this Agreement and the Effective Time, except as required by applicable Law, the Company shall not, nor shall it permit any of its
Subsidiaries to, without the prior written consent of Parent:
(i) amend or propose to amend its certificate of incorporation or by-laws
(or other comparable organizational documents);
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(ii) issue, deliver, sell, pledge or encumber, or authorize, propose or agree to the issuance,
delivery, sale, pledge or encumbrance of, any shares of the capital stock of the Company or any of its Subsidiaries (other than shares of the capital stock of the Company pursuant to the terms of any outstanding Company Stock Options), or securities
convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of the capital stock of the Company or any of its Subsidiaries;
(iii) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof)
with respect to, or enter into any Contract with respect to the voting of, any of its capital stock;
(iv) reclassify, combine, split,
subdivide or redeem, repurchase or otherwise acquire, directly or indirectly, any Company Securities;
(v) acquire (including by merger,
consolidation, or acquisition of stock or assets) or make any investment in any Equity Interest in any Person or any assets, loans or debt securities thereof, acquire or divest any Real Property Leases or other interest in real estate or enter into
or amend or modify any material Contract, partnership, arrangement, joint development agreement or strategic alliance;
(vi) repurchase,
prepay or incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Company or any of its
Subsidiaries, guarantee any debt securities of another Person, enter into any keep well or other Contract to maintain any financial statement condition of any other Person (other than any wholly-owned Subsidiary of it) or enter into any
arrangement having the economic effect of any of the foregoing;
(vii) grant any Lien in any of its material assets to secure any
indebtedness for borrowed money;
(viii) enter into any new line of business outside of its existing business;
(ix) pay, discharge, settle or satisfy any Liabilities, other than (i) performance of contractual obligations in accordance with their
terms, or (ii) payment, discharge, settlement or satisfaction in accordance with their terms, of Liabilities that have been (a) disclosed in the most recent Company Financial Statements (or the notes thereto) included in the Company
Securities Filings filed prior to the date hereof or contemplated by documents made available to Parent prior to the date hereof or (b) incurred since the date of such financial statements in the ordinary course of business consistent with past
practice;
(x) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger);
(xi) institute, settle or
compromise any Legal Actions pending or threatened before any arbitrator, court or other Governmental Entity, other than (i) any Legal Action brought against Parent or Merger Sub arising out of a breach or alleged breach of this Agreement
39
by Parent or Merger Sub, and (ii) the settlement of claims, liabilities or obligations reserved against on the most recent balance sheet of the Company included in the Company Securities
Filings, in amounts not to exceed those so reserved; provided that neither the Company nor any of its Subsidiaries shall settle or agree to settle any Legal Action which settlement involves a conduct remedy or injunctive or similar relief or
has a restrictive impact on the Companys business;
(xii) transfer, license, sell, lease or otherwise dispose of any material assets
(whether by way of merger, consolidation, sale of stock or assets, or otherwise), including the capital stock or other equity interests in any Subsidiary of the Company, provided that the foregoing shall not prohibit the Company and its
Subsidiaries from transferring, licensing, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice;
(xiii) except as required by applicable Tax Law, make or change any material election in respect of Taxes, adopt or change in any material
respect any accounting method in respect of Taxes, file any material Tax Return or any amendment to a material Tax Return, enter into any closing agreement, settle any claim or assessment in respect of Taxes (except settlements effected solely
through payment of immaterial sums of money), or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(xiv) make any material change in any method of financial accounting principles or practices, in each case except for any such change required
by a change in GAAP or applicable Law;
(xv) except as required by applicable Law or by any Company Employee Plan or Contract in effect as
of the date of this Agreement, (i) increase the compensation payable or that could become payable by the Company or any of its Subsidiaries to directors, officers or employees, (ii) enter into any new, or amend in any material respect any
existing, employment, severance, retention or change in control agreement with any of its past or present officers or employees, (iii) promote any officers or employees, except as the result of the termination or resignation of any officer or
employee, or (iv) establish, adopt, enter into, amend, terminate, exercise any discretion under, or take any action to accelerate rights under any Company Employee Plans or any plan, agreement, program, policy, trust, fund or other arrangement
that would be a Company Employee Plan if it were in existence as of the date of this Agreement, or make any contribution to any Company Employee Plan, other than contributions required by Law, the terms of such Company Employee Plans as in effect on
the date hereof or that are made in the ordinary course of business consistent with past practice;
(xvi) except in connection with
actions permitted by Section 6.4 hereof, take any action to exempt any Person from, or make any acquisition of securities of the Company by any Person not subject to, any state takeover statute or similar statute or regulation that
applies to the Company with respect to a Takeover Proposal or otherwise, including the restrictions on business combinations set forth in Section 203 of the DGCL, except for Parent, Merger Sub or any of their respective Subsidiaries
or Affiliates, or the transactions contemplated by this Agreement; or
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(xvii) commit or agree to take any of the actions described in
Sections 6.1.1(i) through 6.1.1(xvi) above or any action which would reasonably be expected to result in any of the conditions to the Merger set forth in Article 7 not being satisfied.
Section 6.1.2 Other Actions. From the date of this Agreement until the earlier to occur of the Effective Time or the termination
of this Agreement in accordance with the terms set forth in Article 7, the Company and Parent shall not, and shall not permit any of their respective Subsidiaries to, take, or agree or commit to take, any action that would reasonably be
expected to, individually or in the aggregate, prevent, materially delay or materially impede the consummation of the Merger or the other transactions contemplated by this Agreement.
Section 6.1.3 No Control of Other Partys Business. Nothing contained in this Agreement shall give Parent or Merger Sub,
directly or indirectly, the right to control or direct the Companys operations prior to the Effective Time, and nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parents or
Merger Subs operations prior to the Effective Time. Prior to the Effective Time, each of the Company, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete and independent control and
supervision over its and its Subsidiaries respective operations.
Section 6.2 Proxy Statement and S-4 Registration
Statement; Company Shareholders Meeting.
Section 6.2.1 Proxy Statement and S-4 Registration Statement. Subject to
the terms and conditions of this Agreement, as promptly as reasonably practicable after the date hereof, the Company and Parent shall prepare and file with the SEC a proxy statement/prospectus and a form of proxy relating to the Company
Shareholders Meeting (such proxy statement/prospectus, as amended or supplemented from time to time, the Proxy Statement), and Parent shall prepare and file with the SEC a registration statement on Form S-4 (together with
all amendments thereto, the S-4), in which the Proxy Statement shall be included as a prospectus, in connection with the registration under the Securities Act of the shares of Parent Common Stock issuable in connection with the
Merger. Parent and Merger Sub shall furnish all information relating to Parent and Merger Sub as the Company may reasonably request (or as may be required to be included in the Proxy Statement) in connection with such actions and the preparation of
the Proxy Statement. The Company shall furnish all information concerning the Company and the holders of the Company Stock as Parent may reasonably request in connection with such actions and the preparation of the S-4 and the Proxy Statement. Each
of the Company and Parent shall use reasonable best efforts to have the S-4 declared effective under the Securities Act. Subject to the terms and conditions of this Agreement, as promptly as reasonably practicable after the S-4 is declared effective
by the SEC, the Company shall mail the Proxy Statement to the holders of shares of Company Stock. Subject to and without limiting the rights of the Company Board pursuant to Section 6.4.2, the Proxy Statement shall include the Company
Recommendation and the Fairness Opinion. No filing of, or amendment or supplement to, or correspondence to the SEC or its staff will be made by the Company or Parent without providing the other Party a reasonable opportunity to review and comment
thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the S-4 has become effective or any supplement thereto has been filed, the
41
issuance of any stop order, the suspension of the qualification of the shares of Parent Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any
request by the SEC for amendment of the S-4 or comments thereon and responses thereto or requests by the SEC for additional information and will, as promptly as practicable, provide to the Company copies of all correspondence and filings with the
SEC with respect to the S-4 and Proxy Statement. The Company will inform Parent, promptly after it receives notice thereof, of any request by the SEC for the amendment of the Proxy Statement or comments thereon and responses thereto or requests by
the SEC for additional information and will, as promptly as practicable, provide to Parent copies of all correspondence and filings with the SEC with respect to the Proxy Statement. If at any time prior to the Effective Time, any information, event
or circumstance relating to any Party, or their respective Affiliates or Representatives, should be discovered by any Party which should be set forth in an amendment or a supplement to either the Proxy Statement or the S-4 so that the Proxy
Statement or the S-4 does not contain any untrue statement of material fact, or omit to state any material fact required to be stated therein in order to make the statements therein, in light of the circumstances under which they were made, not
misleading, the Party discovering such information, event or circumstance shall promptly inform the other Parties and, to the extent required by Law, an appropriate amendment or supplement describing such information, event or circumstance shall be
promptly prepared and filed with the SEC and, if required, disseminated to the holders of shares of Company Stock. Parent shall also take any action required to be taken under state blue sky or other securities laws in connection with the issuance
of Parent Common Stock in the Merger.
Section 6.2.2 Company Shareholders Meeting. Subject to Section 6.4,
the Company shall take all action necessary to duly call, give notice of, convene and hold a meeting of the holders of Company Stock (the Company Shareholders Meeting) as promptly as reasonably practicable following the date
on which the S-4 is declared effective by the SEC (but taking into account any advance notice or other requirements under applicable Law) for the purpose of obtaining the Shareholder Approval. Subject to Section 6.4.2, the Company shall
use its best efforts to obtain Shareholder Approval and the unanimous vote in favor of the Merger at the Company Shareholders Meeting or any adjournment thereof. Once the Company Shareholders Meeting has been called and noticed, the
Company shall not postpone or adjourn the Company Shareholders Meeting without the consent of Parent (other than (i) in order to obtain a quorum of its stockholders or (ii) as reasonably determined by the Company to comply with
applicable Law).
Section 6.3 Access to Information; Confidentiality.
Section 6.3.1 Access to Information. Subject to Section 6.3.2, from the date of this Agreement to the Effective Time
or the earlier termination of this Agreement pursuant to Section 8.1, the Company shall, shall cause its Subsidiaries to, and shall instruct each of its and its Subsidiaries directors, officers, employees, accountants, consultants, legal
counsel, advisors, and agents and other representatives (collectively, Company Representatives) to: (a) provide to Parent and Merger Sub and each of their respective officers, directors, employees, accountants, consultants,
legal counsel, advisors, agents and other representatives (collectively, Parent Representatives, and, each, together with each of the Company Representatives, a Representative) access at reasonable times and
upon reasonable prior notice to the Company, to the Company Representatives, the properties, offices and other facilities of the Company and
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its Subsidiaries and the books and records thereof, and (b) furnish, or cause to be furnished, such reasonably available information concerning the business, properties, Contracts, assets,
liabilities, personnel and other aspects of the Company as Parent, Merger Sub or the Parent Representatives may reasonably request. Any such access and availability shall include access for Parent Representatives to conduct any environmental site
assessments (including sampling) or inspection in respect of environmental matters at the Company Owned Properties and the Company Leased Premises, physical inspections of the assets of the Company and its Subsidiaries, and contact with the
customers, vendors, suppliers and creditors of the Company and its Subsidiaries, in each case as Purchaser Representatives may reasonably request. No information or knowledge obtained in any investigation pursuant to this Section 6.3.1
shall affect or be deemed to modify any representation or warranty contained in this Agreement or the conditions to the obligations of the Parties to consummate the Merger. Notwithstanding the foregoing, the Company shall not be required to provide
access to or disclose information where such access or disclosure would contravene any Law, binding Contract to which the Company is party or any privacy policy applicable to the Companys customer information.
Section 6.3.2 Confidentiality and Restrictions. With respect to any information (i) disclosed or provided by the Company or
any Company Representative to Parent, Merger Sub or any Parent Representative, and (ii) disclosed or provided by Parent or any Parent Representative to the Company or any Company Representative pursuant to, or in accordance with, this
Agreement, the Parties shall comply with, and shall cause the Parent Representatives and the Company Representatives, respectively, to comply with that certain confidentiality letter agreement, dated as of June 5, 2013, between the Company and
Parent (as such agreement may be amended from time to time, the Confidentiality Agreement). The Confidentiality Agreement shall survive any termination of this Agreement.
Section 6.4 No Solicitation of Transactions.
Section 6.4.1 The Company shall not, and shall cause its Subsidiaries not to, and shall not authorize or permit any Company
Representative to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover
Proposal, or, subject to Section 6.4.2, (i) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business,
properties, assets, books or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Takeover Proposal,
(ii) (a) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (b) approve any transaction under, or any third party
becoming an interested stockholder under, Section 203 of the DGCL, or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture
agreement, partnership agreement or other Contract relating to any Takeover Proposal (each, a Company Acquisition Agreement). Subject to Section 6.4.2, neither the Company Board nor any committee thereof shall fail to
make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the
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Company Recommendation, or recommend a Takeover Proposal, fail to recommend against acceptance of any tender offer or exchange offer for the shares of Company Stock within ten (10) Business
Days after the commencement of such offer, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, a Company Adverse Recommendation
Change). The Company shall, and shall cause its Subsidiaries to, cease immediately and cause to be terminated, and shall not authorize or knowingly permit any Company Representatives to continue, any and all existing activities,
discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and shall cause any such third party (or its agents or advisors) in possession of non-public information in respect of
the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to return or destroy (and confirm destruction of) all such information.
Section 6.4.2 Notwithstanding Section 6.4.1, prior to the receipt of the Shareholder Approval, the Company Board,
directly or indirectly through any Company Representative, may, subject to Section 6.4.3 (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Takeover
Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and an independent financial advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter
furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that contains confidentiality and standstill provisions that are no less favorable to the Company
than those contained in the Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of
a Superior Proposal, make a Company Adverse Recommendation Change, or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses
(i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary
duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to the Companys stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a
Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable Law.
Section 6.4.3 The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of
Section 6.4.2 unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than 24 hours) after it obtains
Knowledge of the receipt by the Company (or any of the Company Representatives) of any Takeover Proposal, any inquiry that would reasonably be expected to lead to a Takeover Proposal, or any request for non-public information relating to the Company
or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party. In such notice, the Company shall identify the third party making, and details of the
material terms and conditions of, any such Takeover Proposal, indication or request. The Company shall
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keep Parent fully informed, on a current basis, of the status and material terms of any such Takeover Proposal, indication or request, including any material amendments or proposed amendments as
to price and other material terms thereof. The Company shall provide Parent with at least 48 hours prior notice of any meeting of the Company Board (or such lesser notice as is provided to the members of the Company Board) at which the Company Board
is reasonably expected to consider any Takeover Proposal. The Company shall promptly (but in no event later than 24 hours) provide Parent with a list of any non-public information concerning the Companys business, present or future
performance, financial condition or results of operations provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such information.
Section 6.4.4 Except as set forth in this Section 6.4.4, the Company Board shall not make any Company Adverse
Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the receipt of the Shareholder Approval, the Company Board may make a Company Adverse
Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least five Business Days (the Notice Period) before
making a Company Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly
that the Company has received a Takeover Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make a Company Adverse Recommendation Change or the Company intends to enter into a Company
Acquisition Agreement; (ii) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal;
(iii) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause the Company Representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms
and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice
Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least three Business Days remains in the Notice Period subsequent to
the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and an independent
financial advisor, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Notice Period in the terms and conditions of this Agreement.
Section 6.5 Reasonable Best Efforts.
Section 6.5.1 General. Upon the terms and subject to the conditions set forth in this Agreement (including those contained in this
Section 6.5.1), each of the Parties shall, and shall cause its Subsidiaries to, use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other
Parties in
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doing, all things necessary, proper or advisable to consummate and make effective, and to satisfy all conditions to, in the most expeditious manner practicable, the transactions contemplated by
this Agreement, including (i) the obtaining of all necessary permits, waivers, consents, approvals and actions or nonactions from Governmental Entities and the making of all necessary registrations and filings (including filings with
Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entities, (ii) the obtaining of all necessary consents or waivers from third
parties, and (iii) the execution and delivery of any additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement. Parent shall take all action necessary to cause Merger Sub to perform its
obligations under this Agreement and to consummate the Merger on the terms and conditions set forth in this Agreement. The Company and Parent shall, subject to applicable Law, promptly (x) cooperate and coordinate with the other in the taking
of the actions contemplated by clauses (i), (ii) and (iii) immediately above and (y) supply the other with any information that may be reasonably required in order to effectuate the taking of such actions. Each Party shall promptly
inform the other Parties, as the case may be, of any communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If the Company or Parent receives a request for additional information or documentary
material from any Governmental Entity with respect to the transactions contemplated by this Agreement, then it shall use reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and after consultation with the other
Party, an appropriate response in compliance with such request, and, if permitted by applicable Law and by any applicable Governmental Entity, provide the other Partys counsel with advance notice and the opportunity to attend and participate
in any meeting with any Governmental Entity in respect of any filing made thereto in connection with the transactions contemplated by this Agreement.
Section 6.5.2 Challenge. In the event that any administrative or judicial action or proceeding is instituted (or threatened to be
instituted) by a Governmental Entity or private party challenging the Merger or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, the Company shall cooperate in all respects with Parent and Merger Sub
and shall use its reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents
or restricts consummation of the transactions contemplated by this Agreement. Notwithstanding anything in this Agreement to the contrary, none of Parent, Merger Sub or any of their Affiliates shall be required to defend, contest or resist any action
or proceeding, whether judicial or administrative, or to take any action to have vacated, lifted, reversed or overturned any Order, in connection with the transactions contemplated by this Agreement.
Section 6.5.3 Exceptions. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any
of their Subsidiaries shall be required to, and the Company may not, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, or otherwise take any action with respect to, any requirement, condition,
limitation, understanding, agreement or order to (i) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the
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Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries, (ii) conduct, restrict, operate, invest or otherwise change the assets, business or portion of business of
the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries in any manner, or (iii) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the
Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries; provided that, if requested by Parent, the Company will become subject to, consent to, or offer or agree to, or otherwise take any action with
respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company in the event the Closing occurs.
Section 6.6 Certain Notices. From and after the date of this Agreement until the earlier of the Effective Time or the
termination of this Agreement pursuant to Section 8.1, the Company shall give prompt written notice to Parent, and Parent shall give prompt written notice to the Company, of (a) any material notice or other material communication
received by such Party from any Governmental Entity in connection with this Agreement, the Merger or the other transactions contemplated hereby or from any Person alleging that the consent of such Person is or may be required in connection with this
Agreement, the Merger or the other transactions contemplated hereby, (b) any material claims, actions, suits, proceedings or investigations commenced or, to such Partys Knowledge, threatened against, relating to or involving or otherwise
affecting such Party or any of its Subsidiaries which relate to this Agreement, the Merger or the other transactions contemplated hereby and (c) any fact, event or circumstance known to such Party that would cause or constitute, or would
reasonably be expected to cause or constitute, a breach in any material respect of such Partys representations, warranties, covenants or agreements contained herein or would prevent, delay or impede, or would reasonably be expected to prevent,
delay or impede, the consummation of the Merger or any other transaction contemplated by this Agreement; provided, however, that the delivery of any notice pursuant to this Section 6.6 shall not limit or otherwise affect
any remedies available to the Party receiving such notice or prevent or cure any misrepresentations, breach of warranty or breach of covenant or failure to satisfy the conditions to the obligations of the Parties under this Agreement.
Section 6.7 Public Announcements. Except as set forth in this Section 6.7, the Parties agree that Parent will
prepare and disseminate any press release or public announcement pertaining to the Merger, and shall in good faith consult with the Company as to the text of any such press release or public announcement, provided that all decisions with respect to
such press releases and public announcements shall ultimately rest with Parent. Except as set forth in the last sentence of this Section 6.7, the Company shall not issue any press release or public statement pertaining to the Merger
without consulting with, and obtaining the consent of Parent, which consent shall not be unreasonably withheld or delayed, except as required to comply with any Law. The Parties will prepare a joint release for the announcement of the execution of
this Agreement. John G. Shanahan and Timothy R. Lindsey, as the representatives of the Company, are authorized to make public statements substantially as follows without the need to consult with or obtain the prior consent of Parent:
|
i. |
In current market conditions, the Company will have difficulty maintaining the Troy Mine on care and maintenance whilst advancing Rock Creek permitting. We owe it to our shareholders and all stakeholders to be
responsible in light of current realities. |
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|
ii. |
The Troy Mine, when operating at higher metal prices, was an important bridge to Rock Creek. Having an experienced regional workforce is critical in developing and operating Rock Creek. Parent is an established and
industry leader in underground mining, they have local experience at Lucky Friday and unique operational experiences at Greens Creek. Both are critical in developing Rock Creek. |
|
iii. |
Rock Creek is a world class deposit. The Company has received excellent support from the communities of northwest Montana, and is it important that this project be permitted and developed to the highest standards.
Parent is a company that can do this. |
Section 6.8 NYSE Listing. Parent agrees to authorize for listing
on the NYSE the shares of Parent Common Stock issuable in connection with the Merger, upon official notice of issuance. Parent shall take all steps reasonably necessary to maintain the listing of the Parent Common Stock on the NYSE.
Section 6.9 Indemnification of Directors and Officers.
Section 6.9.1 Parent and Merger Sub agree that all rights to indemnification, advancement of expenses and exculpation by the
Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer or director of the Company and its Subsidiaries (each an Indemnified
Party) as provided in the Companys Charter Documents, in each case as in effect on the date of this Agreement, or pursuant to any other Contracts in effect on the date hereof and disclosed in Section 6.9 of the Company
Disclosure Schedule, shall be assumed by the Surviving Corporation in the Merger, without further action, at the Effective Time and shall survive the Merger and shall remain in full force and effect in accordance with their terms, and, in the event
that any proceeding is pending or asserted or any claim made during such period, until the final disposition of such proceeding or claim.
Section 6.9.2 For six years after the Effective Time, to the fullest extent permitted under applicable Law, Parent and the
Surviving Corporation shall indemnify, defend and hold harmless each Indemnified Party against all losses, claims, damages, liabilities, fees, expenses, judgments and fines arising in whole or in part out of actions or omissions in their capacity as
such occurring at or prior to the Effective Time (including in connection with the transactions contemplated by this Agreement), and shall reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such losses, claims, damages, liabilities, fees, expenses, judgments and fines as such expenses are incurred, subject to the Surviving Corporations receipt of an undertaking by such Indemnified
Party to repay such legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Party is not entitled to be indemnified under
applicable Law; provided, however, that the Surviving Corporation shall not be liable for any settlement effected without the Surviving Corporations prior written consent.
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Section 6.9.3 The Surviving Corporation shall, and Parent shall cause the Surviving
Corporation to, (i) maintain in effect for a period of six years after the Effective Time, if available, the current policies of directors and officers liability insurance maintained by the Company immediately prior to the Effective
Time (provided that the Surviving Corporation may substitute therefor policies, of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Company and its
Subsidiaries when compared to the insurance maintained by the Company as of the date hereof), or (ii) obtain as of the Effective Time tail insurance policies with a claims period of six years from the Effective Time with at least
the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Company and its Subsidiaries, in each case with respect to claims arising out of or relating to events which
occurred before or at the Effective Time (including in connection with the transactions contemplated by this Agreement); provided, however, that in no event will the Surviving Corporation be required to expend an annual premium for
such coverage in excess of one hundred fifty percent (150%) of the last annual premium paid by the Company for such insurance prior to the date of this Agreement, which amount is set forth on Section 6.9.3 of the Company Disclosure
Schedule (the Maximum Premium). If such insurance coverage cannot be obtained at an annual premium equal to or less than the Maximum Premium, the Surviving Corporation will obtain, and Parent will cause the Surviving Corporation
to obtain, that amount of directors and officers insurance (or tail coverage) obtainable for an annual premium equal to the Maximum Premium.
Section 6.9.4 The obligations of Parent and the Surviving Corporation under this Section 6.9 shall survive the
consummation of the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 6.9 applies without the consent of such affected Indemnified Party (it being expressly
agreed that the Indemnified Parties to whom this Section 6.9 applies shall be third party beneficiaries of this Section 6.9, each of whom may enforce the provisions of this Section 6.9).
Section 6.9.5 In the event Parent, the Surviving Corporation or any of their respective successors or assigns
(i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person,
then, and in either such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 6.9. The
agreements and covenants contained herein shall not be deemed to be exclusive of any other rights to which any Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. Nothing in this Agreement is intended to, shall be
construed to or shall release, waive or impair any rights to directors and officers insurance claims under any policy that is or has been in existence with respect to the Company or its officers, directors and employees, it being
understood and agreed that the indemnification provided for in this Section 6.9 is not prior to, or in substitution for, any such claims under any such policies.
Section 6.10 State Takeover Statutes. If any state takeover statute or similar statute becomes applicable to this Agreement
(including the Merger and the other transactions contemplated hereby), each of Parent, Merger Sub, the Company and their respective Boards of Directors shall take all reasonable action necessary so that such transactions may be
49
consummated as promptly as practicable on the terms contemplated hereby or otherwise act to eliminate or minimize the effect of such statute or regulation on this Agreement or the transactions
contemplated hereby.
Article 7
Closing Conditions
Section 7.1 Conditions to Obligations of Each Party Under This Agreement. The respective obligations of each Party to
effect the Merger and the other transactions contemplated hereby shall be subject to the satisfaction, or waiver, at or prior to the Closing Date, of the following conditions:
Section 7.1.1 Shareholder Approval. The Shareholder Approval shall have been obtained.
Section 7.1.2 No Injunctions or Restraints. No Law or Order issued by any Governmental Entity of competent jurisdiction preventing
the consummation of the Merger or any other transaction contemplated by this Agreement shall be in effect; provided, however, that the right to assert that this condition has not been satisfied shall not be available to any Party who has not used
its reasonable best efforts to prevent, resist, appeal, obtain consent under, resolve or lift, as applicable, such Law or Order or who has not complied in all material respects with its obligations under Section 6.5.
Section 7.1.3 Securities Matters. No stop order suspending the effectiveness of the S-4 or
any part thereof shall have been issued and no proceeding for that purpose, and no similar proceeding in respect of the Proxy Statement, shall have been initiated or threatened in writing by the SEC or any Canadian securities regulatory authority;
and all requests for additional information on the part of the SEC or any Canadian securities regulatory authority shall have been complied with to the reasonable satisfaction of the Parties.
Section 7.1.4 NYSE Listing. The Parent Common Stock issuable to shareholders of the Company pursuant to this Agreement shall have
been authorized for listing on the NYSE upon official notice of issuance.
Section 7.2 Additional Conditions to Obligations
of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger and the other transactions contemplated hereby are also subject to the satisfaction of the following conditions, any one or more of which may be waived in
writing by Parent in accordance with Section 8.5.
Section 7.2.1 Representations and Warranties. (i) The
representations and warranties of the Company set forth in Sections 4.1, 4.2, 4.3, 4.6, 4.8, 4.11, and 4.18 shall have been true and correct in all respects other than de minimis inaccuracies as of
the date of this Agreement, and shall be true and correct in all respects other than de minimis inaccuracies as of the Closing Date as if made at and as of the Closing Date (except for those representations and warranties which address matters only
as of an earlier date which shall have been true and correct as of such earlier date), and (ii) each of the other representations and warranties of the Company set forth in Article 4 shall have been true and correct in all respects as of
the date of this Agreement, and shall be true and correct as of the Closing Date as if made at and as of the
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Closing Date (except for those representations and warranties which address matters only as of an earlier date, which shall have been true and correct as of such earlier date), except for
inaccuracies of representations and warranties the circumstances giving rise to which, individually or in the aggregate, do not constitute and would not reasonably be expected to result in a Company Material Adverse Effect (it being understood that,
for purposes of determining the accuracy of such representations and warranties, all Material Adverse Effect qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded).
Section 7.2.2 Agreements and Covenants. The Company shall have performed or complied in all material respects with all agreements
and covenants required by this Agreement to be performed or complied with by the Company on or prior to the Closing Date.
Section 7.2.3 Company Material Adverse Effect. Since the date of this Agreement, there shall not have been any Company Material
Adverse Effect or any event, change or effect that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
Section 7.2.4 Officers Certificate. Parent shall have received a certificate of an officer of the Company confirming the
satisfaction of the conditions set forth in Sections 7.2.1, 7.2.2, and 7.2.3.
Section 7.2.5 Consents.
All consents, filings, registrations, waivers and notifications necessary to permit the consummation of the transactions contemplated by this Agreement shall have been obtained or made, including all such consents, filings, registrations, waivers
and notifications disclosed (or required to be disclosed) in Section 4.5.2 of the Company Disclosure Schedule.
Section 7.2.6 Troy Mine. The environmental risk transfer program and any other insurance policies in effect as of the date hereof
providing coverage for the Companys or its Subsidiaries reclamation and mine closing Liabilities relating to the Troy Mine shall, as determined by Parent in its sole discretion, be in full force and effect and shall apply to any
reclamation plan relating to the Troy Mine that is implemented or effected after the date hereof, including as result of the 2012 Environmental Impact Statement (including any supplements thereto, whether completed or in progress) and associated
Record of Decision (including any amendments or supplements thereto, whether completed or in progress) issued by the Montana Department of Environmental Quality and the United States Forest Service.
Section 7.2.7 Employment Agreement Amendments. The amendments to the Employment Agreements between the Company and certain of its
employees entered into in January and February 2015 in connection with this Agreement shall remain in full force and effect.
Section 7.3 Additional Conditions to Obligations of the Company. The obligation of the Company to effect the Merger and the
other transactions contemplated hereby are also subject to the satisfaction of the following conditions, any one of which may be waived in writing by the Company in accordance with Section 8.5.
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Section 7.3.1 Representations and Warranties. (i) The representations and
warranties of Parent and Merger Sub set forth in Sections 5.1, 5.2, 5.3, 5.8, and 5.10 shall have been true and correct in all respects other than de minimis inaccuracies as of the date of this Agreement,
and shall be true and correct in all respects other than de minimis inaccuracies as of the Closing Date as if made at and as of the Closing Date (except for those representations and warranties which address matters only as of an earlier date which
shall have been true and correct as of such earlier date), and (ii) each of the other representations and warranties of Parent and Merger Sub set forth in Article 5 shall have been true and correct in all respects as of the date of this
Agreement, and shall be true and correct as of the Closing Date as if made at and as of the Closing Date (except for those representations and warranties which address matters only as of an earlier date, which shall have been true and correct as of
such earlier date), except for inaccuracies of representations and warranties the circumstances giving rise to which, individually or in the aggregate, do not constitute and would not reasonably be expected to have, individually or in the aggregate,
a material adverse effect on Parents and Merger Subs ability to consummate the transactions contemplated by this Agreement (it being understood that, for purposed of determining the accuracy of such representations and warranties, all
materiality qualifications contained in such representations and warranties shall be disregarded).
Section 7.3.2 Agreements and
Covenants. Parent and Merger Sub shall have performed or complied in all material respects with all material agreements and covenants required by this Agreement to be performed or complied with by Parent and/or Merger Sub, as applicable, on or
prior to the Closing Date.
Section 7.3.3 Officers Certificate. The Company shall have received a certificate of an
officer of Parent confirming the satisfaction of the conditions set forth in Sections 7.3.1 and 7.3.2.
Section 7.4 Frustration of Closing Conditions. None of the Company, Parent or Merger Sub may rely on the failure of any
condition set forth in Article 7 to be satisfied if such failure was caused by such Partys failure to act in good faith to comply with this Agreement or use its reasonable best efforts to consummate and make effective the transactions
provided for herein.
Article 8
Termination, Amendment and Waiver
Section 8.1 Termination. This Agreement may be terminated, and the Merger contemplated hereby may be abandoned, at any time
prior to the Effective Time, by action taken or authorized by the Board of Directors of the terminating Party, whether before or after the Shareholder Approval:
(i) by mutual written consent of Parent and the Company;
(ii) by either Parent or the Company:
(a) if the Shareholder Approval is not obtained at the Company Shareholders Meeting or any adjournment or postponement thereof at which
adoption of this Agreement is voted upon; provided that the Companys right to terminate this Agreement under
52
this Section 8.1(ii)(a) shall not be available to the Company if the Company has not complied with its obligations under Sections 6.2 and 6.4 or Shareholder Approval is
not obtained because of a breach of a Shareholders Agreement;
(b) if the Merger shall not have been consummated by the date that is four
months from the date hereof (the Termination Date); provided, however, that the right to terminate this Agreement under this Section 8.1(ii)(b) shall not be available to any Party if any action of
such Party or the failure by any Party to perform any of its obligations under this Agreement has been the cause of, or resulted in, the failure of the Merger and the other transactions contemplated by this Agreement to be consummated on or before
the Termination Date; or
(c) if (A) any Law prohibits or makes illegal the consummation of the Merger or (B) any Order of any
Governmental Entity having competent jurisdiction is entered enjoining the Company, Parent or Merger Sub from consummating the Merger and such Order has become final and nonappealable, and, in either case, prior to termination pursuant to this
Section 8.1(ii)(c), the Party terminating this Agreement shall have used its reasonable best efforts to prevent, resist, appeal, obtain consent under, resolve or lift, as applicable, the Law or Order and shall have complied in all
material respects with its obligations under Section 6.5; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(ii)(c) shall not be available to any Party if any action
of such Party or the failure by any Party to perform any of its obligations under this Agreement has been the cause of, or resulted in, the imposition of any such Order or the failure of such Order to be resisted, resolved or lifted, as applicable;
(iii) by the Company:
(a) if (I) Parent or Merger Sub shall have breached any of the covenants or agreements contained in this Agreement to be complied with
by Parent or Merger Sub such that the closing condition set forth in Section 7.3.2 would not be satisfied or (II) there exists a breach of any representation or warranty of Parent or Merger Sub contained in this Agreement such that
the closing condition set forth in Section 7.3.1 would not be satisfied, and, in the case of clause (I) or clause (II), such breach is incapable of being cured or, if capable of being cured, shall not have been cured prior to the
earlier of (x) the Termination Date, and (y) twenty (20) Business Days after Parent or Merger Sub receives written notice of such breach from the Company; provided, however, that the Company shall not have the right to
terminate this Agreement pursuant to this Section 8.1(iii)(a) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement or there exists a breach of any representation or warranty of
the Company such that the closing condition set forth in Sections 7.2.1 or 7.2.2 would not be satisfied if the Closing Date were at the time of such termination; or
(b) if, prior to the obtaining of the Shareholder Approval, (I) the Company Board has received a Superior Proposal, (II) the
Company Board has determined in good faith (after consultation with its outside legal counsel and independent financial advisor) that the failure to accept such Superior Proposal is reasonably likely to be inconsistent with the fiduciary duties of
the members of the Company Board to the holders of shares of Company Stock under applicable Law, (III) the Company has complied with Sections 6.2 and 6.4 and (IV) the Company pays the Termination Fee and Parent Expenses to
Parent in accordance with Section 8.4; or
53
(iv) by Parent:
(a) if (I) the Company shall have breached any of the covenants or agreements contained in this Agreement to be complied with by the
Company such that the closing condition set forth in Section 7.2.2 would not be satisfied or (II) there exists a breach of any representation or warranty of the Company contained in this Agreement such that the closing condition set
forth in Section 7.2.1 would not be satisfied, and, in the case of clause (I) or clause (II), such breach is incapable of being cured or, if capable of being cured, shall not have been cured prior to the earlier of (x) the
Termination Date, and (y) twenty (20) Business Days after the Company receives written notice of such breach from Parent; provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this
Section 8.1(iv)(a) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement or there exists a breach of any representation or warranty of Parent or Merger Sub such that the
closing condition set forth in Sections 7.3.1 or 7.3.2 would not be satisfied if the Closing Date were at the time of such termination; or
(b) if, prior to the obtaining of the Shareholder Approval, (I) a Company Adverse Recommendation Change shall have occurred,
(II) the Company has failed to include the Company Recommendation in the Proxy Statement, (III) the Company Board approves, recommends or adopts, or publicly proposes to approve, recommend or adopt, a Takeover Proposal or approves or
recommends that holders of Company Stock tender their shares of Company Stock in any tender offer or exchange offer that is a Takeover Proposal, or (IV) the Company shall have breached or failed to perform any of the covenants and agreements set
forth in Sections 6.2 or 6.4.
Section 8.2 Notice of Termination; Effect of Termination. The Party
desiring to terminate this Agreement pursuant to this Article 8 (other than pursuant to Section 8.1(i)) shall deliver written notice of such termination to each other Party specifying with particularity the reason for such
termination, and any such termination in accordance with Section 8.2 shall be effective immediately upon delivery of such written notice to the other Party. Except as otherwise set forth in this Section 8.2, in the event of a
termination of this Agreement by either the Company or Parent as provided in Section 8.1, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of Parent, Merger Sub or the Company
hereunder; provided, however, that the provisions of this Section 8.2, Sections 6.3.2, 8.3, 8.4, 8.5 and Article 9 and the Confidentiality Agreement shall remain in full force
and effect and survive any termination of this Agreement; provided, further, that no Party shall be relieved or released from any liabilities or damages arising out of its willful or intentional material breach of any provision of this
Agreement.
Section 8.3 Fees and Expenses. Except as otherwise expressly set forth in this Agreement, all fees and
expenses incurred in connection herewith and the transactions contemplated hereby shall be paid by the Party incurring, or required to incur, such expenses, whether or not the Merger is consummated, except that Parent and the Company shall each bear
and pay 50 percent of the costs and expenses incurred in connection with the filing of the S-4 and the printing and mailing of the Proxy Statement (including any SEC filing fees).
54
Section 8.4 Termination Fee and Expenses.
Section 8.4.1 Termination Fee.
(i) If this Agreement is terminated by the Company pursuant to Section 8.1(iii)(b), then the Company shall pay to Parent (or as
directed by Parent), by wire transfer of same day funds, (x) $825,000 (the Termination Fee) plus (y) all of Parents actual and reasonably documented fees and expenses (including legal fees and expenses) incurred by
Parent and its Affiliates in connection with the transactions contemplated by this Agreement (the Parent Expenses) concurrently with, and as a condition precedent to, termination of this Agreement pursuant to
Section 8.1(iii)(b).
(ii) If this Agreement is terminated by Parent pursuant to Section 8.1(ii)(a) (but only if
Shareholder Approval is not obtained because of a breach of a Shareholders Agreement) or Section 8.1(iv)(b), then the Company shall pay to Parent (or as directed by Parent), by wire transfer of same day funds, (x) the Termination
Fee plus (y) the Parent Expenses within two Business Days after such termination, in each case by wire transfer of same-day funds.
(iii) If this Agreement is terminated by: (a) Parent pursuant to Section 8.1(iv)(a), (provided that the Shareholder
Approval shall not have been obtained at the Company Shareholder Meeting) or (b) the Company or Parent pursuant to (x) Section 8.1(ii)(b) (provided that Shareholder Approval shall not have been obtained at the Company
Shareholders Meeting) or (y) Section 8.1(ii)(a) and (I) prior to such termination (in the case of termination pursuant to Section 8.1(ii)(b) or Section 8.1(iv)(a)) or the Company Shareholders
Meeting (in the case of termination pursuant to Section 8.1(ii)(a)), a Takeover Proposal shall have been (1) publicly disclosed and not withdrawn (in the case of a termination pursuant to Section 8.1(ii)(a) or
Section 8.1(ii)(b)) or (2) publicly disclosed or otherwise made or communicated to the Company or the Company Board, and not withdrawn (in the case of a termination pursuant to Section 8.1(iv)(a)), and (II) within 12
months following the date of such termination, the Company shall have entered into a definitive agreement with respect to any Takeover Proposal, or any Takeover Proposal shall have been consummated, then in any such event the Company shall pay to
Parent (by wire transfer of immediately available funds), concurrently with, and as a condition precedent to consummating such transaction, the Termination Fee plus Parents Expenses.
Section 8.4.2 Parent Expenses. If this Agreement is terminated by either the Company or Parent (subject to
Section 8.4.1) pursuant to Section 8.1(ii)(a) or by Parent pursuant to Section 8.1(iv)(a), and neither Parent nor Merger Sub is in material default under this Agreement at the time of such termination, then the
Company shall pay to Parent (or as directed by Parent), by wire transfer of same day funds, the Parent Expenses as promptly as reasonably practicable (and, in any event, within two (2) Business Days following such termination).
55
Section 8.4.3 Company Expenses. If this Agreement is terminated by the Company
pursuant to Section 8.1(iii)(a), and the Company is not in material default under this Agreement at the time of such termination, then Parent shall pay to the Company (or as directed by Parent), by wire transfer of same day funds, all of
the Companys actual and reasonably documented fees and expenses (including legal fees and expenses) incurred by the Company in connection with the transactions contemplated by this Agreement (the Company Expenses) as
promptly as reasonably practicable (and, in any event, within two (2) Business Days following such termination).
Section 8.4.4 Acknowledgement. The Parties acknowledge that the agreements contained in this Section 8.4 are an
integral part of the transactions contemplated by this Agreement and that, without these agreements, the Parties would not enter into this Agreement. If the Company fails to pay the Termination Fee and/or Parent Expenses when due, and, in order to
obtain such payment Parent commences a suit which results in a judgment against the Company for all or any portion of the Parent Expenses, the Company shall pay to Parent its reasonable out-of-pocket costs and expenses (including reasonable
attorneys fees) in connection with such suit. If Parent fails to pay the Company Expenses when due, and, in order to obtain such payment the Company commences a suit which results in a judgment against Parent for all or any portion of the
Company Expenses, Parent shall pay to the Company its reasonable out-of-pocket costs and expenses (including reasonable attorneys fees) in connection with such suit.
Section 8.5 Extension; Waiver. At any time prior to the Effective Time, Parent or the Company may, to the extent permitted
by applicable Law, (a) extend the time for the performance of any of the obligations or other acts of the other Party under this Agreement, (b) waive any inaccuracies in the representations and warranties of the other Party contained
herein or in any instrument delivered pursuant hereto or (c) waive compliance with any of the covenants or agreements of the other Party or conditions to the obligations of the waiving Party contained herein; provided, however, that
after any approval of this Agreement by the shareholders of the Company, no extension or waiver that, by Law or in accordance with the rules of any relevant stock exchange, requires further approval by such shareholders may be made without such
shareholder approval. Any agreement on the part of a Party to any such extension or waiver shall be valid only if set forth in a written instrument signed by such Party. The failure or delay of any Party to assert any of its rights under this
Agreement or otherwise shall not constitute a waiver of those rights, nor shall any single or partial exercise of any right under this Agreement preclude any other or further exercise of any rights hereunder.
Section 8.6 Amendment. At any time prior to the Effective Time, this Agreement may be amended by the Parties by action
taken by or on behalf of their respective Boards of Directors; provided, however, that, after approval of the Agreement by the shareholders of the Company, no amendment that, by Law or in accordance with the rules of any relevant stock
exchange, requires further approval by such shareholders may be made without such shareholder approval. This Agreement may not be amended except by an instrument in writing signed by Parent, Merger Sub and the Company.
Section 8.7 Acknowledgment. The Parties acknowledge that the Termination Fee shall not be relevant in terms of determining
levels of materiality for purposes of this Agreement.
56
Article 9
General Provisions
Section 9.1 Non-Survival of Representations and Warranties. None of the representations and warranties of the Parties in
this Agreement or in any instrument delivered pursuant to this Agreement (or the Schedules or Exhibits attached hereto or delivered in connection herewith) shall survive the Effective Time. None of the covenants or agreements of the Parties in this
Agreement shall survive the Effective Time, other than (a) the covenants and agreements of the Parties contained in this Article 9, in Article 3 and in Section 6.3.2 and (b) those other covenants and agreements
contained herein that by their terms apply, or that are to be performed in whole or in part, after the Effective Time, which shall survive the consummation of the Merger until fully performed.
Section 9.2 Notices. Any notices or other communications required or permitted under, or otherwise made in connection with,
this Agreement, shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) upon confirmation of receipt when transmitted by facsimile transmission or by electronic mail (but, in the case of electronic
mail, only if followed by transmittal by national overnight courier or hand delivery on the next Business Day), (c) upon receipt after dispatch by registered or certified mail, postage prepaid or (d) on the next Business Day if transmitted
by national overnight courier (with confirmation of delivery), in each case, addressed as follows:
If to the Company,
addressed to it at:
Revett Mining Company, Inc.
11115 East Montgomery, Suite G
Spokane Valley, Washington 99206
Attention: Ken Eickerman
Facsimile: (509) 891 8901
Email: KEickerman@revettminerals.com
with a mandated copy (which shall not constitute notice) to:
Randall Danskin, P.S.
1500 Bank of America Financial Center
601 West Riverside Avenue
Spokane, Washington 99201-0626
Attention: Douglas J. Siddoway
Facsimile: (509) 624-2528
Email: djs@randalldanskin.com
If to Parent or Merger Sub, addressed to it at:
Hecla Mining Company
6500 N. Mineral Drive, Suite 200
57
Coeur dAlene, Idaho 83815-9408
Attention: David Sienko
Facsimile: (208) 209-1278
Email: dsienko@hecla-mining.com
with a mandated copy (which shall not constitute notice) to:
K&L Gates LLP
70 West Madison Street, Suite 3100
Chicago, IL 60602-4207
Attention: J. Craig Walker
Facsimile: (312) 827-8179
Email: craig.walker@klgates.com
Section 9.3 Headings. The headings and table of contents contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
Section 9.4 Disclosure Schedules.
Section 9.4.1 Company Disclosure Schedule. Nothing in the Company Disclosure Schedule shall be deemed adequate to disclose an
exception to a representation or warranty made in Article 4 unless the Company Disclosure Schedule identifies the exception with reasonable particularity and describes the relevant facts in reasonable detail. Without limiting the generality
of the foregoing, the mere listing (or inclusion of a copy) of a document or other item shall not be deemed adequate to disclose an exception to a representation or warranty made herein (unless the representation or warranty has to do with the
existence of the document or other item itself). The Company Disclosure Schedule will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained in Article 4.
Section 9.4.2 Parent Disclosure Schedule. Nothing in the Parent Disclosure Schedule shall be deemed adequate to disclose an
exception to a representation or warranty made in Article 5 unless the Parent Disclosure Schedule identifies the exception with reasonable particularity and describes the relevant facts in reasonable detail. Without limiting the generality of
the foregoing, the mere listing (or inclusion of a copy) of a document or other item shall not be deemed adequate to disclose an exception to a representation or warranty made herein (unless the representation or warranty has to do with the
existence of the document or other item itself). The Parent Disclosure Schedule will be arranged in paragraphs corresponding to the lettered and numbered paragraphs contained in Article 5.
Section 9.5 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being
enforced by any rule of 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 a determination that any term or other provision of this Agreement is invalid, illegal or incapable of being enforced, the Parties 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 greatest extent possible.
58
Section 9.6 Entire Agreement; Parties in Interest. This Agreement (together
with the Exhibits, Parent Disclosure Schedule, Company Disclosure Schedule and the other instruments delivered pursuant hereto) and the Confidentiality Agreement constitute the entire agreement of the Parties and supersede all prior agreements and
undertakings, both written and oral, among the Parties, or any of them, with respect to the subject matter hereof and thereof. Nothing in this Agreement, express or implied, shall confer upon any other Person any rights, benefits or remedies of any
nature whatsoever under or by reason of this Agreement; provided that the provisions of Article 3 shall inure to the benefit of those Persons benefiting therefrom who are intended third-party beneficiaries thereof.
Section 9.7 Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned
by any of the Parties (whether by operation of Law or otherwise) without the prior written consent of the other Parties, and any such assignment shall be null and void. No assignment by any Party shall relieve such Party of any of its obligations
hereunder. Subject to the foregoing, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns.
Section 9.8 Mutual Drafting. Each Party has participated in the drafting of this Agreement, which each Party acknowledges
is the result of extensive negotiations between the Parties.
Section 9.9 Governing Law; Consent to Jurisdiction; Remedies;
Enforcement; Waiver of Trial by Jury.
Section 9.9.1 Governing Law. This Agreement, and all claims and causes of action
arising out of, based upon, or related to this Agreement or the negotiation, execution or performance hereof, shall be governed by, and construed, interpreted and enforced in accordance with, the Laws of the State of Delaware, without regard to
choice or conflict of law principles that would result in the application of any Laws other than the Laws of the State of Delaware.
Section 9.9.2 Exclusive Jurisdiction. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE DISTRICT COURT OF THE STATE
OF IDAHO AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF IDAHO SOLELY IN CONNECTION WITH ANY DISPUTE THAT ARISES IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT AND THE DOCUMENTS
REFERRED TO IN THIS AGREEMENT OR IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR ANY SUCH DOCUMENT THAT IT IS
NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS,
AND THE PARTIES HERETO
59
IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED EXCLUSIVELY BY SUCH AN IDAHO STATE OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO
AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN
SECTION 9.2 OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
Section 9.9.3 Remedies. Except as otherwise provided in this Agreement, any and all remedies expressly conferred upon the Parties
will be cumulative with, and not exclusive of, any other remedy contained in this Agreement, at Law or in equity. The exercise by a Party of any one remedy will not preclude the exercise by it of any other remedy.
Section 9.9.4 Right to Injunctive Relief. The Parties agree that irreparable damage would occur in the event that any provision of
this Agreement were not performed in accordance with its specific terms or was otherwise breached. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement, without the requirement of posting a bond or other security, exclusively in any state or federal court within the State of Idaho and any state appellate court therefrom within the State of
Idaho, and any such injunction shall be in addition to any other remedy to which any Party is entitled, at law or in equity.
Section 9.9.5 Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW ANY AND ALL RIGHT SUCH PARTY MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION, SUIT OR PROCEEDING BETWEEN THE PARTIES HERETO ARISING OUT OF, BASED UPON OR RELATING TO THIS AGREEMENT OR THE NEGOTIATION, EXECUTION OR PERFORMANCE HEREOF.
Section 9.9.6 Attorneys Fees. If any Party brings an action to enforce its rights under this Agreement, the prevailing party
shall be entitled to recover its costs and expenses, including reasonable legal fees, incurred in connection with such action, including any appeal of such action.
Section 9.10 Counterparts. This Agreement may be executed by facsimile and in one or more counterparts, and by the
different Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement, and which shall become effective when one or more counterparts
have been signed by each of the Parties and delivered (by facsimile or otherwise) to the other Parties.
Section 9.11 No
Third Party Beneficiaries. Except as provided in Section 6.9 (which shall be to the benefit of the parties referred to in such section), this Agreement is for the sole benefit of the Parties and their permitted assigns and respective
successors and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
* * * * *
(signature page
follows)
60
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be executed
and delivered as of the date first written above.
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REVETT MINING COMPANY, INC. |
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By: |
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/s/ John G. Shanahan |
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Name: |
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John G. Shanahan |
Title: |
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President & CEO |
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HECLA MINING COMPANY |
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By: |
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/s/ David C. Sienko |
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Name: |
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David C. Sienko |
Title: |
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Vice President & General Counsel |
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RHL HOLDINGS, INC. |
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By: |
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/s/ Don Poirier |
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Name: |
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Don Poirier |
Title: |
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President |
[Signature Page to Agreement and Plan of Merger]
EXHIBIT A
Form of Shareholders Agreement
[see attached]
Exhibit A
Form of
Shareholders
Agreement1
This Shareholders Agreement (this Agreement),
dated as of [DATE], 2015, is between the undersigned shareholder (Shareholder) of Revett Mining Company, Inc., a Delaware corporation (the Company), and Hecla Mining Company, a Delaware corporation
(Parent).
WHEREAS, concurrently with or following the execution of this Agreement, the Company, Parent, and RHL
Holdings, Inc., a Delaware corporation and wholly-owned subsidiary of Parent (Merger Sub), have entered, or will enter, into an Agreement and Plan of Merger (as the same may be amended from time to time, the Merger
Agreement), providing for, among other things, the merger (the Merger) of Merger Sub into the Company pursuant to the terms and conditions of the Merger Agreement;
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has required that Shareholder execute and deliver this
Agreement; and
WHEREAS, in order to induce Parent to enter into the Merger Agreement, Shareholder is willing to make certain
representations, warranties, covenants and agreements with respect to the shares of common stock, par value $0.01 per share, of the Company (Company Stock) beneficially owned by Shareholder and set forth below Shareholders
signature on the signature page hereto (the Original Shares and, together with any additional shares of Company Stock Shareholder purchases or acquires as described in Section 6, the Shares).
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, sufficiency and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, capitalized terms
used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.
2. Representations of
Shareholder. Shareholder represents and warrants to Parent that:
(a) (i) Shareholder owns beneficially (as such term
is defined in Rule 13d-3 under the Exchange Act), all of the Original Shares free and clear of all Liens, and (ii) except pursuant hereto, there are no options, warrants or other rights, agreements, arrangements or commitments of any character
to which Shareholder is a party relating to the pledge, disposition or voting of any of the Original Shares and there are no voting trusts or voting agreements with respect to the Original Shares.
(b) Shareholder does not beneficially own any shares of Company Stock other than [(i)] the Original Shares [and (ii) any
options, warrants or other rights to acquire any additional shares of Company Stock or any security exercisable for or convertible into shares of Company Stock, set forth on the signature page of this Agreement (collectively, Derivative
Securities)]2.
1 |
NTD: Parent will require executed Shareholder Agreements from Trafigura Beheer, John Shanahan, Timothy Lindsey, and all other directors and officers who are shareholders. |
2 |
NTD: To be deleted for Shareholders that do not hold Derivative Securities. |
(c) Shareholder has full
[corporate]3 power and authority [and legal capacity]4 to enter into, execute and deliver this Agreement and to perform fully
Shareholders obligations hereunder (including the proxy described in Section 3(b) below)). This Agreement has been duly and validly executed and delivered by Shareholder and constitutes the legal, valid and binding obligation of
Shareholder, enforceable against Shareholder in accordance with its terms.
(d) None of the execution and delivery of this
Agreement by Shareholder, the consummation by Shareholder of the transactions contemplated hereby, or compliance by Shareholder with any of the provisions hereof will conflict with or result in a breach, or constitute a default (with or without
notice of lapse of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or Law applicable to Shareholder or to Shareholders property or
assets.
(e) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity
or other Person on the part of Shareholder is required in connection with the valid execution and delivery of this Agreement. [No consent of Shareholders spouse is necessary under any community property or other laws in order for
Shareholder to enter into and perform its obligations under this Agreement.]5
3.
Agreement to Vote Shares; Irrevocable Proxy.
(a) Shareholder agrees during the term of this Agreement to vote the
Shares, and to cause any holder of record of Shares to vote: (i) in favor of the Merger and the Merger Agreement, at every meeting of the shareholders of the Company at which such matters are considered and at every adjournment or postponement
thereof; (ii) against (1) any Takeover Proposal, (2) any action, proposal, transaction or agreement which could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or of Shareholder under this Agreement and (3) any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely affect
or inhibit the timely consummation of the Merger or the fulfillment of Parents, the Companys or Merger Subs conditions under the Merger Agreement or change in any manner the voting rights of any class of shares of the Company
(including any amendments to the Charter Documents of the Company).
(b) Shareholder hereby appoints Parent and any
designee of Parent, and each of them individually, its proxies and attorneys-in-fact, with full power of substitution and resubstitution, to vote during the term of this Agreement with respect to the Shares in accordance with
Section 3(a). This proxy and power of attorney is given to secure the performance of the duties of Shareholder under this Agreement. Shareholder shall take such further action or execute such other instruments as may be necessary to
effectuate the intent of this proxy. This proxy and power of attorney granted by Shareholder shall be
3 |
NTD: To be deleted for individual Shareholders. |
4 |
NTD: To be deleted for Shareholders that are a business entity. |
5 |
NTD: To be deleted for Shareholders that are a business entity or an unmarried individual.
|
2
irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted
by Shareholder with respect to the Shares. The power of attorney granted by Shareholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Shareholder. The proxy and power of attorney granted
hereunder shall terminate upon the termination of this Agreement.
4. No Voting Trusts or Other Arrangement. Shareholder agrees
that Shareholder will not, and will not permit any entity under Shareholders control to, deposit any of the Shares in a voting trust, grant any proxies with respect to the Shares or subject any of the Shares to any arrangement with respect to
the voting of the Shares other than agreements entered into with Parent.
5. Transfer and Encumbrance. Shareholder agrees that
during the term of this Agreement, Shareholder will not, directly or indirectly, transfer, sell, offer, exchange, assign, pledge or otherwise dispose of or encumber (Transfer) any of the Shares or enter into any contract, option
or other agreement with respect to, or consent to, a Transfer of, any of the Shares or Shareholders voting or economic interest therein. Any attempted Transfer of Shares or any interest therein in violation of this Section 5 shall
be null and void. This Section 5 shall not prohibit a Transfer of the Shares by Shareholder [to any member of Shareholders immediate family, or to a trust for the benefit of Shareholder or any member of Shareholders immediate
family, or upon the death of Shareholder]/[to an Affiliate of Shareholder]6; provided, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such
Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Parent, to be bound by all of the terms of this Agreement.
6. Additional Shares. Shareholder agrees that all shares of Company Stock that Shareholder purchases, acquires the right to vote or
otherwise acquires beneficial ownership (as defined in Rule 13d-3 under the Exchange Act[, but excluding shares of Company Stock underlying unexercised Derivative Securities]7) of after the
execution of this Agreement shall be subject to the terms of this Agreement and shall constitute Shares for all purposes of this Agreement.
7. Termination. This Agreement shall terminate upon the earliest to occur of (i) the Effective Time and (ii) the date on
which the Merger Agreement is terminated in accordance with its terms.
8. No Agreement as Director or Officer. Shareholder makes
no agreement or understanding in this Agreement in Shareholders capacity as a director or officer of the Company or any of its Subsidiaries (if Shareholder holds such office), and nothing in this Agreement: (a) will limit or affect any
actions or omissions taken by Shareholder in Shareholders capacity as such a director or officer, including in exercising rights under the Merger Agreement, and no such actions or omissions shall be deemed a breach of this Agreement or
(b) will be construed to prohibit, limit or restrict Shareholder from exercising Shareholders fiduciary duties as an officer or director to the Company or its Shareholders.
6 |
NTD: First bracketed language to be deleted for Shareholders that are a Business Entity. Second bracketed language to be deleted for shareholders that are individuals. |
7 |
NTD: To be deleted for Shareholders that do not hold Derivative Securities. |
3
9. Specific Performance. Each party hereto acknowledges that it will be impossible to
measure in money the damage to the other party if a party hereto fails to comply with any of the obligations imposed by this Agreement, that every such obligation is material and that, in the event of any such failure, the other party will not have
an adequate remedy at law or damages. Accordingly, each party hereto agrees that injunctive relief or other equitable remedy, in addition to remedies at law or damages, is the appropriate remedy for any such failure and will not oppose the seeking
of such relief on the basis that the other party has an adequate remedy at law. Each party hereto agrees that it will not seek, and agrees to waive any requirement for, the securing or posting of a bond in connection with the other partys
seeking or obtaining such equitable relief.
10. Entire Agreement. This Agreement supersedes all prior agreements, written or oral,
between the parties hereto with respect to the subject matter hereof and contains the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not be amended or supplemented, and no provisions hereof may be
modified or waived, except by an instrument in writing signed by both of the parties hereto. No waiver of any provisions hereof by either party shall be deemed a waiver of any other provisions hereof by such party, nor shall any such waiver be
deemed a continuing waiver of any provision hereof by such party.
11. Notices. All notices, requests, claims, demands, and other
communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier
(receipt requested), (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of
the recipient, or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other
address for a party as shall be specified in a notice given in accordance with this Section 11):
If to
Parent or Merger Sub, addressed to it at:
Hecla Mining Company
6500 N. Mineral Drive, Suite 200
Coeur dAlene, Idaho 83815-9408
Attention: David Sienko
Facsimile: (208) 209-1278
Email: dsienko@hecla-mining.com
with a mandated copy (which shall not constitute notice) to:
K&L Gates LLP
70 West Madison Street, Suite 3100
Chicago, IL 60602-4207
Attention: J. Craig Walker
Facsimile: (312) 827-8179
Email: craig.walker@klgates.com
4
If to Shareholder, to the address or facsimile number set forth for Shareholder on the signature
page hereof.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.
(b) Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the
rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns shall be
brought and determined exclusively in the district court of the State of Idaho, or in the event (but only in the event) that such court does not have subject matter jurisdiction over such action or proceeding, in the federal courts of the United
States of America located in the State of Idaho. Each of the parties hereto agrees that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 11 or in such other manner as
may be permitted by applicable Laws, will be valid and sufficient service thereof. Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and
unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court or tribunal other than the aforesaid
courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement and the rights and obligations arising
hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the above named courts for any
reason other than the failure to serve process in accordance with this Section 12(b), (ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts
(whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and (iii) to the fullest extent permitted by the applicable Law, any claim that (x) the
suit, action or proceeding in such court is brought in an inconvenient forum, (y) the venue of such suit, action or proceeding is improper, or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO
5
REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY
HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 12(C).
(d) If any term or provision of this Agreement is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any
term or other provision is invalid, illegal or unenforceable, 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 a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(e) This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
(f) Each party hereto shall execute and deliver such
additional documents as may be necessary or desirable to effect the transactions contemplated by this Agreement.
(g) All
Section headings herein are for convenience of reference only and are not part of this Agreement, and no construction or reference shall be derived therefrom.
(h) The obligations of Shareholder set forth in this Agreement shall not be effective or binding upon Shareholder until after
such time as the Merger Agreement is executed and delivered by the Company, Parent and Merger Sub, and the parties agree that there is not and has not been any other agreement, arrangement or understanding between the parties hereto with respect to
the matters set forth herein.
(i) Neither party to this Agreement may assign any of its rights or obligations under this
Agreement without the prior written consent of the other party hereto, except that Parent may assign, in its sole discretion, all or any of its rights, interests and obligations hereunder to any of its Affiliates. Any assignment contrary to the
provisions of this Section 12(i) shall be null and void.
[SIGNATURE PAGE FOLLOWS]
6
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written
above.
|
|
|
Number of Shares of Company Stock Beneficially Owned as of the Date of this Agreement: |
|
[Number of Derivative Securities Beneficially Owned as of the Date of this Agreement:]8 |
|
|
Street Address: |
|
|
8 |
NTD: To be deleted for Shareholders that do not hold Derivative Securities. |
7
EXHIBIT B
Certificate of Incorporation
[see attached]
EXHIBIT B
Amended and Restated
Certificate of Incorporation
of
Revett Mining
Company, Inc.
FIRST: The name of the corporation is Revett Mining Company, Inc. (the Corporation).
SECOND: The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange
Street, Wilmington, Delaware, 19801, County of New Castle. The name of the registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purpose of the Corporation is to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the
Corporation is authorized to issue shall be one thousand (1,000) shares of Common Stock, par value $0.01 per share.
FIFTH:
The original bylaws of the Corporation shall be adopted by the incorporator. Thereafter, in furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized to make, alter or repeal the bylaws of
the Corporation.
SIXTH: Meetings of stockholders may be held within or outside the State of Delaware, as the bylaws may provide.
The books of the Corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the bylaws of the Corporation.
Elections of directors need not be by written ballot unless the bylaws of the Corporation shall so provide.
SEVENTH: (1) Each
person who is or was a director or officer of the Corporation or a subsidiary of the Corporation and each person who serves or served at the request of the Corporation as a director or officer of another corporation, partnership, joint venture,
trust or other enterprise (and the heirs, executors, administrators and estates of any such persons), shall be indemnified by the Corporation in accordance with, and to the fullest extent authorized by, the provisions of the Delaware General
Corporation Law as it may from time to time be amended. Each person who is or was an employee or agent of the Corporation, and each person who serves or has served at the request of the Corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, may be similarly indemnified at the discretion of the board of directors.
(2) No director shall be personally liable to the Corporation or its stockholders for monetary
damages for any breach of fiduciary duty by such director as a director. Notwithstanding the foregoing sentence, a director shall be liable to the extent provided by applicable law (i) for breach of the directors duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) pursuant to Section 174 of the Delaware General Corporation Law, or
(iv) for any transaction from which the director derived an improper personal benefit.
(3) No amendment to or repeal of this Article
SEVENTH shall apply to or have any effect on the right to indemnification or liability or alleged liability of any person who is or was a director or officer of the Corporation or a subsidiary of the Corporation or any person who serves or served at
the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise (or the heirs, executors, administrators and estates of any such persons), for or with respect to any acts or
omissions of such person occurring prior to such amendment.
EIGHTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation in the manner now or hereafter prescribed by Statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
-2-
Exhibit 3
Form of
Shareholders
Agreement
This Shareholders Agreement (this Agreement), dated as of March 26, 2015, is between the
undersigned shareholder (Shareholder) of Revett Mining Company, Inc., a Delaware corporation (the Company), and Hecla Mining Company, a Delaware corporation (Parent).
WHEREAS, concurrently with or following the execution of this Agreement, the Company, Parent, and RHL Holdings, Inc., a Delaware corporation
and wholly-owned subsidiary of Parent (Merger Sub), have entered, or will enter, into an Agreement and Plan of Merger (as the same may be amended from time to time, the Merger Agreement), providing for, among
other things, the merger (the Merger) of Merger Sub into the Company pursuant to the terms and conditions of the Merger Agreement;
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has required that Shareholder execute and deliver this
Agreement; and
WHEREAS, in order to induce Parent to enter into the Merger Agreement, Shareholder is willing to make certain
representations, warranties, covenants and agreements with respect to the shares of common stock, par value $0.01 per share, of the Company (Company Stock) beneficially owned by Shareholder and set forth below Shareholders
signature on the signature page hereto (the Original Shares and, together with any additional shares of Company Stock Shareholder purchases or acquires as described in Section 6, the Shares).
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, sufficiency and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, capitalized terms
used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.
2. Representations of
Shareholder. Shareholder represents and warrants to Parent that:
(a) (i) Shareholder owns beneficially (as such term
is defined in Rule 13d-3 under the Exchange Act), all of the Original Shares free and clear of all Liens, and (ii) except pursuant hereto, there are no options, warrants or other rights, agreements, arrangements or commitments of any character
to which Shareholder is a party relating to the pledge, disposition or voting of any of the Original Shares and there are no voting trusts or voting agreements with respect to the Original Shares.
(b) Shareholder does not beneficially own any shares of Company Stock other than (i) the Original Shares [and
(ii) any options, warrants or other rights to acquire any additional shares of Company Stock or any security exercisable for or convertible into shares of Company Stock, set forth on the signature page of this Agreement (collectively,
Derivative Securities).
(c) Shareholder has full corporate power and authority to enter into, execute
and deliver this Agreement and to perform fully Shareholders obligations hereunder (including the proxy described in Section 3(b) below)). This Agreement has been duly and validly executed and delivered by Shareholder and
constitutes the legal, valid and binding obligation of Shareholder, enforceable against Shareholder in accordance with its terms.
(d) None of the execution and delivery of this Agreement by Shareholder, the
consummation by Shareholder of the transactions contemplated hereby, or compliance by Shareholder with any of the provisions hereof will conflict with or result in a breach, or constitute a default (with or without notice of lapse of time or both)
under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or Law applicable to Shareholder or to Shareholders property or assets.
(e) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other
Person on the part of Shareholder is required in connection with the valid execution and delivery of this Agreement.
3. Agreement to
Vote Shares; Irrevocable Proxy.
(a) Shareholder agrees during the term of this Agreement to vote the Shares, and to
cause any holder of record of Shares to vote: (i) in favor of the Merger and the Merger Agreement, at every meeting of the shareholders of the Company at which such matters are considered and at every adjournment or postponement thereof;
(ii) against (1) any Takeover Proposal, (2) any action, proposal, transaction or agreement which could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement or of Shareholder under this Agreement and (3) any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the
timely consummation of the Merger or the fulfillment of Parents, the Companys or Merger Subs conditions under the Merger Agreement or change in any manner the voting rights of any class of shares of the Company (including any
amendments to the Charter Documents of the Company).
(b) Shareholder hereby appoints Parent and any designee of Parent,
and each of them individually, its proxies and attorneys-in-fact, with full power of substitution and resubstitution, to vote during the term of this Agreement with respect to the Shares in accordance with Section 3(a). This proxy and
power of attorney is given to secure the performance of the duties of Shareholder under this Agreement. Shareholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. This
proxy and power of attorney granted by Shareholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies
granted by Shareholder with respect to the Shares. The power of attorney granted by Shareholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Shareholder. The proxy and power of attorney
granted hereunder shall terminate upon the termination of this Agreement.
4. No Voting Trusts or Other Arrangement. Shareholder
agrees that Shareholder will not, and will not permit any entity under Shareholders control to, deposit any of the Shares in a voting trust, grant any proxies with respect to the Shares or subject any of the Shares to any arrangement with
respect to the voting of the Shares other than agreements entered into with Parent.
2
5. Transfer and Encumbrance. Shareholder agrees that during the term of this Agreement,
Shareholder will not, directly or indirectly, transfer, sell, offer, exchange, assign, pledge or otherwise dispose of or encumber (Transfer) any of the Shares or enter into any contract, option or other agreement with respect to,
or consent to, a Transfer of, any of the Shares or Shareholders voting or economic interest therein. Any attempted Transfer of Shares or any interest therein in violation of this Section 5 shall be null and void. This
Section 5 shall not prohibit a Transfer of the Shares by Shareholder to an Affiliate of Shareholder; provided, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the
transferee agrees in a writing, reasonably satisfactory in form and substance to Parent, to be bound by all of the terms of this Agreement.
6. Additional Shares. Shareholder agrees that all shares of Company Stock that Shareholder purchases, acquires the right to vote or
otherwise acquires beneficial ownership (as defined in Rule 13d-3 under the Exchange Act, but excluding shares of Company Stock underlying unexercised Derivative Securities) of after the execution of this Agreement shall be subject to the terms of
this Agreement and shall constitute Shares for all purposes of this Agreement.
7. Termination. This Agreement shall terminate upon
the earliest to occur of (i) the Effective Time and (ii) the date on which the Merger Agreement is terminated in accordance with its terms.
8. No Agreement as Director or Officer. Shareholder makes no agreement or understanding in this Agreement in Shareholders capacity
as a director or officer of the Company or any of its Subsidiaries (if Shareholder holds such office), and nothing in this Agreement: (a) will limit or affect any actions or omissions taken by Shareholder in Shareholders capacity as such
a director or officer, including in exercising rights under the Merger Agreement, and no such actions or omissions shall be deemed a breach of this Agreement or (b) will be construed to prohibit, limit or restrict Shareholder from exercising
Shareholders fiduciary duties as an officer or director to the Company or its Shareholders.
9. Specific Performance. Each
party hereto acknowledges that it will be impossible to measure in money the damage to the other party if a party hereto fails to comply with any of the obligations imposed by this Agreement, that every such obligation is material and that, in the
event of any such failure, the other party will not have an adequate remedy at law or damages. Accordingly, each party hereto agrees that injunctive relief or other equitable remedy, in addition to remedies at law or damages, is the appropriate
remedy for any such failure and will not oppose the seeking of such relief on the basis that the other party has an adequate remedy at law. Each party hereto agrees that it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with the other partys seeking or obtaining such equitable relief.
10. Entire Agreement. This
Agreement supersedes all prior agreements, written or oral, between the parties hereto with respect to the subject matter hereof and contains the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not
be amended or supplemented, and no provisions hereof may be modified or waived, except by an instrument in writing signed by both of the parties hereto. No waiver of any provisions hereof by either party shall be deemed a waiver of any other
provisions hereof by such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof by such party.
3
11. Notices. All notices, requests, claims, demands, and other communications hereunder
shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested), (c)
on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient, or (d) on the
third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this Section 11):
If to Parent or Merger Sub, addressed to it at:
Hecla Mining Company
6500 N.
Mineral Drive, Suite 200
Coeur dAlene, Idaho 83815-9408
Attention: David Sienko
Facsimile: (208) 209-1278
Email:
dsienko@hecla-mining.com
with a mandated copy (which shall not constitute notice) to:
K&L Gates LLP
70 West
Madison Street, Suite 3100
Chicago, IL 60602-4207
Attention: J. Craig Walker
Facsimile: (312) 827-8179
Email: craig.walker@klgates.com
If to Shareholder, to the address or facsimile number set forth for Shareholder on the signature page hereof.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.
(b) Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the
rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns shall be
brought and determined exclusively in the district court of the State of Idaho, or in the event (but only in the event) that such court does not have subject matter jurisdiction over such action or proceeding, in the federal courts of the United
States of America located in the State of Idaho. Each of the parties
4
hereto agrees that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 11 or in such other manner as may be permitted
by applicable Laws, will be valid and sufficient service thereof. Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the
personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court or tribunal other than the aforesaid courts. Each of the
parties hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for
recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than
the failure to serve process in accordance with this Section 12(b), (ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and (iii) to the fullest extent permitted by the applicable Law, any claim that (x) the suit, action or
proceeding in such court is brought in an inconvenient forum, (y) the venue of such suit, action or proceeding is improper, or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER
IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(C).
(d) If any term or provision of this Agreement is invalid,
illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon
such determination that any term or other provision is invalid, illegal or unenforceable, 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 a
mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
5
(e) This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one and the same instrument.
(f) Each party
hereto shall execute and deliver such additional documents as may be necessary or desirable to effect the transactions contemplated by this Agreement.
(g) All Section headings herein are for convenience of reference only and are not part of this Agreement, and no construction
or reference shall be derived therefrom.
(h) The obligations of Shareholder set forth in this Agreement shall not be
effective or binding upon Shareholder until after such time as the Merger Agreement is executed and delivered by the Company, Parent and Merger Sub, and the parties agree that there is not and has not been any other agreement, arrangement or
understanding between the parties hereto with respect to the matters set forth herein.
(i) Neither party to this Agreement
may assign any of its rights or obligations under this Agreement without the prior written consent of the other party hereto, except that Parent may assign, in its sole discretion, all or any of its rights, interests and obligations hereunder to any
of its Affiliates. Any assignment contrary to the provisions of this Section 12(i) shall be null and void.
[SIGNATURE PAGE
FOLLOWS]
6
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written
above.
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HECLA MINING COMPANY |
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By: |
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/s/ David C. Sienko |
Name: |
|
David C. Sienko |
Title: |
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Vice President & General Counsel |
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URION HOLDINGS (MALTA) LIMITED |
|
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By: |
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/s/ Jeremy Weir |
Name: |
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Jeremy Weir |
Title: |
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Authorized Signatory |
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Number of Shares of Company Stock
Beneficially Owned as of the Date of this Agreement:
3,987,179 |
|
Number of Derivative Securities
Beneficially Owned as of the Date of this Agreement:
160,256 |
|
Street Address: Leicester Court, Suite 2,
Edgar Bernard Street, Gzira GZR1702, Malta |
|
Fax: 41 (0) 22 594 6901 |
7
Exhibit 4
Form of
Shareholders
Agreement
This Shareholders Agreement (this Agreement), dated as of March 26, 2015, is between the undersigned
shareholder (Shareholder) of Revett Mining Company, Inc., a Delaware corporation (the Company), and Hecla Mining Company, a Delaware corporation (Parent).
WHEREAS, concurrently with or following the execution of this Agreement, the Company, Parent, and RHL Holdings, Inc., a Delaware corporation
and wholly-owned subsidiary of Parent (Merger Sub), have entered, or will enter, into an Agreement and Plan of Merger (as the same may be amended from time to time, the Merger Agreement), providing for, among
other things, the merger (the Merger) of Merger Sub into the Company pursuant to the terms and conditions of the Merger Agreement;
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has required that Shareholder execute and deliver this
Agreement; and
WHEREAS, in order to induce Parent to enter into the Merger Agreement, Shareholder is willing to make certain
representations, warranties, covenants and agreements with respect to the shares of common stock, par value $0.01 per share, of the Company (Company Stock) beneficially owned by Shareholder and set forth below Shareholders
signature on the signature page hereto (the Original Shares and, together with any additional shares of Company Stock Shareholder purchases or acquires as described in Section 6, the Shares).
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, sufficiency and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, capitalized terms
used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.
2. Representations of
Shareholder. Shareholder represents and warrants to Parent that:
(a) (i) Shareholder owns beneficially (as such term
is defined in Rule 13d-3 under the Exchange Act), all of the Original Shares free and clear of all Liens, and (ii) except pursuant hereto, there are no options, warrants or other rights, agreements, arrangements or commitments of any character
to which Shareholder is a party relating to the pledge, disposition or voting of any of the Original Shares and there are no voting trusts or voting agreements with respect to the Original Shares.
(b) Shareholder does not beneficially own any shares of Company Stock other than (i) the Original Shares and (ii) any
options, warrants or other rights to acquire any additional shares of Company Stock or any security exercisable for or convertible into shares of Company Stock, set forth on the signature page of this Agreement (collectively, Derivative
Securities.
(c) Shareholder has full power and authority and legal capacity to enter into, execute and deliver
this Agreement and to perform fully Shareholders obligations hereunder (including the proxy described in Section 3(b) below)). This Agreement has been duly and validly executed and delivered by Shareholder and constitutes the
legal, valid and binding obligation of Shareholder, enforceable against Shareholder in accordance with its terms.
(d) None of the execution and delivery of this Agreement by Shareholder, the
consummation by Shareholder of the transactions contemplated hereby, or compliance by Shareholder with any of the provisions hereof will conflict with or result in a breach, or constitute a default (with or without notice of lapse of time or both)
under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or Law applicable to Shareholder or to Shareholders property or assets.
(e) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other
Person on the part of Shareholder is required in connection with the valid execution and delivery of this Agreement. No consent of Shareholders spouse is necessary under any community property or other laws in order for Shareholder
to enter into and perform its obligations under this Agreement.
3. Agreement to Vote Shares; Irrevocable Proxy.
(a) Shareholder agrees during the term of this Agreement to vote the Shares, and to cause any holder of record of Shares to
vote: (i) in favor of the Merger and the Merger Agreement, at every meeting of the shareholders of the Company at which such matters are considered and at every adjournment or postponement thereof; (ii) against (1) any Takeover
Proposal, (2) any action, proposal, transaction or agreement which could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or
of Shareholder under this Agreement and (3) any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Merger or the
fulfillment of Parents, the Companys or Merger Subs conditions under the Merger Agreement or change in any manner the voting rights of any class of shares of the Company (including any amendments to the Charter Documents of the
Company).
(b) Shareholder hereby appoints Parent and any designee of Parent, and each of them individually, its proxies
and attorneys-in-fact, with full power of substitution and resubstitution, to vote during the term of this Agreement with respect to the Shares in accordance with Section 3(a). This proxy and power of attorney is given to secure the
performance of the duties of Shareholder under this Agreement. Shareholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. This proxy and power of attorney granted by
Shareholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by Shareholder with respect to
the Shares. The power of attorney granted by Shareholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Shareholder. The proxy and power of attorney granted hereunder shall terminate upon
the termination of this Agreement.
2
4. No Voting Trusts or Other Arrangement. Shareholder agrees that Shareholder will not,
and will not permit any entity under Shareholders control to, deposit any of the Shares in a voting trust, grant any proxies with respect to the Shares or subject any of the Shares to any arrangement with respect to the voting of the Shares
other than agreements entered into with Parent.
5. Transfer and Encumbrance. Shareholder agrees that during the term of this
Agreement, Shareholder will not, directly or indirectly, transfer, sell, offer, exchange, assign, pledge or otherwise dispose of or encumber (Transfer) any of the Shares or enter into any contract, option or other agreement with
respect to, or consent to, a Transfer of, any of the Shares or Shareholders voting or economic interest therein. Any attempted Transfer of Shares or any interest therein in violation of this Section 5 shall be null and void. This
Section 5 shall not prohibit a Transfer of the Shares by Shareholder to any member of Shareholders immediate family, or to a trust for the benefit of Shareholder or any member of Shareholders immediate family, or upon the
death of Shareholder; provided, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Parent, to be
bound by all of the terms of this Agreement.
6. Additional Shares. Shareholder agrees that all shares of Company Stock that
Shareholder purchases, acquires the right to vote or otherwise acquires beneficial ownership (as defined in Rule 13d-3 under the Exchange Act, but excluding shares of Company Stock underlying unexercised Derivative Securities) of after the execution
of this Agreement shall be subject to the terms of this Agreement and shall constitute Shares for all purposes of this Agreement.
7.
Termination. This Agreement shall terminate upon the earliest to occur of (i) the Effective Time and (ii) the date on which the Merger Agreement is terminated in accordance with its terms.
8. No Agreement as Director or Officer. Shareholder makes no agreement or understanding in this Agreement in Shareholders capacity
as a director or officer of the Company or any of its Subsidiaries (if Shareholder holds such office), and nothing in this Agreement: (a) will limit or affect any actions or omissions taken by Shareholder in Shareholders capacity as such
a director or officer, including in exercising rights under the Merger Agreement, and no such actions or omissions shall be deemed a breach of this Agreement or (b) will be construed to prohibit, limit or restrict Shareholder from exercising
Shareholders fiduciary duties as an officer or director to the Company or its Shareholders.
9. Specific Performance. Each
party hereto acknowledges that it will be impossible to measure in money the damage to the other party if a party hereto fails to comply with any of the obligations imposed by this Agreement, that every such obligation is material and that, in the
event of any such failure, the other party will not have an adequate remedy at law or damages. Accordingly, each party hereto agrees that injunctive relief or other equitable remedy, in addition to remedies at law or damages, is the appropriate
remedy for any such failure and will not oppose the seeking of such relief on the basis that the other party has an adequate remedy at law. Each party hereto agrees that it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with the other partys seeking or obtaining such equitable relief.
3
10. Entire Agreement. This Agreement supersedes all prior agreements, written or oral,
between the parties hereto with respect to the subject matter hereof and contains the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not be amended or supplemented, and no provisions hereof may be
modified or waived, except by an instrument in writing signed by both of the parties hereto. No waiver of any provisions hereof by either party shall be deemed a waiver of any other provisions hereof by such party, nor shall any such waiver be
deemed a continuing waiver of any provision hereof by such party.
11. Notices. All notices, requests, claims, demands, and other
communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier
(receipt requested), (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of
the recipient, or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other
address for a party as shall be specified in a notice given in accordance with this Section 11):
If to Parent or Merger Sub,
addressed to it at:
Hecla Mining Company
6500 N. Mineral Drive,
Suite 200
Coeur dAlene, Idaho 83815-9408
Attention: David Sienko
Facsimile: (208) 209-1278
Email: dsienko@hecla-mining.com
with a mandated copy (which shall not constitute notice) to:
K&L Gates LLP
70 West
Madison Street, Suite 3100
Chicago, IL 60602-4207
Attention: J. Craig Walker
Facsimile: (312) 827-8179
Email: craig.walker@klgates.com
If to Shareholder, to the address or facsimile number set forth for Shareholder on the signature page hereof.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.
(b) Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the
rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party
4
hereto or its successors or assigns shall be brought and determined exclusively in the district court of the State of Idaho, or in the event (but only in the event) that such court does not have
subject matter jurisdiction over such action or proceeding, in the federal courts of the United States of America located in the State of Idaho. Each of the parties hereto agrees that mailing of process or other papers in connection with any such
action or proceeding in the manner provided in Section 11 or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof. Each of the parties hereto hereby irrevocably submits with regard to
any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the
transactions contemplated by this Agreement in any court or tribunal other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any
action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder (i) any claim
that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve process in accordance with this Section 12(b), (ii) any claim that it or its property is exempt or immune
from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and
(iii) to the fullest extent permitted by the applicable Law, any claim that (x) the suit, action or proceeding in such court is brought in an inconvenient forum, (y) the venue of such suit, action or proceeding is improper, or
(z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(c) EACH PARTY
ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER
VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(C).
(d) If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is
invalid, illegal or unenforceable, the parties hereto
5
shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(e) This Agreement may be
executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
(f) Each party hereto shall execute and deliver such additional documents as may be necessary or desirable to effect the
transactions contemplated by this Agreement.
(g) All Section headings herein are for convenience of reference only and are
not part of this Agreement, and no construction or reference shall be derived therefrom.
(h) The obligations of
Shareholder set forth in this Agreement shall not be effective or binding upon Shareholder until after such time as the Merger Agreement is executed and delivered by the Company, Parent and Merger Sub, and the parties agree that there is not and has
not been any other agreement, arrangement or understanding between the parties hereto with respect to the matters set forth herein.
(i) Neither party to this Agreement may assign any of its rights or obligations under this Agreement without the prior written
consent of the other party hereto, except that Parent may assign, in its sole discretion, all or any of its rights, interests and obligations hereunder to any of its Affiliates. Any assignment contrary to the provisions of this
Section 12(i) shall be null and void.
[SIGNATURE PAGE FOLLOWS]
6
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written
above.
|
|
|
HECLA MINING COMPANY |
|
|
By: |
|
/s/ David C. Sienko |
Name: |
|
David C. Sienko |
Title: |
|
Vice President & General Counsel |
|
John G. Shanahan |
|
|
By: |
|
/s/ John G. Shanahan |
Name: John G. Shanahan |
Title: President/CEO, Revett Mining Company |
|
Number of Shares of Company Stock
Beneficially Owned as of the Date of this Agreement:
584,687 |
|
Number of Derivative Securities
Beneficially Owned as of the Date of this Agreement:
64,102 |
|
Street Address: 25 Old Hill Farms Rd.
City/State/Zip Code: Westport, CT 06880 Phone:
917-921-1983 |
7
Exhibit 5
Form of
Shareholders
Agreement
This Shareholders Agreement (this Agreement), dated as of March 26, 2015, is between the undersigned
shareholder (Shareholder) of Revett Mining Company, Inc., a Delaware corporation (the Company), and Hecla Mining Company, a Delaware corporation (Parent).
WHEREAS, concurrently with or following the execution of this Agreement, the Company, Parent, and RHL Holdings, Inc., a Delaware corporation
and wholly-owned subsidiary of Parent (Merger Sub), have entered, or will enter, into an Agreement and Plan of Merger (as the same may be amended from time to time, the Merger Agreement), providing for, among
other things, the merger (the Merger) of Merger Sub into the Company pursuant to the terms and conditions of the Merger Agreement;
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has required that Shareholder execute and deliver this
Agreement; and
WHEREAS, in order to induce Parent to enter into the Merger Agreement, Shareholder is willing to make certain
representations, warranties, covenants and agreements with respect to the shares of common stock, par value $0.01 per share, of the Company (Company Stock) beneficially owned by Shareholder and set forth below Shareholders
signature on the signature page hereto (the Original Shares and, together with any additional shares of Company Stock Shareholder purchases or acquires as described in Section 6, the Shares).
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, sufficiency and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, capitalized terms
used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.
2. Representations of
Shareholder. Shareholder represents and warrants to Parent that:
(a) (i) Shareholder owns beneficially (as such term
is defined in Rule 13d-3 under the Exchange Act), all of the Original Shares free and clear of all Liens, and (ii) except pursuant hereto, there are no options, warrants or other rights, agreements, arrangements or commitments of any character
to which Shareholder is a party relating to the pledge, disposition or voting of any of the Original Shares and there are no voting trusts or voting agreements with respect to the Original Shares.
(b) Shareholder does not beneficially own any shares of Company Stock other than (i) the Original Shares and (ii) any
options, warrants or other rights to acquire any additional shares of Company Stock or any security exercisable for or convertible into shares of Company Stock, set forth on the signature page of this Agreement (collectively, Derivative
Securities.
(c) Shareholder has full power and authority and legal capacity to enter into, execute and deliver
this Agreement and to perform fully Shareholders obligations hereunder (including the proxy described in Section 3(b) below)). This Agreement has been duly and validly executed and delivered by Shareholder and constitutes the
legal, valid and binding obligation of Shareholder, enforceable against Shareholder in accordance with its terms.
(d) None of the execution and delivery of this Agreement by Shareholder, the
consummation by Shareholder of the transactions contemplated hereby, or compliance by Shareholder with any of the provisions hereof will conflict with or result in a breach, or constitute a default (with or without notice of lapse of time or both)
under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or Law applicable to Shareholder or to Shareholders property or assets.
(e) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other
Person on the part of Shareholder is required in connection with the valid execution and delivery of this Agreement. No consent of Shareholders spouse is necessary under any community property or other laws in order for Shareholder
to enter into and perform its obligations under this Agreement.
3. Agreement to Vote Shares; Irrevocable Proxy.
(a) Shareholder agrees during the term of this Agreement to vote the Shares, and to cause any holder of record of Shares to
vote: (i) in favor of the Merger and the Merger Agreement, at every meeting of the shareholders of the Company at which such matters are considered and at every adjournment or postponement thereof; (ii) against (1) any Takeover
Proposal, (2) any action, proposal, transaction or agreement which could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or
of Shareholder under this Agreement and (3) any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Merger or the
fulfillment of Parents, the Companys or Merger Subs conditions under the Merger Agreement or change in any manner the voting rights of any class of shares of the Company (including any amendments to the Charter Documents of the
Company).
(b) Shareholder hereby appoints Parent and any designee of Parent, and each of them individually, its proxies
and attorneys-in-fact, with full power of substitution and resubstitution, to vote during the term of this Agreement with respect to the Shares in accordance with Section 3(a). This proxy and power of attorney is given to secure the
performance of the duties of Shareholder under this Agreement. Shareholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. This proxy and power of attorney granted by
Shareholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by Shareholder with respect to
the Shares. The power of attorney granted by Shareholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Shareholder. The proxy and power of attorney granted hereunder shall terminate upon
the termination of this Agreement.
2
4. No Voting Trusts or Other Arrangement. Shareholder agrees that Shareholder will not,
and will not permit any entity under Shareholders control to, deposit any of the Shares in a voting trust, grant any proxies with respect to the Shares or subject any of the Shares to any arrangement with respect to the voting of the Shares
other than agreements entered into with Parent.
5. Transfer and Encumbrance. Shareholder agrees that during the term of this
Agreement, Shareholder will not, directly or indirectly, transfer, sell, offer, exchange, assign, pledge or otherwise dispose of or encumber (Transfer) any of the Shares or enter into any contract, option or other agreement with
respect to, or consent to, a Transfer of, any of the Shares or Shareholders voting or economic interest therein. Any attempted Transfer of Shares or any interest therein in violation of this Section 5 shall be null and void. This
Section 5 shall not prohibit a Transfer of the Shares by Shareholder to any member of Shareholders immediate family, or to a trust for the benefit of Shareholder or any member of Shareholders immediate family, or upon the
death of Shareholder; provided, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Parent, to be
bound by all of the terms of this Agreement.
6. Additional Shares. Shareholder agrees that all shares of Company Stock that
Shareholder purchases, acquires the right to vote or otherwise acquires beneficial ownership (as defined in Rule 13d-3 under the Exchange Act, but excluding shares of Company Stock underlying unexercised Derivative Securities) of after the execution
of this Agreement shall be subject to the terms of this Agreement and shall constitute Shares for all purposes of this Agreement.
7.
Termination. This Agreement shall terminate upon the earliest to occur of (i) the Effective Time and (ii) the date on which the Merger Agreement is terminated in accordance with its terms.
8. No Agreement as Director or Officer. Shareholder makes no agreement or understanding in this Agreement in Shareholders capacity
as a director or officer of the Company or any of its Subsidiaries (if Shareholder holds such office), and nothing in this Agreement: (a) will limit or affect any actions or omissions taken by Shareholder in Shareholders capacity as such
a director or officer, including in exercising rights under the Merger Agreement, and no such actions or omissions shall be deemed a breach of this Agreement or (b) will be construed to prohibit, limit or restrict Shareholder from exercising
Shareholders fiduciary duties as an officer or director to the Company or its Shareholders.
9. Specific Performance. Each
party hereto acknowledges that it will be impossible to measure in money the damage to the other party if a party hereto fails to comply with any of the obligations imposed by this Agreement, that every such obligation is material and that, in the
event of any such failure, the other party will not have an adequate remedy at law or damages. Accordingly, each party hereto agrees that injunctive relief or other equitable remedy, in addition to remedies at law or damages, is the appropriate
remedy for any such failure and will not oppose the seeking of such relief on the basis that the other party has an adequate remedy at law. Each party hereto agrees that it will not seek, and agrees to waive any requirement for, the securing or
posting of a bond in connection with the other partys seeking or obtaining such equitable relief.
10. Entire Agreement. This
Agreement supersedes all prior agreements, written or oral, between the parties hereto with respect to the subject matter hereof and contains the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not
3
be amended or supplemented, and no provisions hereof may be modified or waived, except by an instrument in writing signed by both of the parties hereto. No waiver of any provisions hereof by
either party shall be deemed a waiver of any other provisions hereof by such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof by such party.
11. Notices. All notices, requests, claims, demands, and other communications hereunder shall be in writing and shall be deemed to have
been given (a) when delivered by hand (with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested), (c) on the date sent by facsimile or e-mail of
a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient, or (d) on the third day after the date mailed, by
certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in
accordance with this Section 11):
If to Parent or Merger Sub, addressed to it at:
Hecla Mining Company
6500 N.
Mineral Drive, Suite 200
Coeur dAlene, Idaho 83815-9408
Attention: David Sienko
Facsimile: (208) 209-1278
Email: dsienko@hecla-mining.com
with a mandated copy (which shall not constitute notice) to:
K&L Gates LLP
70 West
Madison Street, Suite 3100
Chicago, IL 60602-4207
Attention: J. Craig Walker
Facsimile: (312) 827-8179
Email:
craig.walker@klgates.com
If to Shareholder, to the address or facsimile number set forth for Shareholder on the signature page hereof.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.
(b) Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the
rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party
4
hereto or its successors or assigns shall be brought and determined exclusively in the district court of the State of Idaho, or in the event (but only in the event) that such court does not have
subject matter jurisdiction over such action or proceeding, in the federal courts of the United States of America located in the State of Idaho. Each of the parties hereto agrees that mailing of process or other papers in connection with any such
action or proceeding in the manner provided in Section 11 or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof. Each of the parties hereto hereby irrevocably submits with regard to
any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the
transactions contemplated by this Agreement in any court or tribunal other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any
action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder (i) any claim
that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve process in accordance with this Section 12(b), (ii) any claim that it or its property is exempt or immune
from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and
(iii) to the fullest extent permitted by the applicable Law, any claim that (x) the suit, action or proceeding in such court is brought in an inconvenient forum, (y) the venue of such suit, action or proceeding is improper, or
(z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(c) EACH PARTY
ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER
VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(C).
(d) If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is
invalid, illegal or unenforceable, the parties hereto
5
shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(e) This Agreement may be
executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
(f) Each party hereto shall execute and deliver such additional documents as may be necessary or desirable to effect the
transactions contemplated by this Agreement.
(g) All Section headings herein are for convenience of reference only and are
not part of this Agreement, and no construction or reference shall be derived therefrom.
(h) The obligations of
Shareholder set forth in this Agreement shall not be effective or binding upon Shareholder until after such time as the Merger Agreement is executed and delivered by the Company, Parent and Merger Sub, and the parties agree that there is not and has
not been any other agreement, arrangement or understanding between the parties hereto with respect to the matters set forth herein.
(i) Neither party to this Agreement may assign any of its rights or obligations under this Agreement without the prior written
consent of the other party hereto, except that Parent may assign, in its sole discretion, all or any of its rights, interests and obligations hereunder to any of its Affiliates. Any assignment contrary to the provisions of this
Section 12(i) shall be null and void.
[SIGNATURE PAGE FOLLOWS]
6
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written
above.
|
|
|
HECLA MINING COMPANY |
|
|
By: |
|
/s/ David C. Sienko |
Name: |
|
David C. Sienko |
Title: |
|
Vice President & General Counsel |
|
|
|
Timothy R. Lindsey |
|
|
By: |
|
/s/ Timothy R. Lindsey |
Name: |
|
Timothy R. Lindsey |
Title: |
|
Director/Chairman of the Board |
|
|
|
Number of Shares of Company Stock
Beneficially Owned as of the Date of this Agreement:
1,167,453 |
|
Number of Derivative Securities
Beneficially Owned as of the Date of this Agreement:
160,256 |
|
Street Address: 18331 Langsbury Dr.
City/State/Zip Code: Houston, TX 77084 Phone:
281-253-4576 |
|
|
7
Exhibit 6
Form of
Shareholders
Agreement
This Shareholders Agreement (this Agreement), dated as of March 26, 2015, is between the
undersigned shareholder (Shareholder) of Revett Mining Company, Inc., a Delaware corporation (the Company), and Hecla Mining Company, a Delaware corporation (Parent).
WHEREAS, concurrently with or following the execution of this Agreement, the Company, Parent, and RHL Holdings, Inc., a Delaware corporation
and wholly-owned subsidiary of Parent (Merger Sub), have entered, or will enter, into an Agreement and Plan of Merger (as the same may be amended from time to time, the Merger Agreement), providing for, among
other things, the merger (the Merger) of Merger Sub into the Company pursuant to the terms and conditions of the Merger Agreement;
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has required that Shareholder execute and deliver this
Agreement; and
WHEREAS, in order to induce Parent to enter into the Merger Agreement, Shareholder is willing to make certain
representations, warranties, covenants and agreements with respect to the shares of common stock, par value $0.01 per share, of the Company (Company Stock) beneficially owned by Shareholder and set forth below Shareholders
signature on the signature page hereto (the Original Shares and, together with any additional shares of Company Stock Shareholder purchases or acquires as described in Section 6, the Shares).
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, sufficiency and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, capitalized terms
used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.
2. Representations of
Shareholder. Shareholder represents and warrants to Parent that:
(a) (i) Shareholder owns beneficially (as such term
is defined in Rule 13d-3 under the Exchange Act), all of the Original Shares free and clear of all Liens, and (ii) except pursuant hereto, there are no options, warrants or other rights, agreements, arrangements or commitments of any character
to which Shareholder is a party relating to the pledge, disposition or voting of any of the Original Shares and there are no voting trusts or voting agreements with respect to the Original Shares.
(b) Shareholder does not beneficially own any shares of Company Stock other than (i) the Original Shares.
(c) Shareholder has full power and authority and legal capacity to enter into, execute and deliver this Agreement and to
perform fully Shareholders obligations hereunder (including the proxy described in Section 3(b) below)). This Agreement has been duly and validly executed and delivered by Shareholder and constitutes the legal, valid and binding
obligation of Shareholder, enforceable against Shareholder in accordance with its terms.
(d) None of the execution and delivery of this Agreement by Shareholder, the
consummation by Shareholder of the transactions contemplated hereby, or compliance by Shareholder with any of the provisions hereof will conflict with or result in a breach, or constitute a default (with or without notice of lapse of time or both)
under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or Law applicable to Shareholder or to Shareholders property or assets.
(e) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other
Person on the part of Shareholder is required in connection with the valid execution and delivery of this Agreement. No consent of Shareholders spouse is necessary under any community property or other laws in order for Shareholder
to enter into and perform its obligations under this Agreement.
3. Agreement to Vote Shares; Irrevocable Proxy.
(a) Shareholder agrees during the term of this Agreement to vote the Shares, and to cause any holder of record of Shares to
vote: (i) in favor of the Merger and the Merger Agreement, at every meeting of the shareholders of the Company at which such matters are considered and at every adjournment or postponement thereof; (ii) against (1) any Takeover
Proposal, (2) any action, proposal, transaction or agreement which could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or
of Shareholder under this Agreement and (3) any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Merger or the
fulfillment of Parents, the Companys or Merger Subs conditions under the Merger Agreement or change in any manner the voting rights of any class of shares of the Company (including any amendments to the Charter Documents of the
Company).
(b) Shareholder hereby appoints Parent and any designee of Parent, and each of them individually, its proxies
and attorneys-in-fact, with full power of substitution and resubstitution, to vote during the term of this Agreement with respect to the Shares in accordance with Section 3(a). This proxy and power of attorney is given to secure the
performance of the duties of Shareholder under this Agreement. Shareholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. This proxy and power of attorney granted by
Shareholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by Shareholder with respect to
the Shares. The power of attorney granted by Shareholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Shareholder. The proxy and power of attorney granted hereunder shall terminate upon
the termination of this Agreement.
4. No Voting Trusts or Other Arrangement. Shareholder agrees that Shareholder will not, and will
not permit any entity under Shareholders control to, deposit any of the Shares in a voting trust, grant any proxies with respect to the Shares or subject any of the Shares to any arrangement with respect to the voting of the Shares other than
agreements entered into with Parent.
2
5. Transfer and Encumbrance. Shareholder agrees that during the term of this Agreement,
Shareholder will not, directly or indirectly, transfer, sell, offer, exchange, assign, pledge or otherwise dispose of or encumber (Transfer) any of the Shares or enter into any contract, option or other agreement with respect to,
or consent to, a Transfer of, any of the Shares or Shareholders voting or economic interest therein. Any attempted Transfer of Shares or any interest therein in violation of this Section 5 shall be null and void. This
Section 5 shall not prohibit a Transfer of the Shares by Shareholder to any member of Shareholders immediate family, or to a trust for the benefit of Shareholder or any member of Shareholders immediate family, or upon the
death of Shareholder; provided, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Parent, to be
bound by all of the terms of this Agreement.
6. Additional Shares. Shareholder agrees that all shares of Company Stock that
Shareholder purchases, acquires the right to vote or otherwise acquires beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of after the execution of this Agreement shall be subject to the terms of this Agreement and shall
constitute Shares for all purposes of this Agreement.
7. Termination. This Agreement shall terminate upon the earliest to occur of
(i) the Effective Time and (ii) the date on which the Merger Agreement is terminated in accordance with its terms.
8. No
Agreement as Director or Officer. Shareholder makes no agreement or understanding in this Agreement in Shareholders capacity as a director or officer of the Company or any of its Subsidiaries (if Shareholder holds such office), and nothing
in this Agreement: (a) will limit or affect any actions or omissions taken by Shareholder in Shareholders capacity as such a director or officer, including in exercising rights under the Merger Agreement, and no such actions or omissions
shall be deemed a breach of this Agreement or (b) will be construed to prohibit, limit or restrict Shareholder from exercising Shareholders fiduciary duties as an officer or director to the Company or its Shareholders.
9. Specific Performance. Each party hereto acknowledges that it will be impossible to measure in money the damage to the other party if
a party hereto fails to comply with any of the obligations imposed by this Agreement, that every such obligation is material and that, in the event of any such failure, the other party will not have an adequate remedy at law or damages. Accordingly,
each party hereto agrees that injunctive relief or other equitable remedy, in addition to remedies at law or damages, is the appropriate remedy for any such failure and will not oppose the seeking of such relief on the basis that the other party has
an adequate remedy at law. Each party hereto agrees that it will not seek, and agrees to waive any requirement for, the securing or posting of a bond in connection with the other partys seeking or obtaining such equitable relief.
10. Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the parties hereto with respect to the
subject matter hereof and contains the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not be amended or supplemented, and no provisions hereof may be modified or waived, except by an instrument in
writing signed by both of the parties hereto. No waiver of any provisions hereof by either party shall be deemed a waiver of any other provisions hereof by such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof
by such party.
3
11. Notices. All notices, requests, claims, demands, and other communications hereunder
shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested),
(c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient, or
(d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party
as shall be specified in a notice given in accordance with this Section 11):
If to Parent or Merger Sub, addressed to it at:
Hecla Mining Company
6500
N. Mineral Drive, Suite 200
Coeur dAlene, Idaho 83815-9408
Attention: David Sienko
Facsimile: (208) 209-1278
Email: dsienko@hecla-mining.com
with a mandated copy (which shall not constitute notice) to:
K&L Gates LLP
70 West
Madison Street, Suite 3100
Chicago, IL 60602-4207
Attention: J. Craig Walker
Facsimile: (312) 827-8179
Email: craig.walker@klgates.com
If to Shareholder, to the address or facsimile number set forth for Shareholder on the signature page hereof.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.
(b) Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the
rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns shall be
brought and determined exclusively in the district court of the State of Idaho, or in the event (but only in the event) that such court
4
does not have subject matter jurisdiction over such action or proceeding, in the federal courts of the United States of America located in the State of Idaho. Each of the parties hereto agrees
that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 11 or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof.
Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will
not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court or tribunal other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by
way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and
the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve process in accordance with this Section 12(b),
(ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise), and (iii) to the fullest extent permitted by the applicable Law, any claim that (x) the suit, action or proceeding in such court is brought in an inconvenient forum, (y) the venue of
such suit, action or proceeding is improper, or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER
IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(C).
(d) If any term or provision of this Agreement is invalid,
illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon
such determination that any term or other provision is invalid, illegal or unenforceable, 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 a
mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
5
(e) This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one and the same instrument.
(f) Each party
hereto shall execute and deliver such additional documents as may be necessary or desirable to effect the transactions contemplated by this Agreement.
(g) All Section headings herein are for convenience of reference only and are not part of this Agreement, and no construction
or reference shall be derived therefrom.
(h) The obligations of Shareholder set forth in this Agreement shall not be
effective or binding upon Shareholder until after such time as the Merger Agreement is executed and delivered by the Company, Parent and Merger Sub, and the parties agree that there is not and has not been any other agreement, arrangement or
understanding between the parties hereto with respect to the matters set forth herein.
(i) Neither party to this Agreement
may assign any of its rights or obligations under this Agreement without the prior written consent of the other party hereto, except that Parent may assign, in its sole discretion, all or any of its rights, interests and obligations hereunder to any
of its Affiliates. Any assignment contrary to the provisions of this Section 12(i) shall be null and void.
[SIGNATURE PAGE
FOLLOWS]
6
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written
above.
|
|
|
HECLA MINING COMPANY |
|
|
By: |
|
/s/ David C. Sienko |
Name: |
|
David C. Sienko |
Title: |
|
Vice President & General Counsel |
|
Kenneth S. Eickerman |
|
|
By: |
|
/s/ Kenneth S. Eickerman |
Name: Kenneth S. Eickerman Title:
CFO, Revett Mining Company |
|
Number of Shares of Company Stock
Beneficially Owned as of the Date of this Agreement:
12,278 |
|
Street Address: 6717 Mayflower Rd.
City/State/Zip Code: Spokane, WA 99224 Phone:
509-921-2294 |
7
Exhibit 7
Form of
Shareholders
Agreement
This Shareholders Agreement (this Agreement), dated as of March 26, 2015, is between the
undersigned shareholder (Shareholder) of Revett Mining Company, Inc., a Delaware corporation (the Company), and Hecla Mining Company, a Delaware corporation (Parent).
WHEREAS, concurrently with or following the execution of this Agreement, the Company, Parent, and RHL Holdings, Inc., a Delaware corporation
and wholly-owned subsidiary of Parent (Merger Sub), have entered, or will enter, into an Agreement and Plan of Merger (as the same may be amended from time to time, the Merger Agreement), providing for, among
other things, the merger (the Merger) of Merger Sub into the Company pursuant to the terms and conditions of the Merger Agreement;
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has required that Shareholder execute and deliver this
Agreement; and
WHEREAS, in order to induce Parent to enter into the Merger Agreement, Shareholder is willing to make certain
representations, warranties, covenants and agreements with respect to the shares of common stock, par value $0.01 per share, of the Company (Company Stock) beneficially owned by Shareholder and set forth below Shareholders
signature on the signature page hereto (the Original Shares and, together with any additional shares of Company Stock Shareholder purchases or acquires as described in Section 6, the Shares).
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, sufficiency and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, capitalized terms
used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.
2. Representations of
Shareholder. Shareholder represents and warrants to Parent that:
(a) (i) Shareholder owns beneficially (as such term
is defined in Rule 13d-3 under the Exchange Act), all of the Original Shares free and clear of all Liens, and (ii) except pursuant hereto, there are no options, warrants or other rights, agreements, arrangements or commitments of any character
to which Shareholder is a party relating to the pledge, disposition or voting of any of the Original Shares and there are no voting trusts or voting agreements with respect to the Original Shares.
(b) Shareholder does not beneficially own any shares of Company Stock other than (i) the Original Shares.
(c) Shareholder has full power and authority and legal capacity to enter into, execute and deliver this Agreement and to
perform fully Shareholders obligations hereunder (including the proxy described in Section 3(b) below)). This Agreement has been duly and validly executed and delivered by Shareholder and constitutes the legal, valid and binding
obligation of Shareholder, enforceable against Shareholder in accordance with its terms.
(d) None of the execution and delivery of this Agreement by Shareholder, the
consummation by Shareholder of the transactions contemplated hereby, or compliance by Shareholder with any of the provisions hereof will conflict with or result in a breach, or constitute a default (with or without notice of lapse of time or both)
under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or Law applicable to Shareholder or to Shareholders property or assets.
(e) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other
Person on the part of Shareholder is required in connection with the valid execution and delivery of this Agreement. No consent of Shareholders spouse is necessary under any community property or other laws in order for Shareholder
to enter into and perform its obligations under this Agreement.
3. Agreement to Vote Shares; Irrevocable Proxy.
(a) Shareholder agrees during the term of this Agreement to vote the Shares, and to cause any holder of record of Shares to
vote: (i) in favor of the Merger and the Merger Agreement, at every meeting of the shareholders of the Company at which such matters are considered and at every adjournment or postponement thereof; (ii) against (1) any Takeover Proposal,
(2) any action, proposal, transaction or agreement which could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or of
Shareholder under this Agreement and (3) any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Merger or the
fulfillment of Parents, the Companys or Merger Subs conditions under the Merger Agreement or change in any manner the voting rights of any class of shares of the Company (including any amendments to the Charter Documents of the
Company).
(b) Shareholder hereby appoints Parent and any designee of Parent, and each of them individually, its proxies
and attorneys-in-fact, with full power of substitution and resubstitution, to vote during the term of this Agreement with respect to the Shares in accordance with Section 3(a). This proxy and power of attorney is given to secure the
performance of the duties of Shareholder under this Agreement. Shareholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. This proxy and power of attorney granted by
Shareholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by Shareholder with respect to
the Shares. The power of attorney granted by Shareholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Shareholder. The proxy and power of attorney granted hereunder shall terminate upon
the termination of this Agreement.
4. No Voting Trusts or Other Arrangement. Shareholder agrees that Shareholder will not, and
will not permit any entity under Shareholders control to, deposit any of the Shares in a voting trust, grant any proxies with respect to the Shares or subject any of the Shares to any arrangement with respect to the voting of the Shares other
than agreements entered into with Parent.
2
5. Transfer and Encumbrance. Shareholder agrees that during the term of this Agreement,
Shareholder will not, directly or indirectly, transfer, sell, offer, exchange, assign, pledge or otherwise dispose of or encumber (Transfer) any of the Shares or enter into any contract, option or other agreement with respect to,
or consent to, a Transfer of, any of the Shares or Shareholders voting or economic interest therein. Any attempted Transfer of Shares or any interest therein in violation of this Section 5 shall be null and void. This
Section 5 shall not prohibit a Transfer of the Shares by Shareholder to any member of Shareholders immediate family, or to a trust for the benefit of Shareholder or any member of Shareholders immediate family, or upon the
death of Shareholder; provided, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Parent, to be
bound by all of the terms of this Agreement.
6. Additional Shares. Shareholder agrees that all shares of Company Stock that
Shareholder purchases, acquires the right to vote or otherwise acquires beneficial ownership (as defined in Rule 13d-3 under the Exchange Act of after the execution of this Agreement shall be subject to the terms of this Agreement and shall
constitute Shares for all purposes of this Agreement.
7. Termination. This Agreement shall terminate upon the earliest to occur of
(i) the Effective Time and (ii) the date on which the Merger Agreement is terminated in accordance with its terms.
8. No
Agreement as Director or Officer. Shareholder makes no agreement or understanding in this Agreement in Shareholders capacity as a director or officer of the Company or any of its Subsidiaries (if Shareholder holds such office), and nothing
in this Agreement: (a) will limit or affect any actions or omissions taken by Shareholder in Shareholders capacity as such a director or officer, including in exercising rights under the Merger Agreement, and no such actions or omissions
shall be deemed a breach of this Agreement or (b) will be construed to prohibit, limit or restrict Shareholder from exercising Shareholders fiduciary duties as an officer or director to the Company or its Shareholders.
9. Specific Performance. Each party hereto acknowledges that it will be impossible to measure in money the damage to the other party if
a party hereto fails to comply with any of the obligations imposed by this Agreement, that every such obligation is material and that, in the event of any such failure, the other party will not have an adequate remedy at law or damages. Accordingly,
each party hereto agrees that injunctive relief or other equitable remedy, in addition to remedies at law or damages, is the appropriate remedy for any such failure and will not oppose the seeking of such relief on the basis that the other party has
an adequate remedy at law. Each party hereto agrees that it will not seek, and agrees to waive any requirement for, the securing or posting of a bond in connection with the other partys seeking or obtaining such equitable relief.
10. Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the parties hereto with respect to the
subject matter hereof and contains the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not be amended or supplemented, and no provisions hereof may be modified or waived, except by an instrument in
writing signed by both of the parties hereto. No waiver of any provisions hereof by either party shall be deemed a waiver of any other provisions hereof by such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof
by such party.
3
11. Notices. All notices, requests, claims, demands, and other communications hereunder
shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested),
(c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient, or
(d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party
as shall be specified in a notice given in accordance with this Section 11):
If to Parent or Merger Sub, addressed to it at:
Hecla Mining Company
6500
N. Mineral Drive, Suite 200
Coeur dAlene, Idaho 83815-9408
Attention: David Sienko
Facsimile: (208) 209-1278
Email: dsienko@hecla-mining.com
with a mandated copy (which shall not constitute notice) to:
K&L Gates LLP
70 West
Madison Street, Suite 3100
Chicago, IL 60602-4207
Attention: J. Craig Walker
Facsimile: (312) 827-8179
Email: craig.walker@klgates.com
If to Shareholder, to the address or facsimile number set forth for Shareholder on the signature page hereof.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.
(b) Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the
rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns shall be
brought and determined exclusively in the district court of the State of Idaho, or in the event (but only in the event) that such court
4
does not have subject matter jurisdiction over such action or proceeding, in the federal courts of the United States of America located in the State of Idaho. Each of the parties hereto agrees
that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 11 or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof.
Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will
not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court or tribunal other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by
way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and
the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve process in accordance with this Section 12(b),
(ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise), and (iii) to the fullest extent permitted by the applicable Law, any claim that (x) the suit, action or proceeding in such court is brought in an inconvenient forum, (y) the venue of
such suit, action or proceeding is improper, or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER
IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(C).
(d) If any term or provision of this Agreement is invalid,
illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon
such determination that any term or other provision is invalid, illegal or unenforceable, 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 a
mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
5
(e) This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one and the same instrument.
(f) Each party
hereto shall execute and deliver such additional documents as may be necessary or desirable to effect the transactions contemplated by this Agreement.
(g) All Section headings herein are for convenience of reference only and are not part of this Agreement, and no construction
or reference shall be derived therefrom.
(h) The obligations of Shareholder set forth in this Agreement shall not be
effective or binding upon Shareholder until after such time as the Merger Agreement is executed and delivered by the Company, Parent and Merger Sub, and the parties agree that there is not and has not been any other agreement, arrangement or
understanding between the parties hereto with respect to the matters set forth herein.
(i) Neither party to this
Agreement may assign any of its rights or obligations under this Agreement without the prior written consent of the other party hereto, except that Parent may assign, in its sole discretion, all or any of its rights, interests and obligations
hereunder to any of its Affiliates. Any assignment contrary to the provisions of this Section 12(i) shall be null and void.
[SIGNATURE PAGE FOLLOWS]
6
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written
above.
|
|
|
HECLA MINING COMPANY |
|
|
By: |
|
/s/ David C. Sienko |
Name: |
|
David C. Sienko |
Title: |
|
Vice President & General Counsel |
|
Douglas Miller |
|
|
By: |
|
/s/ Douglas Miller |
Name: Douglas Miller |
Title: Vice President of Operations |
|
Number of Shares of Company Stock
Beneficially Owned as of the Date of this Agreement:
6,666 |
|
Street Address: 630 Cabinet View Rd. |
City/State/Zip Code: Troy, MT 59935 |
Phone: (406) 295-5882 |
7
Exhibit 8
Form of
Shareholders
Agreement
This Shareholders Agreement (this Agreement), dated as of March 26, 2015, is between the undersigned
shareholder (Shareholder) of Revett Mining Company, Inc., a Delaware corporation (the Company), and Hecla Mining Company, a Delaware corporation (Parent).
WHEREAS, concurrently with or following the execution of this Agreement, the Company, Parent, and RHL Holdings, Inc., a Delaware corporation
and wholly-owned subsidiary of Parent (Merger Sub), have entered, or will enter, into an Agreement and Plan of Merger (as the same may be amended from time to time, the Merger Agreement), providing for, among
other things, the merger (the Merger) of Merger Sub into the Company pursuant to the terms and conditions of the Merger Agreement;
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has required that Shareholder execute and deliver this
Agreement; and
WHEREAS, in order to induce Parent to enter into the Merger Agreement, Shareholder is willing to make certain
representations, warranties, covenants and agreements with respect to the shares of common stock, par value $0.01 per share, of the Company (Company Stock) beneficially owned by Shareholder and set forth below Shareholders
signature on the signature page hereto (the Original Shares and, together with any additional shares of Company Stock Shareholder purchases or acquires as described in Section 6, the Shares).
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, sufficiency and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, capitalized terms
used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.
2. Representations of
Shareholder. Shareholder represents and warrants to Parent that:
(a) (i) Shareholder owns beneficially (as such term
is defined in Rule 13d-3 under the Exchange Act), all of the Original Shares free and clear of all Liens, and (ii) except pursuant hereto, there are no options, warrants or other rights, agreements, arrangements or commitments of any character
to which Shareholder is a party relating to the pledge, disposition or voting of any of the Original Shares and there are no voting trusts or voting agreements with respect to the Original Shares.
(b) Shareholder does not beneficially own any shares of Company Stock other than (i) the Original Shares.
(c) Shareholder has full power and authority and legal capacity to enter into, execute and deliver this Agreement and to
perform fully Shareholders obligations hereunder (including the proxy described in Section 3(b) below)). This Agreement has been duly and validly executed and delivered by Shareholder and constitutes the legal, valid and binding
obligation of Shareholder, enforceable against Shareholder in accordance with its terms.
(d) None of the execution and delivery of this Agreement by Shareholder, the
consummation by Shareholder of the transactions contemplated hereby, or compliance by Shareholder with any of the provisions hereof will conflict with or result in a breach, or constitute a default (with or without notice of lapse of time or both)
under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or Law applicable to Shareholder or to Shareholders property or assets.
(e) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other
Person on the part of Shareholder is required in connection with the valid execution and delivery of this Agreement. No consent of Shareholders spouse is necessary under any community property or other laws in order for Shareholder
to enter into and perform its obligations under this Agreement.
3. Agreement to Vote Shares; Irrevocable Proxy.
(a) Shareholder agrees during the term of this Agreement to vote the Shares, and to cause any holder of record of Shares to
vote: (i) in favor of the Merger and the Merger Agreement, at every meeting of the shareholders of the Company at which such matters are considered and at every adjournment or postponement thereof; (ii) against (1) any Takeover
Proposal, (2) any action, proposal, transaction or agreement which could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or
of Shareholder under this Agreement and (3) any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Merger or the
fulfillment of Parents, the Companys or Merger Subs conditions under the Merger Agreement or change in any manner the voting rights of any class of shares of the Company (including any amendments to the Charter Documents of the
Company).
(b) Shareholder hereby appoints Parent and any designee of Parent, and each of them individually, its proxies
and attorneys-in-fact, with full power of substitution and resubstitution, to vote during the term of this Agreement with respect to the Shares in accordance with Section 3(a). This proxy and power of attorney is given to secure the
performance of the duties of Shareholder under this Agreement. Shareholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. This proxy and power of attorney granted by
Shareholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by Shareholder with respect to
the Shares. The power of attorney granted by Shareholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Shareholder. The proxy and power of attorney granted hereunder shall terminate upon
the termination of this Agreement.
4. No Voting Trusts or Other Arrangement. Shareholder agrees that Shareholder will not, and will
not permit any entity under Shareholders control to, deposit any of the Shares in a voting trust, grant any proxies with respect to the Shares or subject any of the Shares to any arrangement with respect to the voting of the Shares other than
agreements entered into with Parent.
2
5. Transfer and Encumbrance. Shareholder agrees that during the term of this Agreement,
Shareholder will not, directly or indirectly, transfer, sell, offer, exchange, assign, pledge or otherwise dispose of or encumber (Transfer) any of the Shares or enter into any contract, option or other agreement with respect to,
or consent to, a Transfer of, any of the Shares or Shareholders voting or economic interest therein. Any attempted Transfer of Shares or any interest therein in violation of this Section 5 shall be null and void. This
Section 5 shall not prohibit a Transfer of the Shares by Shareholder to any member of Shareholders immediate family, or to a trust for the benefit of Shareholder or any member of Shareholders immediate family, or upon the
death of Shareholder; provided, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Parent, to be
bound by all of the terms of this Agreement.
6. Additional Shares. Shareholder agrees that all shares of Company Stock that
Shareholder purchases, acquires the right to vote or otherwise acquires beneficial ownership (as defined in Rule 13d-3 under the Exchange Act of after the execution of this Agreement shall be subject to the terms of this Agreement and shall
constitute Shares for all purposes of this Agreement.
7. Termination. This Agreement shall terminate upon the earliest to occur of
(i) the Effective Time and (ii) the date on which the Merger Agreement is terminated in accordance with its terms.
8. No
Agreement as Director or Officer. Shareholder makes no agreement or understanding in this Agreement in Shareholders capacity as a director or officer of the Company or any of its Subsidiaries (if Shareholder holds such office), and nothing
in this Agreement: (a) will limit or affect any actions or omissions taken by Shareholder in Shareholders capacity as such a director or officer, including in exercising rights under the Merger Agreement, and no such actions or omissions
shall be deemed a breach of this Agreement or (b) will be construed to prohibit, limit or restrict Shareholder from exercising Shareholders fiduciary duties as an officer or director to the Company or its Shareholders.
9. Specific Performance. Each party hereto acknowledges that it will be impossible to measure in money the damage to the other party if
a party hereto fails to comply with any of the obligations imposed by this Agreement, that every such obligation is material and that, in the event of any such failure, the other party will not have an adequate remedy at law or damages. Accordingly,
each party hereto agrees that injunctive relief or other equitable remedy, in addition to remedies at law or damages, is the appropriate remedy for any such failure and will not oppose the seeking of such relief on the basis that the other party has
an adequate remedy at law. Each party hereto agrees that it will not seek, and agrees to waive any requirement for, the securing or posting of a bond in connection with the other partys seeking or obtaining such equitable relief.
10. Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the parties hereto with respect to the
subject matter hereof and contains the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not be amended or supplemented, and no provisions hereof may be modified or waived, except by an instrument in
writing signed by both of the parties hereto. No waiver of any provisions hereof by either party shall be deemed a waiver of any other provisions hereof by such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof
by such party.
3
11. Notices. All notices, requests, claims, demands, and other communications hereunder
shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested),
(c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient, or
(d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party
as shall be specified in a notice given in accordance with this Section 11):
If to Parent or Merger Sub,
addressed to it at:
Hecla Mining Company
6500 N. Mineral Drive, Suite 200
Coeur dAlene, Idaho 83815-9408
Attention: David Sienko
Facsimile: (208) 209-1278
Email: dsienko@hecla-mining.com
with a mandated copy (which shall not constitute notice) to:
K&L Gates LLP
70 West Madison Street, Suite 3100
Chicago, IL 60602-4207
Attention: J. Craig Walker
Facsimile: (312) 827-8179
Email: craig.walker@klgates.com
If to Shareholder, to the address or facsimile number set forth for Shareholder on the signature page hereof.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.
(b) Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the
rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns shall be
brought and determined exclusively in the district court of the State of Idaho, or in the event (but only in the event) that such court
4
does not have subject matter jurisdiction over such action or proceeding, in the federal courts of the United States of America located in the State of Idaho. Each of the parties hereto agrees
that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 11 or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof.
Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will
not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court or tribunal other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by
way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and
the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve process in accordance with this Section 12(b),
(ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise), and (iii) to the fullest extent permitted by the applicable Law, any claim that (x) the suit, action or proceeding in such court is brought in an inconvenient forum, (y) the venue of
such suit, action or proceeding is improper, or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER
IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(C).
(d) If any term or provision of this Agreement is
invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other
jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, 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 a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
5
(e) This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one and the same instrument.
(f) Each party
hereto shall execute and deliver such additional documents as may be necessary or desirable to effect the transactions contemplated by this Agreement.
(g) All Section headings herein are for convenience of reference only and are not part of this Agreement, and no construction
or reference shall be derived therefrom.
(h) The obligations of Shareholder set forth in this Agreement shall not be
effective or binding upon Shareholder until after such time as the Merger Agreement is executed and delivered by the Company, Parent and Merger Sub, and the parties agree that there is not and has not been any other agreement, arrangement or
understanding between the parties hereto with respect to the matters set forth herein.
(i) Neither party to this Agreement
may assign any of its rights or obligations under this Agreement without the prior written consent of the other party hereto, except that Parent may assign, in its sole discretion, all or any of its rights, interests and obligations hereunder to any
of its Affiliates. Any assignment contrary to the provisions of this Section 12(i) shall be null and void.
[SIGNATURE PAGE
FOLLOWS]
6
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written
above.
|
|
|
HECLA MINING COMPANY |
|
|
By: |
|
/s/ David C. Sienko |
Name: |
|
David C. Sienko |
Title: |
|
Vice President & General Counsel |
|
Monique Hayes |
|
|
By: |
|
/s/ Monique Hayes |
Name: |
|
Monique Hayes |
Title: |
|
Corporate Secretary/Director of IR |
|
Number of Shares of Company Stock
Beneficially Owned as of the Date of this Agreement:
1,000 |
|
Street Address: 4159 E Mullan Trail
City/State/Zip Code: Coeur dAlene, ID 83815
Phone: 208-699-6097 |
7
Exhibit 9
Form of
Shareholders
Agreement
This Shareholders Agreement (this Agreement), dated as of March 26, 2015, is between the
undersigned shareholder (Shareholder) of Revett Mining Company, Inc., a Delaware corporation (the Company), and Hecla Mining Company, a Delaware corporation Parent).
WHEREAS, concurrently with or following the execution of this Agreement, the Company, Parent, and RHL Holdings, Inc., a Delaware corporation
and wholly-owned subsidiary of Parent (Merger Sub), have entered, or will enter, into an Agreement and Plan of Merger (as the same may be amended from time to time, the Merger Agreement), providing for, among
other things, the merger (the Merger) of Merger Sub into the Company pursuant to the terms and conditions of the Merger Agreement;
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has required that Shareholder execute and deliver this
Agreement; and
WHEREAS, in order to induce Parent to enter into the Merger Agreement, Shareholder is willing to make certain
representations, warranties, covenants and agreements with respect to the shares of common stock, par value $0.01 per share, of the Company (Company Stock) beneficially owned by Shareholder and set forth below Shareholders
signature on the signature page hereto (the Original Shares and, together with any additional shares of Company Stock Shareholder purchases or acquires as described in Section 6, the Shares).
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, sufficiency and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, capitalized terms
used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.
2. Representations of
Shareholder. Shareholder represents and warrants to Parent that:
(a) (i) Shareholder owns beneficially (as such term
is defined in Rule 13d-3 under the Exchange Act), all of the Original Shares free and clear of all Liens, and (ii) except pursuant hereto, there are no options, warrants or other rights, agreements, arrangements or commitments of any character
to which Shareholder is a party relating to the pledge, disposition or voting of any of the Original Shares and there are no voting trusts or voting agreements with respect to the Original Shares.
(b) Shareholder does not beneficially own any shares of Company Stock other than (i) the Original Shares.
(c) Shareholder has full power and authority and legal capacity to enter into, execute and deliver this Agreement and to
perform fully Shareholders obligations hereunder (including the proxy described in Section 3(b) below)). This Agreement has been duly and validly executed and delivered by Shareholder and constitutes the legal, valid and binding
obligation of Shareholder, enforceable against Shareholder in accordance with its terms.
(d) None of the execution and delivery of this Agreement by Shareholder, the
consummation by Shareholder of the transactions contemplated hereby, or compliance by Shareholder with any of the provisions hereof will conflict with or result in a breach, or constitute a default (with or without notice of lapse of time or both)
under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or Law applicable to Shareholder or to Shareholders property or assets.
(e) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other
Person on the part of Shareholder is required in connection with the valid execution and delivery of this Agreement. No consent of Shareholders spouse is necessary under any community property or other laws in order for Shareholder
to enter into and perform its obligations under this Agreement.
3. Agreement to Vote Shares; Irrevocable Proxy.
(a) Shareholder agrees during the term of this Agreement to vote the Shares, and to cause any holder of record of Shares to
vote: (i) in favor of the Merger and the Merger Agreement, at every meeting of the shareholders of the Company at which such matters are considered and at every adjournment or postponement thereof; (ii) against (1) any Takeover
Proposal, (2) any action, proposal, transaction or agreement which could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or
of Shareholder under this Agreement and (3) any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Merger or the
fulfillment of Parents, the Companys or Merger Subs conditions under the Merger Agreement or change in any manner the voting rights of any class of shares of the Company (including any amendments to the Charter Documents of the
Company).
(b) Shareholder hereby appoints Parent and any designee of Parent, and each of them individually, its proxies
and attorneys-in-fact, with full power of substitution and resubstitution, to vote during the term of this Agreement with respect to the Shares in accordance with Section 3(a). This proxy and power of attorney is given to secure the
performance of the duties of Shareholder under this Agreement. Shareholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. This proxy and power of attorney granted by
Shareholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by Shareholder with respect to
the Shares. The power of attorney granted by Shareholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Shareholder. The proxy and power of attorney granted hereunder shall terminate upon
the termination of this Agreement.
4. No Voting Trusts or Other Arrangement. Shareholder agrees that Shareholder will not, and will
not permit any entity under Shareholders control to, deposit any of the Shares in a voting trust, grant any proxies with respect to the Shares or subject any of the Shares to any arrangement with respect to the voting of the Shares other than
agreements entered into with Parent.
2
5. Transfer and Encumbrance. Shareholder agrees that during the term of this Agreement,
Shareholder will not, directly or indirectly, transfer, sell, offer, exchange, assign, pledge or otherwise dispose of or encumber (Transfer) any of the Shares or enter into any contract, option or other agreement with respect to,
or consent to, a Transfer of, any of the Shares or Shareholders voting or economic interest therein. Any attempted Transfer of Shares or any interest therein in violation of this Section 5 shall be null and void. This
Section 5 shall not prohibit a Transfer of the Shares by Shareholder to any member of Shareholders immediate family, or to a trust for the benefit of Shareholder or any member of Shareholders immediate family, or upon the
death of Shareholder, provided, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Parent, to be
bound by all of the terms of this Agreement.
6. Additional Shares. Shareholder agrees that all shares of Company Stock that
Shareholder purchases, acquires the right to vote or otherwise acquires beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of after the execution of this Agreement shall be subject to the terms of this Agreement and shall
constitute Shares for all purposes of this Agreement.
7. Termination. This Agreement shall terminate upon the earliest to occur of
(i) the Effective Time and (ii) the date on which the Merger Agreement is terminated in accordance with its terms.
8. No
Agreement as Director or Officer. Shareholder makes no agreement or understanding in this Agreement in Shareholders capacity as a director or officer of the Company or any of its Subsidiaries (if Shareholder holds such office), and nothing
in this Agreement: (a) will limit or affect any actions or omissions taken by Shareholder in Shareholders capacity as such a director or officer, including in exercising rights under the Merger Agreement, and no such actions or omissions
shall be deemed a breach of this Agreement or (b) will be construed to prohibit, limit or restrict Shareholder from exercising Shareholders fiduciary duties as an officer or director to the Company or its Shareholders.
9. Specific Performance. Each party hereto acknowledges that it will be impossible to measure in money the damage to the other party if
a party hereto fails to comply with any of the obligations imposed by this Agreement, that every such obligation is material and that, in the event of any such failure, the other party will not have an adequate remedy at law or damages. Accordingly,
each party hereto agrees that injunctive relief or other equitable remedy, in addition to remedies at law or damages, is the appropriate remedy for any such failure and will not oppose the seeking of such relief on the basis that the other party has
an adequate remedy at law. Each party hereto agrees that it will not seek, and agrees to waive any requirement for, the securing or posting of a bond in connection with the other partys seeking or obtaining such equitable relief.
10. Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the parties hereto with respect to the
subject matter hereof and contains the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not be amended or supplemented, and no provisions hereof may be modified or waived, except by an instrument in
writing signed by both of the parties hereto. No waiver of any provisions hereof by either party shall be deemed a waiver of any other provisions hereof by such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof
by such party.
3
11. Notices. All notices, requests, claims, demands, and other communications hereunder
shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested),
(c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient, or
(d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party
as shall be specified in a notice given in accordance with this Section 11):
If to Parent or Merger Sub,
addressed to it at:
Hecla Mining Company
6500 N. Mineral Drive, Suite 200
Coeur dAlene, Idaho 83815-9408
Attention: David Sienko
Facsimile: (208) 209-1278
Email: dsienko@hecla-mining.com
with a mandated copy (which shall not constitute notice) to:
K&L Gates LLP
70 West Madison Street, Suite 3100
Chicago, IL 60602-4207
Attention: J. Craig Walker
Facsimile: (312) 827-8179
Email: craig.walker@klgates.com
If to Shareholder, to the address or facsimile number set forth for Shareholder on the signature page hereof.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.
(b) Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the
rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns shall be
brought and determined exclusively in the district court of the State of Idaho, or in the event (but only in the event) that such court
4
does not have subject matter jurisdiction over such action or proceeding, in the federal courts of the United States of America located in the State of Idaho. Each of the parties hereto agrees
that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 11 or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof.
Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will
not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court or tribunal other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by
way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and
the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve process in accordance with this Section 12(b),
(ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise), and (iii) to the fullest extent permitted by the applicable Law, any claim that (x) the suit, action or proceeding in such court is brought in an inconvenient forum, (y) the venue of
such suit, action or proceeding is improper, or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER
IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(C).
(d) If any term or provision of this Agreement is invalid,
illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon
such determination that any term or other provision is invalid, illegal or unenforceable, 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 a
mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
5
(e) This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one and the same instrument.
(f) Each party
hereto shall execute and deliver such additional documents as may be necessary or desirable to effect the transactions contemplated by this Agreement.
(g) All Section headings herein are for convenience of reference only and are not part of this Agreement, and no construction
or reference shall be derived therefrom.
(h) The obligations of Shareholder set forth in this Agreement shall not be
effective or binding upon Shareholder until after such time as the Merger Agreement is executed and delivered by the Company, Parent and Merger Sub, and the parties agree that there is not and has not been any other agreement, arrangement or
understanding between the parties hereto with respect to the matters set forth herein.
(i) Neither party to this Agreement
may assign any of its rights or obligations under this Agreement without the prior written consent of the other party hereto, except that Parent may assign, in its sole discretion, all or any of its rights, interests and obligations hereunder to any
of its Affiliates. Any assignment contrary to the provisions of this Section 12(i) shall be null and void.
[SIGNATURE PAGE
FOLLOWS]
6
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written
above.
|
|
|
HECLA MINING COMPANY |
|
|
By: |
|
/s/ David C. Sienko |
Name: |
|
David C. Sienko |
Title: |
|
Vice President & General Counsel |
|
Albert F. Appleton |
|
|
By: |
|
/s/ Albert F. Appleton 3/25/15 |
Name: |
|
Albert F. Appleton |
Title: |
|
Director |
|
Number of Shares of Company Stock
Beneficially Owned as of the Date of this Agreement:
23,393 |
|
Street Address: 1623 Third Ave., Apt. 36F
City/State/Zip Code: New York, NY 10128 Phone:
917-892-1076 |
7
Exhibit 10
Form of
Shareholders
Agreement
This Shareholders Agreement (this Agreement), dated as of March 26, 2015, is between the
undersigned shareholder (Shareholder) of Revett Mining Company Inc., a Delaware corporation (the Company), and Hecla Mining Company, a Delaware corporation (Parent).
WHEREAS, concurrently with or following the execution of this Agreement, the Company, Parent, and RHL Holdings, Inc., a Delaware corporation
and wholly-owned subsidiary of Parent (Merger Sub), have entered, or will enter, into an Agreement and Plan of Merger (as the same may be amended from time to time, the Merger Agreement), providing for, among
other things, the merger (the Merger) of Merger Sub into the Company pursuant to the terms and conditions of the Merger Agreement;
WHEREAS, as a condition to its willingness to enter into the Merger Agreement Parent has required that Shareholder execute and deliver this
Agreement; and
WHEREAS, in order to induce Parent to enter into the Merger Agreement, Shareholder is willing to make certain
representations, warranties, covenants and agreements with respect to the shares of common stock, par value $0.01 per share, of the Company (Company Stock) beneficially owned by Shareholder and set forth below Shareholders
signature on the signature page hereto (the Original Shares and, together with any additional shares of Company Stock Shareholder purchases or acquires as described in Section 6, the Shares).
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, sufficiency and adequacy of which
are hereby acknowledged the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, capitalized terms
used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.
2. Representations of
Shareholder. Shareholder represents and warrants to Parent that:
(a) (i) Shareholder owns beneficially (as such term
is defined in Rule 13d-3 under the Exchange Act), all of the Original Shares free and clear of all Liens, and (ii) except pursuant hereto, there are no options, warrants or other rights, agreements arrangements or commitments of any character
to which Shareholder is a party relating to the pledge, disposition or voting of any of the Original Shares and there are no voting trusts or voting agreements with respect to the Original Shares.
(b) Shareholder does not beneficially own any shares of Company Stock other than [(i)] the Original Shares.
(c) Shareholder has full power and authority to enter into, execute and deliver this Agreement and to perform fully
Shareholders obligations hereunder (including the proxy described in Section 3(b) below)). This Agreement has been duly and validly executed and delivered by Shareholder and constitutes the legal, valid and binding obligation of
Shareholder, enforceable against Shareholder in accordance with its terms.
(d) None of the execution and delivery of this Agreement by Shareholder, the
consummation by Shareholder of the transactions contemplated hereby, or compliance by Shareholder with any of the provisions hereof will conflict with or result in a breach, or constitute a default (with or without notice of lapse of time or both)
under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or Law applicable to Shareholder or to Shareholders property or assets.
(e) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other
Person on the part of Shareholder is required in connection with the valid execution and delivery of this Agreement.
3. Agreement to
Vote Shares; Irrevocable Proxy.
(a) Shareholder agrees during the term of this Agreement to vote the Shares, and to
cause any holder of record of Shares to vote: (i) in favor of the Merger and the Merger Agreement, at every meeting of the shareholders of the Company at which such matters are considered and at every adjournment or postponement thereof;
(ii) against (1) any Takeover Proposal, (2) any action, proposal, transaction or agreement which could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement or of Shareholder under this Agreement and (3) any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the
timely consummation of the Merger or the fulfillment of Parents, the Companys or Merger Subs conditions under the Merger Agreement or change in any manner the voting rights of any class of shares of the Company (including any
amendments to the Charter Documents of the Company).
(b) Shareholder hereby appoints Parent and any designee of Parent,
and each of them individually, its proxies and attorneys-in-fact, with full power of substitution and resubstitution, to vote during the term of this Agreement with respect to the Shares in accordance with Section 3(a). This proxy and
power of attorney is given to secure the performance of the duties of Shareholder under this Agreement. Shareholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. This
proxy and power of attorney granted by Shareholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies
granted by Shareholder with respect to the Shares. The power of attorney granted by Shareholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Shareholder. The proxy and power of attorney
granted hereunder shall terminate upon the termination of this Agreement.
4. No Voting Trusts or Other Arrangement. Shareholder
agrees that Shareholder will not, and will not permit any entity under Shareholders control to, deposit any of the Shares in a voting trust, grant any proxies with respect to the Shares or subject any of the Shares to any arrangement with
respect to the voting of the Shares other than agreements entered into with Parent.
2
5. Transfer and Encumbrance. Shareholder agrees that during the term of this Agreement,
Shareholder will not, directly or indirectly, transfer, sell, offer, exchange, assign, pledge or otherwise dispose of or encumber (Transfer) any of the Shares or enter into any contract, option or other agreement with respect to,
or consent to, a Transfer of, any of the Shares or Shareholders voting or economic interest therein. Any attempted Transfer of Shares or any interest therein in violation of this Section 5 shall be null and void. This
Section 5 shall not prohibit a Transfer of the Shares by Shareholder to any member of Shareholders immediate family, or to a trust for the benefit of Shareholder or any member of Shareholders immediate family, or upon the
death of Shareholder; provided, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Parent, to be
bound by all of the terms of this Agreement.
6. Additional Shares. Shareholder agrees that all shares of Company Stock that
Shareholder purchases, acquires the right to vote or otherwise acquires beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of after the execution of this Agreement shall be subject to the terms of this Agreement and shall
constitute Shares for all purposes of this Agreement.
7. Termination. This Agreement shall terminate upon the earliest to occur of
(i) the Effective Time and (ii) the date on which the Merger Agreement is terminated in accordance with its terms.
8. No
Agreement as Director or Officer. Shareholder makes no agreement or understanding in this Agreement in Shareholders capacity as a director or officer of the Company or any of its Subsidiaries (if Shareholder holds such office), and nothing
in this Agreement: (a) will limit or affect any actions or omissions taken by Shareholder in Shareholders capacity as such a director or officer, including in exercising rights under the Merger Agreement, and no such actions or omissions
shall be deemed a breach of this Agreement or (b) will be construed to prohibit, limit or restrict Shareholder from exercising Shareholders fiduciary duties as an officer or director to the Company or its Shareholders.
9. Specific Performance. Each party hereto acknowledges that it will be impossible to measure in money the damage to the other party if
a party hereto fails to comply with any of the obligations imposed by this Agreement, that every such obligation is material and that, in the event of any such failure, the other party will not have an adequate remedy at law or damages. Accordingly,
each party hereto agrees that injunctive relief or other equitable remedy, in addition to remedies at law or damages, is the appropriate remedy for any such failure and will not oppose the seeking of such relief on the basis that the other party has
an adequate remedy at law. Each party hereto agrees that it will not seek, and agrees to waive any requirement for, the securing or posting of a bond in connection with the other partys seeking or obtaining such equitable relief.
10. Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the parties hereto with respect to the
subject matter hereof and contains the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not be amended or supplemented, and no provisions hereof may be modified or waived, except by an instrument in
writing signed by both of the parties hereto. No waiver of any provisions hereof by either party shall be deemed a waiver of any other provisions hereof by such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof
by such party.
3
11. Notices. All notices, requests, claims, demands, and other communications hereunder
shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested),
(c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient, or
(d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party
as shall be specified in a notice given in accordance with this Section 11):
If to Parent or Merger Sub, addressed to it at:
Hecla Mining Company
6500
N. Mineral Drive, Suite 200
Coeur dAlene, Idaho 83815-9408
Attention: David Sienko
Facsimile: (208) 209-1278
Email: dsienko@hecla-mining.com
with a mandated copy (which shall not constitute notice) to:
K&L Gates LLP
70 West
Madison Street, Suite 3100
Chicago, IL 60602-4207
Attention: J. Craig Walker
Facsimile: (312) 827-8179
Email:
craig.walker@klgates.com
If to Shareholder, to the address or facsimile number set forth for Shareholder on the signature page hereof.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.
(b) Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the
rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns shall be
brought and determined exclusively in the district court of the State of Idaho, or in the event (but only in the event) that such court does not have subject matter jurisdiction over such action or proceeding, in the federal courts of the United
States of America located in the State of Idaho. Each of the parties hereto agrees that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 11 or in such other manner as
may be
4
permitted by applicable Laws, will be valid and sufficient service thereof. Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in
respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any
court or tribunal other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement
and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder (i) any claim that it is not personally subject to the
jurisdiction of the above named courts for any reason other than the failure to serve process in accordance with this Section 12(b), (ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or
from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and (iii) to the fullest extent permitted by the
applicable Law, any claim that (x) the suit, action or proceeding in such court is brought in an inconvenient forum, (y) the venue of such suit, action or proceeding is improper, or (z) this Agreement, or the subject matter hereof,
may not be enforced in or by such courts.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT
SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(C).
(d) If any term or
provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or
provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, 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 a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
5
(e) This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one and the same instrument.
(f) Each party
hereto shall execute and deliver such additional documents as may be necessary or desirable to effect the transactions contemplated by this Agreement.
(g) All Section headings herein are for convenience of reference only and are not part of this Agreement, and no construction
or reference shall be derived therefrom.
(h) The obligations of Shareholder set forth in this Agreement shall not be
effective or binding upon Shareholder until after such time as the Merger Agreement is executed and delivered by the Company, Parent and Merger Sub, and the parties agree that there is not and has not been any other agreement, arrangement or
understanding between the parties hereto with respect to the matters set forth herein.
(i) Neither party to this Agreement
may assign any of its rights or obligations under this Agreement without the prior written consent of the other party hereto, except that Parent may assign, in its sole discretion, all or any of its rights, interests and obligations hereunder to any
of its Affiliates. Any assignment contrary to the provisions of this Section 12(i) shall be null and void.
[SIGNATURE PAGE
FOLLOWS]
6
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written
above.
|
|
|
HECLA MINING COMPANY |
|
|
By: |
|
/s/ David C. Sienko |
Name: |
|
David C. Sienko |
Title: |
|
Vice President & General Counsel |
|
Larry M. Okada |
|
|
By: |
|
/s/ Larry M. Okada |
Name: |
|
Larry M. Okada |
Title: |
|
Director |
|
Number of Shares of Company Stock
Beneficially Owned as of the Date of this Agreement:
1,004 |
|
Street Address: 4333 Frances St.
City/State/Zip Code: Burnaby, BC V5C
2R2 Burnaby
Phone: 778-369-4334 |
|
|
Exhibit 11
Form of
Shareholders
Agreement
This Shareholders Agreement (this Agreement), dated as of March 26, 2015, is between the undersigned
shareholder (Shareholder) of Revett Mining Company, Inc., a Delaware corporation (the Company), and Hecla Mining Company, a Delaware corporation (Parent).
WHEREAS, concurrently with or following the execution of this Agreement, the Company, Parent, and RHL Holdings, Inc., a Delaware corporation
and wholly-owned subsidiary of Parent (Merger Sub), have entered, or will enter, into an Agreement and Plan of Merger (as the came may be amended from time to, time, the Merger Agreement), providing for, among
other things, the merger (the Merger) of Merger Sub into the Company pursuant to the terms and conditions of the Merger Agreement;
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has required that Shareholder execute and deliver this
Agreement; and
WHEREAS, in order to induce Parent to enter into the Merger Agreement, Shareholder is willing to make certain
representations, warranties, covenants and agreements with respect to the shares of common stock, par value $0.01 per share, of the Company (Company Stock) beneficially owned by Shareholder and set forth below Shareholders
signature on the signature page hereto (the Original Shares and, together with any additional shares of Company Stock Shareholder purchases or acquires as described in Section 6, the Shares).
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, sufficiency and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, capitalized terms
used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.
2. Representations of
Shareholder. Shareholder represents and warrants to Parent that:
(a) (i) Shareholder owns beneficially (as such term
is defined in Rule 13d-3 under the Exchange Act), all of the Original Shares free and clear of all Liens, and (ii) except pursuant hereto, there are no options, warrants or other rights, agreements, arrangements or commitments of any character
to which Shareholder is a party relating to the pledge, disposition or voting of any of the Original Shares and there are no voting trusts or voting agreements with respect to the Original Shares.
(b) Shareholder does not beneficially own any shares of Company Stock other than (i) the Original Shares.
(c) Shareholder has full power and authority and legal capacity to enter into, execute and deliver this Agreement and to
perform fully Shareholders obligations hereunder (including the proxy described in Section 3(b) below)). This Agreement has been duly and validly executed and delivered by Shareholder and constitutes the legal, valid and binding
obligation of Shareholder, enforceable against Shareholder in accordance with its terms.
(d) None of the execution and delivery of this Agreement by Shareholder, the
consummation by Shareholder of the transactions contemplated hereby, or compliance by Shareholder with any of the provisions hereof will conflict with or result in a breach, or constitute a default (with or without notice of lapse of time or both)
under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument or Law applicable to Shareholder or to Shareholders property or assets.
(e) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other
Person on the part of Shareholder is required in connection with the valid execution and delivery of this Agreement. No consent of Shareholders spouse is necessary under any community property or other laws in order for Shareholder
to enter into and perform its obligations under this Agreement.
3. Agreement to Vote Shares; Irrevocable Proxy.
(a) Shareholder agrees during the term of this Agreement to vote the Shares, and to cause any holder of record of Shares to
vote: (i) in favor of the Merger and the Merger Agreement, at every meeting of the shareholders of the Company at which such matters are considered and at every adjournment or postponement thereof; (ii) against (1) any Takeover
Proposal, (2) any action, proposal, transaction or agreement which could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or
of Shareholder under this Agreement and (3) any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Merger or the
fulfillment of Parents, the Companys or Merger Subs conditions under the Merger Agreement or change in any manner the voting rights of any class of shares of the Company (including any amendments to the Charter Documents of the
Company).
(b) Shareholder hereby appoints Parent and any designee of Parent, and each of them individually, its proxies
and attorneys-in-fact, with full power of substitution and resubstitution, to vote during the term of this Agreement with respect to the Shares in accordance with Section 3(a). This proxy and power of attorney is given to secure the
performance of the duties of Shareholder under this Agreement. Shareholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. This proxy and power of attorney granted by
Shareholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by Shareholder with respect to
the Shares. The power of attorney granted by Shareholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of Shareholder. The proxy and power of attorney granted hereunder shall terminate upon
the termination of this Agreement.
4. No Voting Trusts or Other Arrangement. Shareholder agrees that Shareholder will not, and will
not permit any entity under Shareholders control to, deposit any of the Shares in a voting trust, grant any proxies with respect to the Shares or subject any of the Shares to any arrangement with respect to the voting of the Shares other than
agreements entered into with Parent.
2
5. Transfer and Encumbrance. Shareholder agrees that during the term of this Agreement,
Shareholder will not, directly or indirectly, transfer, sell, offer, exchange, assign, pledge or otherwise dispose of or encumber (Transfer) any of the Shares or enter into any contract, option or other agreement with respect to,
or consent to, a Transfer of, any of the Shares or Shareholders voting or economic interest therein. Any attempted Transfer of Shares or any interest therein in violation of this Section 5 shall be null and void. This
Section 5 shall not prohibit a Transfer of the Shares by Shareholder to any member of Shareholders immediate family, or to a trust for the benefit of Shareholder or any member of Shareholders immediate family, or upon the
death of Shareholder; provided, that a Transfer referred to in this sentence shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to Parent, to be
bound by all of the terms of this Agreement.
6. Additional Shares. Shareholder agrees that all shares of Company Stock that
Shareholder purchases, acquires the right to vote or otherwise acquires beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of after the execution of this Agreement shall be subject to the terms of this Agreement and shall
constitute Shares for all purposes of this Agreement.
7. Termination. This Agreement shall terminate upon the earliest to occur of
(i) the Effective Time and (ii) the date on which the Merger Agreement is terminated in accordance with its terms.
8. No
Agreement as Director or Officer. Shareholder makes no agreement or understanding in this Agreement in Shareholders capacity as a director or officer of the Company or any of its Subsidiaries (if Shareholder holds such office), and nothing
in this Agreement: (a) will limit or affect any actions or omissions taken by Shareholder in Shareholders capacity as such a director or officer, including in exercising rights under the Merger Agreement, and no such actions or omissions
shall be deemed a breach of this Agreement or (b) will be construed to prohibit, limit or restrict Shareholder from exercising Shareholders fiduciary duties as an officer or director to the Company or its Shareholders.
9. Specific Performance. Each party hereto acknowledges that it will be impossible to measure in money the damage to the other party if
a party hereto fails to comply with any of the obligations imposed by this Agreement, that every such obligation is material and that, in the event of any such failure, the other party will not have an adequate remedy at law or damages. Accordingly,
each party hereto agrees that injunctive relief or other equitable remedy, in addition to remedies at law or damages, is the appropriate remedy for any such failure and will not oppose the seeking of such relief on the basis that the other party has
an adequate remedy at law. Each party hereto agrees that it will not seek, and agrees to waive any requirement for, the securing or posting of a bond in connection with the other partys seeking or obtaining such equitable relief.
10. Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the parties hereto with respect to the
subject matter hereof and contains the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not be amended or supplemented, and no provisions hereof may be modified or waived, except by an instrument in
writing signed by both of the parties hereto. No waiver of any provisions hereof by either party shall be deemed a waiver of any other provisions hereof by such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof
by such party.
3
11. Notices. All notices, requests, claims, demands, and other communications hereunder
shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested),
(c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient, or
(d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party
as shall be specified in a notice given in accordance with this Section 11):
If to Parent or Merger Sub, addressed to it at:
Hecla Mining Company
6500
N. Mineral Drive, Suite 200
Coeur dAlene, Idaho 83815-9408
Attention: David Sienko
Facsimile: (208) 209-1278
Email: dsienko@hecla-mining.com
with a mandated copy (which shall not constitute notice) to:
K&L Gates LLP
70 West
Madison Street, Suite 3100
Chicago, IL 60602-4207
Attention: J. Craig Walker
Facsimile: (312) 827-8179
Email: craig.walker@klgates.com
If to Shareholder, to the address or facsimile number set forth for Shareholder on the signature page hereof.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.
(b) Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the
rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns shall be
brought and determined exclusively in the district court of the State of Idaho, or in the event (but only in the event) that such court
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does not have subject matter jurisdiction over such action or proceeding, in the federal courts of the United States of America located in the State of Idaho. Each of the parties hereto agrees
that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 11 or in such other manner as may be permitted by applicable Laws, will be valid and sufficient service thereof.
Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will
not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court or tribunal other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by
way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and
the rights and obligations arising hereunder (i) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve process in accordance with this Section 12(b),
(ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise), and (iii) to the fullest extent permitted by the applicable Law, any claim that (x) the suit, action or proceeding in such court is brought in an inconvenient forum, (y) the venue of
such suit, action or proceeding is improper, or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER
IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(C).
(d) If any term or provision of this Agreement is invalid,
illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon
such determination that any term or other provision is invalid, illegal or unenforceable, 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 a
mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
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(e) This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together shall constitute one and the same instrument.
(f) Each party
hereto shall execute and deliver such additional documents as may be necessary or desirable to effect the transactions contemplated by this Agreement.
(g) All Section headings herein are for convenience of reference only and are not part of this Agreement, and no construction
or reference shall be derived therefrom.
(h) The obligations of Shareholder set forth in this Agreement shall not be
effective or binding upon Shareholder until after such lime as the Merger Agreement is executed and delivered by the Company, Parent and Merger Sub, and the parties agree that there is not and has not been any other agreement, arrangement or
understanding between the parties hereto with respect to the matters set forth herein.
(i) Neither party to this Agreement
may assign any of its rights or obligations under this Agreement without the prior written consent of the other party hereto, except that Parent may assign, in its sole discretion, all or any of its rights, interests and obligations hereunder to any
of its Affiliates. Any assignment contrary to the provisions of this Section 12(i) shall be null and void.
[SIGNATURE PAGE
FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written
above.
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HECLA MINING COMPANY |
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By: |
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/s/ David C. Sienko |
Name: |
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David C. Sienko |
Title: |
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Vice President & General Counsel |
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John B. McCombe |
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By: |
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/s/ John B. McCombe |
Name: |
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John B. McCombe |
Title: |
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Director |
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Number of Shares of Company Stock
Beneficially Owned as of the Date of this Agreement:
1,004 |
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Street Address: 155 Wellington St. West,
Ste. 2920 City/State/Zip Code: Toronto, ON M5V
3H1 Phone: 416-583-5628 |
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Revett Mining Company, Inc. (AMEX:RVM)
過去 株価チャート
から 5 2024 まで 6 2024
Revett Mining Company, Inc. (AMEX:RVM)
過去 株価チャート
から 6 2023 まで 6 2024