AMENDED AND RESTATED
TRANSACTION AGREEMENT
By and Between
ASARCO INCORPORATED
and
COEUR D'▇▇▇▇▇ ▇▇▇▇▇ CORPORATION
--------------------
Dated as of May 13,1999
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS..............................................................1
Section 1.1 Definitions.................................................1
ARTICLE II
TRANSFER OF ASARCO INTERESTS; ISSUE OF NEW COEUR STOCK...................8
Section 2.1 Transfer of Asarco Interests................................8
Section 2.2 Issue of New Coeur Stock....................................8
Section 2.3 Closing.....................................................8
ARTICLE III
REPRESENTATIONS OF ASARCO................................................8
Section 3.1 Representations of Asarco...................................8
Section 3.2 Ownership of Stock; Due Authorization; Enforceability.......8
Section 3.3 Existence and Good Standing.................................9
Section 3.4 Capital Stock of NPMC and Empresa...........................9
Section 3.5 NPMC Subsidiaries and Investments..........................10
Section 3.6 Empresa Subsidiaries and Investments.......................11
Section 3.7 NPMC Financial Statements and No Material Changes..........12
Section 3.8 Empresa Financial Statements and No Material Changes.......12
Section 3.9 Books and Records..........................................13
Section 3.10 Title to Personal Properties; Encumbrances................13
Section 3.11 Owned Real Property.......................................14
Section 3.12 Leases....................................................14
Section 3.13 Material Contracts........................................15
Section 3.14 Consents and Approvals; No Violations.....................16
Section 3.15 Litigation................................................17
Section 3.16 Taxes.....................................................17
Section 3.17 Liabilities...............................................18
Section 3.18 Insurance.................................................19
Section 3.19 Intellectual Property.....................................19
Section 3.20 Compliance with Laws......................................19
Section 3.21 Employment Relations......................................19
Section 3.22 Employee Benefit Plans....................................20
Section 3.23 Environmental Laws and Regulations........................25
Section 3.24 Interests in Clients, Suppliers, Etc......................25
Section 3.25 Compensation of Employees.................................26
Section 3.26 Permits...................................................26
Section 3.27 No Changes Since Balance Sheet Dates of NPMC, Empresa.....26
Section 3.28 Brokers'or Finders'Fees...................................26
ARTICLE IV
REPRESENTATIONS OF COEUR................................................26
Section 4.1 Representations of Coeur...................................26
Section 4.2 Ownership of Stock; Due Authorization; Enforceability......27
Section 4.3 Existence and Good Standing................................27
Section 4.4 Capital Stock..............................................27
Section 4.5 Subsidiaries and Investments...............................28
Section 4.6 SEC Documents..............................................29
Section 4.7 Books and Records..........................................29
Section 4.8 Title to Personal Properties; Encumbrances.................29
Section 4.9 Owned Real Property........................................29
Section 4.10 Leases....................................................30
Section 4.11 Material Contracts........................................30
Section 4.12 Consents and Approvals; No Violations.....................31
Section 4.13 Litigation................................................32
Section 4.14 Taxes.....................................................32
Section 4.15 Liabilities...............................................33
Section 4.16 Insurance.................................................33
Section 4.17 Intellectual Property.....................................33
Section 4.18 Compliance with Laws......................................34
Section 4.19 Employment Relations......................................34
Section 4.20 Coeur Employee Benefit Plans..............................35
Section 4.21 Environmental Laws and Regulations........................40
Section 4.22 Interests in Clients, Suppliers, Etc......................40
Section 4.23 Compensation of Employees.................................40
Section 4.24 Permits...................................................40
Section 4.25 No Changes Since Coeur Balance Sheet Date.................40
Section 4.26 Brokers'or Finders'Fees...................................41
ARTICLE V
COVENANTS OF ASARCO.....................................................41
Section 5.1 Conduct of Business of NPMC and Empresa....................41
Section 5.2 Standstill.................................................43
Section 5.3 Future Distributions.......................................44
ARTICLE VI
COVENANTS OF COEUR......................................................44
Section 6.1 Coeur Shareholder Approval; Voting and issue of the New
Coeur Shares...............................................44
Section 6.2 Conduct of Business of Coeur...............................45
ARTICLE VII
CONDITIONS OF OBLIGATIONS OF ASARCO.....................................47
Section 7.1 Conditions of Obligations of Asarco........................47
Section 7.2 Approval of Asarco Board of Directors......................47
Section 7.3 Approval of Coeur Stockholders.............................47
Section 7.4 Truth of Representations and Warranties....................47
Section 7.5 Performance of Agreements..................................48
Section 7.6 Opinion of Coeur's Counsel.................................48
Section 7.7 Good Standing and Other Certificates.......................48
Section 7.8 No Material Adverse Change.................................48
Section 7.9 No Litigation Threatened...................................48
Section 7.10 Execution of Shareholder Agreement........................48
Section 7.11 Amendment of Coeur By-Laws................................48
Section 7.12 Execution of Registration Rights Agreement................49
Section 7.13 HSR Act Waiting Periods...................................49
Section 7.14 Governmental Approvals....................................49
Section 7.15 Statutes..................................................49
Section 7.16 Proceedings...............................................49
ARTICLE VIII
CONDITIONS OF OBLIGATIONS OF COEUR......................................49
Section 8.1 Conditions of Obligations of Coeur.........................49
Section 8.2 Approval of Coeur Board of Directors.......................49
Section 8.3 Approval of Coeur Shareholders.............................49
Section 8.4 Truth of Representations and Warranties....................49
Section 8.5 Performance of Agreements..................................50
Section 8.6 Opinion of Asarco's Counsel................................50
Section 8.7 Good Standing and Other Certificates.......................50
Section 8.8 No Material Adverse Change.................................50
Section 8.9 No Litigation Threatened...................................50
Section 8.10 Execution of Shareholder Agreement........................50
Section 8.11 Execution of Registration Rights Agreement................50
Section 8.12 HSR Act Waiting Periods...................................51
Section 8.13 Governmental Approvals....................................51
Section 8.14 Resignation of Directors and Officers.....................51
Section 8.15 Statutes..................................................51
Section 8.16 Proceedings...............................................51
ARTICLE IX
TAX MATTERS.............................................................51
Section 9.1 NPMC, Empresa and Subsidiaries Tax Returns.................51
Section 9.2 Silver Valley Tax Returns..................................52
Section 9.3 Controversies..............................................52
Section 9.4 Transfer Taxes.............................................53
Section 9.5 Amended Returns............................................53
Section 9.6 Indemnification by Asarco..................................53
Section 9.7 Indemnification by Coeur...................................54
Section 9.8 Post-Closing Access and Cooperation........................54
ARTICLE X
SURVIVAL; INDEMNIFICATION...............................................54
Section 10.1 Survival..................................................54
Section 10.2 Indemnification...........................................55
Section 10.3 Third Party Claims........................................55
ARTICLE XI
TERMINATION AND ABANDONMENT.............................................56
Section 11.1 Termination...............................................56
Section 11.2 Effect of Termination.....................................57
ARTICLE XII
MISCELLANEOUS...........................................................57
Section 12.1 Expenses..................................................57
Section 12.2 Governing Law.............................................57
Section 12.3 Jurisdiction; Agents for Service of Process...............57
Section 12.4 Captions..................................................57
Section 12.5 Publicity.................................................57
Section 12.6 Notices...................................................58
Section 12.7 Parties in Interest.......................................58
Section 12.8 Counterparts..............................................58
Section 12.9 Entire Agreement..........................................58
Section 12.10 Amendments...............................................58
Section 12.11 Severability.............................................58
Section 12.12 Third Party Beneficiaries................................58
AMENDED AND RESTATED
TRANSACTION AGREEMENT
TRANSACTION AGREEMENT (this "Agreement") dated as of May 13, 1999
and amended and restated as of June 22, 1999 by and between ASARCO INCORPORATED,
a New Jersey corporation ("Asarco"), and COEUR D'▇▇▇▇▇ ▇▇▇▇▇ CORPORATION, an
Idaho corporation ("Coeur").
W I T N E S S E T H :
WHEREAS, Asarco and NPMC, Inc., a Delaware corporation (formerly
Northern Peru Mining Corporation) ("NPMC") together own 1,500,000 shares of
common stock, no par value, of Pan American Silver Corp., a corporation
incorporated under the laws of British Columbia ("PASC"), being 5.2% of the
issued and outstanding shares of capital stock of PASC (the "PASC Stock") based
upon PASC's public report of the number of shares outstanding as of March 31,
1999; NPMC owns warrants to acquire an additional 500,000 shares of PASC capital
stock ("PASC Warrants"); Asarco owns 500 shares of common stock, par value $.01,
of Silver Valley Resources Corporation, a Delaware corporation ("Silver
Valley"), being 50% of the issued and outstanding shares of capital stock of
Silver Valley (the "Silver Valley Stock"); Asarco owns 1,000 shares of common
stock, par value $1.00, of NPMC, being all of the issued and outstanding shares
of capital stock of NPMC (the "NPMC Stock"); and Asarco and one of its
subsidiaries together own 12,422 quotas of capital, with a value of Bolivianos
(Bs.) 1,000.00 each of Empresa Minera Manquiri S.R.L., a Bolivian limited
liability company ("Empresa"), being all of the issued and outstanding capital
stock of Empresa (the "Empresa Quotas") (the PASC Stock, the PASC Warrants,
Silver Valley Stock, NPMC Stock and Empresa Quotas collectively referred to
herein as the "Asarco Interests");
WHEREAS, Asarco desires to exchange the Asarco Interests for
7,125,000 newly issued shares of Coeur common stock (the "New Coeur Stock") and
Coeur desires to exchange the New Coeur Stock for the Asarco Interests pursuant
to this Agreement; and
WHEREAS, it is the intention of the parties hereto that, upon
consummation of the exchange of the Asarco Interests for the New Coeur Stock
pursuant to this Agreement, Asarco shall own the New Coeur Stock and Coeur shall
own the Asarco Interests;
NOW, THEREFORE, IT IS AGREED:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. When used in this Agreement, the following
terms shall have the respective meanings specified therefor below (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined).
"Affiliate" of any Person shall mean any Person directly or
indirectly controlling, controlled by, or under common control with, such
Person; provided that, for the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or partnership interests, by contract or
otherwise.
"Agreement" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Asarco" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Asarco Indemnitee" shall have the meaning assigned to such term in
Section 9.2.
"Asarco Interests" shall have the meaning assigned to such term in
the first recital of this Agreement.
"Business Day" shall mean any day, other than a Saturday, Sunday or
a day on which banks located in New York, New York shall be authorized or
required by law to close.
"Closing" shall have the meaning assigned to such term in Section
2.3.
"Closing Date" shall have the meaning assigned to such term in
Section 2.3.
"Coeur" shall have the meaning assigned to such term in the preamble
to this Agreement.
"Coeur Balance Sheet" shall have the meaning assigned to such term
in Section 4.5.
"Coeur Balance Sheet Date" shall have the meaning assigned to such
term in Section 4.5.
"Coeur Common Stock" shall have the meaning assigned to such term in
Section 4.4.
"Coeur Financial Reports" shall have the meaning assigned to such
term in Section 4.5.
"Coeur Indemnitee" shall have the meaning assigned to such term in
Section 9.2.
"Coeur Property" shall mean any real property and improvements owned
(directly, indirectly, or beneficially), leased, used, operated or occupied by
Coeur and/or the Coeur Subsidiaries.
"Coeur Subsidiary" shall have the meaning assigned to such term in
Section 4.3.
"Condition" of any Person shall mean the business, properties,
assets, liabilities, operations, results of operations, condition (financial or
otherwise) or prospects of such Person.
"Damages" shall mean any and all losses, claims, demands,
liabilities, obligations, costs and expenses, including without limitation,
reasonable fees and disbursements of counsel (however sustained or incurred,
including, without limitation, in any action or proceeding involving any third
party or involving any other party to this Agreement) sustained or incurred by
or claimed against Coeur or Asarco, as the case may be, and other reasonable
out-of-pocket costs and expenses incurred in connection with investigating or
defending any action, suit or proceeding, commenced or threatened, but excluding
punitive or consequential losses or damages.
"Empresa" shall have the meaning assigned to such term in the first
recital of this Agreement.
"Empresa Balance Sheet" shall have the meaning assigned to it in
Section 3.7.
"Empresa Balance Sheet Date" shall have the meaning assigned to it
in Section 3.7.
"Empresa Capital" shall have the meaning assigned to it in Section
3.4.
"Empresa Property" shall mean any real property and improvements
owned (directly, indirectly, or beneficially), leased, used, operated or
occupied by Empresa and/or the Empresa Subsidiaries.
"Empresa Quotas" shall have the meaning assigned to such term in the
first recital of this Agreement.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations or proceedings relating in
any way to any Environmental Law or any permit issued under any such
Environmental Law, (for purposes of this definition, "Claims") including,
without limitation: (i) any and all Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law; and (ii) any
and all Claims, by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment.
"Environmental Law" shall mean any federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, guideline, policy or rule of
common law in effect and in each case as amended as of the date hereof and the
Closing and any judicial or administrative interpretation thereof as of the date
hereof and the Closing including any judicial or administrative order, consent
decree or judgment, relating to the environment, health, safety or Hazardous
Materials, including without limitation the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section
9601 et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
Section 6901 et seq.; the Federal Water Pollution Control Act, as amended, 33
U.S.C. Section 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss.
2601 et seq.; the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; the Safe Drinking
Water Act, 42 U.S.C. ss. 300f et seq.; the Oil Pollution Act of 1990, 33 U.S.C.
ss.2701 et seq.; and their state and local counterparts and equivalents.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, together with the rules and regulations promulgated thereunder.
"GAAP" shall have the meaning assigned to such term in Section 3.5.
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvement Act
of 1976, as amended, and the rules and regulations thereunder.
"Hazardous Materials" shall mean: (i) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; (ii) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "extremely hazardous wastes," "restricted hazardous wastes," "toxic
substances," "toxic pollutants" or words of similar import, under any applicable
Environmental Law; and (iii) any other chemical, material or substance, exposure
to which is prohibited, limited or regulated by any governmental authority.
"Indemnified Party" shall have the meaning assigned to such term in
Section 9.3.
"Indemnifying Party" shall have the meaning assigned to such term in
Section 9.3.
"Liens" shall mean liens, security interests, options, rights of
first refusal, easements, mortgages, charges, indentures, deeds of trust, rights
of way, restrictions on the use of real property, encroachments, licenses to
third parties, leases to third parties, security agreements, or any other
encumbrances and other restrictions or limitations on use of real or personal
property or irregularities in title thereto.
"Loss" shall have the meaning assigned to such term in Section 9.2.
"Material Adverse Change" shall mean a material adverse effect on
the assets, properties, businesses, results of operations or financial condition
of a party, taken as a whole, and in any case after application of the proceeds
of any insurance or indemnity; provided that the term "Material Adverse Change"
as used herein shall not include any effect attributable to changes in the
political or economic conditions of the United States or any other country
generally, changes in the industries in which any party engages, or seasonality
of the businesses of any party.
"New Coeur Stock" shall have the meaning assigned to such term in
the second recital of this Agreement.
"NPMC" shall have the meaning assigned to such term in the first
recital of this Agreement.
"NPMC Balance Sheet" shall have the meaning assigned to such term in
Section 3.6.
"NPMC Balance Sheet Date" shall have the meaning assigned to such
term in Section 3.6.
"NPMC Common Stock" shall have the meaning assigned to such term in
Section 3.4.
"NPMC Stock" shall have the meaning assigned to such term in the
first recital of this Agreement.
"PASC Stock" shall have the meaning assigned to such term in the
first recital of this Agreement.
"PASC Warrants" shall have the meaning assigned to such term in the
first recital of this Agreement.
"Parties" shall mean Asarco and Coeur and their respective
successors and permitted assigns.
"Permitted Liens" shall mean: (i) Liens expressly reflected in the
most recent balance sheet of such Person that was delivered prior to the
execution of this Agreement, (ii) Liens consisting of zoning or planning
restrictions or regulations, easements, permits, restrictive covenants,
encroachments and other restrictions or limitations on the use of real property
or irregularities in, or exceptions to, title thereto which do not materially
detract from the value of, or impair the use of, such property; and (iii) Liens
for current taxes, assessments or governmental charges or levies not yet due and
payable.
"Person" shall mean and include an individual, a partnership, a
joint venture, a corporation, a limited liability company, a limited liability
partnership, a trust, an incorporated organization and a government or any
department or agency thereof.
"Release" shall mean the disposing, discharging, injecting,
spilling, leaking, leaching, dumping, emitting, escaping, emptying, seeping,
placing and the like, into or upon any land or water or air, or otherwise
entering into the environment.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
"Silver Valley Balance Sheet" shall have the meaning assigned to it
in Section 3.5.
"Silver Valley Balance Sheet Date" shall have the meaning assigned
to it in Section 3.5.
"Silver Valley Common Stock" shall have the meaning assigned to it
in Section 3.4.
"Silver Valley" shall have the meaning assigned to such term in the
first recital of this Agreement.
"Silver Valley Property" shall mean any real property and
improvements owned (directly, indirectly, or beneficially), leased, used,
operated or occupied by Silver Valley.
"Silver Valley Stock" shall have the meaning assigned to such term
in the first recital of this Agreement.
"Subsidiary" shall mean any other Person in which a Person owns,
directly or indirectly, 50% or more of the outstanding shares of voting capital
stock or other voting equity interests.
"Taxes" means all taxes, assessments, charges, duties, fees, levies
or other governmental charges, including, without limitation, all federal,
state, local, foreign and other income, franchise, profits, capital gains,
capital stock, transfer, sales, use, occupation, property, excise, severance,
windfall profits, stamp, license, payroll, withholding and other taxes,
assessments, charges, duties, fees, levies or other governmental charges of any
kind whatsoever (whether payable directly or by withholding and whether or not
requiring the filing of a return), all estimated taxes, deficiency assessments,
additions to tax, penalties and interest and shall include any liability for
such amounts as a result either of being a member of a combined, consolidated,
unitary or affiliated group or of a contractual obligation to indemnify any
person or other entity.
ARTICLE II
TRANSFER OF ASARCO INTERESTS; ISSUE OF NEW COEUR STOCK
Section 2.1 Transfer of Asarco Interests. Upon the terms and subject
to the conditions set forth in this Agreement, Asarco agrees to transfer and
convey the Asarco Interests to Coeur at the Closing on the Closing Date. The
certificates representing the PASC Stock, the PASC Warrants, the Silver Valley
Stock, the NPMC Stock and the Empresa Quotas shall be duly endorsed in blank, or
accompanied by stock powers duly executed in blank, or a public deed of transfer
of quotas, by Asarco transferring the same, with all necessary transfer tax and
other revenue stamps, acquired at Asarco's expense, affixed and canceled.
Section 2.2 Issue of New Coeur Stock. Upon the terms and subject to
the conditions set forth in this Agreement, Coeur agrees to issue the New Coeur
Stock to Asarco at the Closing on the Closing Date. The New Coeur Stock shall be
evidenced by one or more certificates (as may be requested by Asarco five
Business Days prior to the Closing Date), with all necessary issue tax and other
revenue stamps, acquired at Coeur's expense, affixed and canceled.
Section 2.3 Closing. The transactions referred to in Sections 2.1
and 2.2 (the "Closing") shall take place at the offices of Asarco, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the day on which the approval of Coeur
stockholders shall be obtained as provided in Sections 7.3 and 8.3,or at such
other time and date as the Parties hereto shall designate in writing. Such date
is herein referred to as the "Closing Date".
ARTICLE III
REPRESENTATIONS OF ASARCO
Section 3.1 Representations of Asarco. Asarco represents, warrants
and agrees as follows:
Section 3.2 Ownership of Stock; Due Authorization; Enforceability.
(a) Asarco is the lawful owner, beneficially and of record, of the Asarco
Interests, free and clear of all Liens. Asarco has full legal right, power and
authority to enter into this Agreement and to transfer and convey the Asarco
Interests pursuant to this Agreement and the delivery to Coeur of the Asarco
Interests pursuant to the provisions of this Agreement will transfer to Coeur
good and valid title thereto, free and clear of all Liens. The delivery to Coeur
of the Asarco Interests pursuant to the provisions of this Agreement will
transfer to Coeur ownership of 1,500,000 shares of the issued and outstanding
capital stock of PASC and warrants to acquire an additional 500,000 shares of
capital stock of PASC, 50% of the issued and outstanding capital stock of Silver
Valley, 100% of the issued and outstanding capital stock of NPMC and 100% of the
authorized, issued and outstanding quotas of capital of Empresa.
(b) Asarco is validly existing and in good standing under the laws
of New Jersey and has the requisite corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The execution,
delivery and performance of this Agreement and the transactions contemplated
hereby by Asarco is required to be duly authorized and approved by the board of
directors of Asarco. No other corporate action is necessary to authorize the
execution, delivery and performance of this Agreement and the transactions
contemplated hereby by Asarco.
(c) This Agreement and all other instruments and agreements to be
executed and delivered by Asarco as contemplated hereby and identified herein
when delivered in accordance with the terms hereof, assuming the due execution
and delivery of this Agreement and each such other document by the other parties
thereto, shall have been duly executed and delivered by Asarco and shall be a
valid and binding obligation of Asarco, enforceable against Asarco in accordance
with its terms, except to the extent that its enforceability may be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and to general
equitable principles.
Section 3.3 Existence and Good Standing. (a) NPMC is a corporation
duly organized, validly existing and in good standing under the laws of
Delaware. NPMC has the power to own its property and to carry on its business as
now being conducted.
(b) Empresa is a limited liability company duly organized and
validly existing under the laws of Bolivia. Empresa has the power to own its
property and to carry on its business as now being conducted.
(c) Silver Valley is a corporation duly organized, validly existing
and in good standing under the laws of Delaware. Silver Valley has the power to
own its property and to carry on its business as now being conducted.
Section 3.4 Capital Stock of NPMC and Empresa. (a) NPMC has an
authorized capitalization consisting of only 1,000 shares of common stock, $1.00
par value ("NPMC Common Stock"), of which 1,000 shares are issued and
outstanding. All such outstanding shares have been duly authorized and validly
issued and are fully paid and nonassessable and are not subject to, nor were
they issued in violation of, any preemptive rights.
(b) Empresa has an authorized capitalization consisting of only
12,422 quotas of capital with a value of Bolivianos (Bs) 1,000 each ("Empresa
Capital"), of which 100% are issued and outstanding. All such outstanding quotas
have been duly authorized and validly issued and are fully paid and
nonassessable and are not subject to, nor were they issued in violation of, any
preemptive rights.
(c) Silver Valley has an authorized capitalization consisting of
only 1,000 shares of common stock, $.01 par value ("Silver Valley Common
Stock"), of which 1,000 shares are issued and outstanding. All such outstanding
shares have been duly authorized and validly issued and are fully paid and
nonassessable and are not subject to, nor were they issued in violation of, any
preemptive rights.
Section 3.5 Silver Valley Financial Statements and No Material
Changes. (a) Asarco has heretofore furnished Coeur with the consolidated balance
sheets of Silver Valley (the "Silver Valley Balance Sheet") as of December 31,
1998 and the related consolidated statements of income for such year (the
"Silver Valley Balance Sheet Date"). The Silver Valley Balance Sheet is attached
as Schedule 3.5. The financial statements referred to above, including the
footnotes thereto, except as indicated therein, have been prepared in accordance
with United States generally accepted accounting principles consistently
followed throughout the periods indicated ("GAAP").
(b) The Silver Valley Balance Sheet fairly presents, in all material
respects, the financial condition of Silver Valley at the date thereof. Since
the Silver Valley Balance Sheet Date there has been (x) no Material Adverse
Change in the Condition of Silver Valley, taken as a whole, and (y) no change in
the Condition of Silver Valley except in the ordinary course of business, and,
to the best knowledge of Asarco, no fact or condition exists or is contemplated
or threatened which is reasonably likely to cause such a change in the future.
Section 3.6 NPMC Financial Statements and No Material Changes. (a)
Asarco has heretofore furnished Coeur with the consolidated balance sheets of
NPMC (the "NPMC Balance Sheet") as of December 31, 1998 and the related
consolidated statements of income for such year (the "NPMC Balance Sheet Date").
The NPMC Balance Sheet is attached as Schedule 3.6. The financial statements
referred to above, including the footnotes thereto, except as indicated therein,
have been prepared in accordance with United States generally accepted
accounting principles consistently followed throughout the periods indicated
("GAAP").
(b) The NPMC Balance Sheet fairly presents, in all material
respects, the financial condition of NPMC at the date thereof. Since the NPMC
Balance Sheet Date there has been (x) no material adverse change in the
Condition of NPMC, taken as a whole, and (y) no change in the Condition of NPMC
except in the ordinary course of business, and, to the best knowledge of Asarco,
no fact or condition exists or is contemplated or threatened which is reasonably
likely to cause such a change in the future.
Section 3.7 Empresa Financial Statements and No Material Changes.
(a) Asarco has heretofore furnished Coeur with the consolidated balance sheets
of Empresa (the "Empresa Balance Sheet") as of March 31, 1999 (the "Empresa
Balance Sheet Date", and the related consolidated statements of income. The
Empresa Balance Sheet is attached as Schedule 3.7. The financial statements
referred to above, including the footnotes thereto, except as indicated therein,
have been prepared in accordance with GAAP consistently followed throughout the
periods indicated.
(b) The Empresa Balance Sheet fairly presents, in all material
respects, the financial condition of Empresa at the date thereof. Since the
Empresa Balance Sheet Date there has been (x) no material adverse change in the
Condition of Empresa , taken as a whole, and (y) no change in the Condition of
Empresa except in the ordinary course of business, and, to the best knowledge of
Asarco, no fact or condition exists or is contemplated or threatened which is
reasonably likely to cause such a change in the future.
Section 3.8 Books and Records. (a) The minute books of NPMC, as
previously made available to Coeur and its representatives, contain accurate
records of all meetings of, and corporate action taken by (including action
taken by written consent), the respective shareholders and boards of directors
of NPMC.
(b) The minute books of Empresa, as previously made available to
Coeur and its representatives, contain accurate records of all meetings of, and
corporate action taken by (including action taken by written consent), the
respective partners of Empresa .
c) The minute books of Silver Valley, as previously made available
to Coeur and its representatives, contain accurate records of all meetings of,
and corporate action taken by (including action taken by written consent), the
respective shareholders and boards of directors of Silver Valley.
Section 3.9 Title to Personal Properties; Encumbrances. (a) Except
for properties and assets which have been sold or otherwise disposed of in the
ordinary course of business, NPMC has good, valid and marketable title to: (i)
all of its material personal properties and material assets (tangible and
intangible), including, without limitation, all of the properties and assets
reflected in the NPMC Balance Sheet; and (ii) all of the material personal
properties and material assets purchased by NPMC since the NPMC Balance Sheet
Date; in each case free and clear of all Liens except Permitted Liens.
(b) Except for properties and assets which have been sold or
otherwise disposed of in the ordinary course of business, Empresa has good,
valid and marketable title to: (i) all of its material personal properties and
material assets (tangible and intangible), including, without limitation, all of
the properties and assets reflected in the Empresa Balance Sheet; and (ii) all
of the material personal properties and material assets purchased by Empresa
since the Empresa Balance Sheet Date; in each case free and clear of all Liens
except Permitted Liens.
(c) Except for properties and assets which have been sold or
otherwise disposed of in the ordinary course of business, Silver Valley has
good, valid and marketable title to: (i) all of its material personal properties
and material assets (tangible and intangible), including, without limitation,
all of the properties and assets reflected in the Silver Valley Balance Sheet;
and (ii) all of the material personal properties and material assets purchased
by Silver Valley since the Silver Valley Balance Sheet Date; in each case free
and clear of all Liens except Permitted Liens.
Section 3.10 Consents and Approvals; No Violations. (a) Other than
in connection with or in compliance with the specific provisions of the HSR Act,
or as set forth on Schedule 3.10 attached hereto, the execution and delivery of
this Agreement by Asarco and the consummation by Asarco of the transactions
contemplated hereby will not: (1) violate any provision of the certificate of
incorporation, by-laws or other organizational document of Asarco; (2) violate
any statute, ordinance, rule, regulation, order or decree of any court or of any
governmental or regulatory body, agency or authority applicable to Asarco or by
which any of its respective properties or assets may be bound; (3) require
Asarco to make or obtain any filing with, or permit, consent or approval of, or
give any notice to, any governmental or regulatory body, agency or authority; or
(4) result in a violation or breach of, conflict with or constitute a default
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, franchise, permit, agreement, lease, franchise agreement or
other instrument or obligation to which Asarco is a party, or by which Asarco or
any of its properties or assets is bound except in the case of clauses (3) and
(4) above, for such violations, filings, permits, consents, approvals, notices,
breaches or conflicts which would not have a material adverse effect on the
ability of Asarco to consummate the transactions contemplated hereby or to
perform its obligations hereunder.
(b) Other than in connection with or in compliance with the specific
provisions of the HSR Act, or as set forth on Schedule 3.10 attached hereto, the
execution and delivery of this Agreement by Asarco and the consummation by
Asarco of the transactions contemplated hereby will not: (1) violate any
provision of the certificate of incorporation or by-laws of NPMC, Silver Valley
or Empresa; (2) violate any statute, ordinance, rule, regulation, order or
decree of any court or of any governmental or regulatory body, agency or
authority applicable to NPMC, Silver Valley or Empresa or by which any of the
respective properties or assets of NPMC, Silver Valley or Empresa may be bound;
(3) require NPMC, Silver Valley or Empresa to make or obtain any filing with or
permit, consent or approval of or give any notice to, any governmental or
regulatory body, agency or authority; or (4) result in a violation or breach of,
conflict with, constitute (with or without due notice or lapse of time or both)
a default under, or result in the creation of any Lien upon any of the
properties or assets of NPMC, Silver Valley or Empresa under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
franchise, permit, agreement, lease, franchise agreement or other instrument or
obligation to which NPMC, Silver Valley or Empresa is a party, or by which it or
any of their respective properties or assets is bound except in the case of
clauses (3) and (4) above, for such violations, filings, permits, consents,
approvals, notices, breaches or conflicts which would not have a material
adverse effect on the ability of Asarco to consummate the transactions
contemplated hereby or to perform its obligations hereunder.
Section 3.11 Compliance with Laws. NPMC, Silver Valley and Empresa
are in compliance in all material respects with all applicable laws, statutes,
ordinances, regulations, orders, judgments and decrees of any government or
political subdivision thereof, whether federal, state, or local and whether
domestic or foreign, or any agency or instrumentality thereof, or any court or
arbitrator, and has not received any notice that any violation of the foregoing
is being or may be alleged.
Section 3.12 Environmental Laws and Regulations. Except as set forth
on Schedule 3.12:
(a) NPMC, Silver Valley and Empresa are in compliance in all
material respects with all Environmental Laws and the requirements of any
Permits issued under such Environmental Laws with respect to any NPMC Property,
Silver Valley Property or Empresa Property;
(b) There are no past, pending or, to the best knowledge of Asarco,
threatened material Environmental Claims against NPMC, Silver Valley or Empresa
or any NPMC Property, Silver Valley Property or Empresa Property; and
(c) To the best knowledge of Asarco, there are no facts,
circumstances, conditions or occurrences regarding any NPMC Property, Silver
Valley Property or Empresa Property that could reasonably be anticipated: (i) to
form the basis of a material Environmental Claim against NPMC, Silver Valley or
Empresa, or any NPMC Property, Silver Valley Property or Empresa Property or
assets; or (ii) to cause such NPMC Property, Silver Valley Property or Empresa
Property or NPMC assets, Silver Valley assets or Empresa assets to be subject to
any material restrictions on its ownership, occupancy, use or transferability
under any Environmental Law.
Section 3.13 No Changes Since Balance Sheet Dates of NPMC, Silver
Valley Empresa. (a) Since the NPMC Balance Sheet Date, neither Asarco or NPMC
has taken any action which, if taken subsequent to the execution of this
Agreement and on or prior to the Closing Date, would constitute a breach of the
agreements set forth in clauses (a) through and including (n) of Section 5.1.
(b) Since the Empresa Balance Sheet Date, neither Asarco or Empresa
has taken any action which, if taken subsequent to the execution of this
Agreement and on or prior to the Closing Date, would constitute a breach of the
agreements set forth in clauses (a) through and including (n) of Section 5.1.
(c) Since the Silver Valley Balance Sheet Date, neither Asarco or
Silver Valley has taken any action which, if taken subsequent to the execution
of this Agreement and on or prior to the Closing Date, would constitute a breach
of the agreements set forth in clauses (a) through and including (m) of Section
5.1
Section 3.14 Litigation. Except as set forth on Schedule 3.14
attached hereto, there is no action, suit, proceeding at law or in equity,
arbitration or administrative or other proceeding by or before (or to the best
knowledge of Asarco any investigation by) any governmental or other
instrumentality or agency, pending, or, to the best knowledge of Asarco,
threatened, against or affecting NPMC, Silver Valley or Empresa, or any of their
properties or rights which would materially adversely affect the right or
ability of such companies to perform their obligations pursuant to this
Agreement or which would materially adversely affect the right or ability of
such companies to carry on their respective business as now conducted, or to own
their respective assets, or which would materially adversely affect the
Condition of such companies. Neither NPMC, Silver Valley or Empresa is subject
to any judgment, order or decree entered in any lawsuit or proceeding which
would materially adversely affect the right or ability of such companies to
perform its obligations pursuant to this Agreement or which would have a
material adverse effect on the Condition of such companies.
Section 3.15 Taxes.
(a) Each of NPMC, Silver Valley and Empresa has timely filed or caused to
be timely filed with the appropriate taxing authorities all Returns
that are required to be filed by, or with respect to, NPMC, Silver
Valley or Empresa on or prior to the Closing Date. The Returns have
accurately reflected and will accurately reflect all liability for
Taxes of NPMC, Silver Valley and Empresa for the periods covered
thereby.
(b) Each of NPMC, Silver Valley and Empresa has each timely paid the
taxes shown on such Returns as due and with respect to any Taxes of
NPMC, Silver Valley and Empresa not yet due and payable, adequate
reserves and accruals in all material respects for such Taxes have
been made in the Financial Statements or in the books and records of
these companies.
(c) Neither NPMC, Silver Valley or Empresa has received written notice
from any taxing authority of any material deficiency, claim or other
dispute relating to the payment or assessment of any Taxes for any
period which remains unsettled at the date hereof.
(d) Neither NPMC, Silver Valley or Empresa has executed any waiver of any
statute of limitations on the assessment or collection of Taxes or
executed any agreement now in effect extending the period of time to
assess or collect any Taxes.
(e) Neither NPMC, Silver Valley or Empresa is or has been a United States
real property holding corporation within the meaning of Section 897
(c) (2) of the Code.
Section 3.16 Liabilities. Neither NPMC, Silver Valley or Empresa has
any material outstanding claims, liabilities or indebtedness, contingent or
otherwise, except as set forth in the their respective Balance Sheets or
referred to in the footnotes thereto, other than liabilities in the ordinary
course of business. Neither NPMC, Silver Valley or Empresa is in material
default in respect of the terms or conditions of any material indebtedness.
Section 3.17 Employment Relations. Except as disclosed in schedule
3.17, (a) each of NPMC, Silver Valley and Empresa is in substantial compliance
with all federal, state or other applicable laws, domestic or foreign,
respecting employment and employment practices, terms and conditions of
employment and wages and hours, and has not and is not engaged in any unfair
labor practice;
(b) no unfair labor practice complaint against NPMC, Silver
Valley or Empresa is pending before the National Labor Relations Board or any
other similar board or tribunal; and
(c) there is no labor strike, dispute, slowdown or stoppage
actually pending or threatened against or involving NPMC, Silver Valley or
Empresa.
Section 3.18 Brokers' or Finders' Fees. No agent, broker, person or
firm acting on behalf of Asarco is, or will be, entitled to any commission or
brokers' or finders' fees from any of the Parties hereto, or from any Affiliate
of any of the Parties hereto, in connection with any of the transactions
contemplated by this Agreement.
Section 3.19 Bank Accounts. Not less than five (5) days prior to the
Closing Date, NPMC, Silver Valley and Empresa shall deliver to Coeur a list as
of such date of all bank and securities accounts and lockboxes maintained by
them, a list of persons authorized to sign on behalf of each with respect to
each such account, a list of persons with authorized access to each such lockbox
and a list of the balances in such accounts and lockboxes as of the most recent
reasonably practicable date.
Section 3.20 Title to Assets. NPMC, Silver Valley and Empresa has
good valid title to all of the properties and assets owned by it, free and clear
of all Liens except for Permitted Liens. Each owns or has the right to use all
properties and assets used in the operation of its businesses as currently
conducted.
Section 3.21 Access to Empresa information. Asarco has provided
Coeur access to all relevant data and information with respect the Empresa
Property.
Section 3.22 No Registration. Asarco acknowledges that the Common
Stock acquired by it pursuant to the Transaction Agreement has not been
registered pursuant to the 1933 Act. Asarco acknowledges that (i) it acquired
Common Stock pursuant to the Transaction Agreement for its own account for
investment and not for distribution within the meaning of the 1933 Act, (ii) it
is capable of evaluating the merits and risks of acquiring the Common Stock and
has the financial ability to bear such risks, (iii) it has had access to such
information as it considers relevant for purposes of such acquisition and (iv)
for such time period as is required under the 1933 Act, certificates
representing such Common Stock will bear the following legend referring to the
1933 Act:
The securities evidenced hereby have not been registered under
the Securities Act of 1933, or the laws of any other
jurisdiction, and may not be sold, transferred assigned, pledged
or otherwise distributed unless there is an effective
registration statement under such Act and applicable securities
laws covering such securities or Coeur d'▇▇▇▇▇ ▇▇▇▇▇ Corporation
receives an opinion of counsel for the holder of the securities
(concurred in by counsel for Coeur) stating that such sale,
transfer, assignment, pledge, or distribution is exempt from the
registration and prospectus delivery requirements of such Act and
applicable securities laws.
Asarco agrees not to, and agrees to cause each of its Affiliates not
to, sell or transfer, any Common Stock, unless a Registration Statement is
effective for such Common Stock under the 1933 Act or, in the opinion of counsel
to Asarco reasonably acceptable to Coeur, such transaction is exempt from the
registration requirements of the 1933 Act. In addition, for a period of five
years from the Closing Date, Asarco agrees that unless Asarco first obtains the
consent of Coeur it shall not sell Common Stock other than to an Affiliate of
Asarco or pursuant to a widely distributed public offering.
ARTICLE IV
REPRESENTATIONS OF COEUR
Section 4.1 Representations of Coeur. Coeur represents, warrants and
agrees as follows:
Section 4.2 Issuance of Stock; Due Authorization; Enforceability.
(a) The New Coeur Stock shall be duly authorized, fully paid, nonassessable,
previously unissued shares of Coeur Common Stock (as defined below) not subject
to, nor issued in violation of, any preemptive rights and shall be free and
clear of all Liens. The New Coeur Stock shall have been duly authorized for
listing on the New York Stock Exchange subject only to notice of issuance, prior
to the Closing Date. The New Coeur Stock will not be registered pursuant to the
Securities Act at the time of the Closing. Coeur has full legal right, power and
authority to enter into this Agreement and to issue the shares of New Coeur
Stock pursuant to this Agreement. The delivery to Asarco of the New Coeur Stock
pursuant to the provisions of this Agreement will transfer to Asarco at Closing
ownership of not less than 24.5% of the Coeur Common Stock then outstanding.
(b) Coeur has the requisite corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. The
execution, delivery and performance of this Agreement and the transactions
contemplated hereby by Coeur must be duly authorized and approved by the board
of directors of Coeur and the affirmative vote of holders of Coeur Common Stock
representing a majority of the Coeur Common Stock that is present and voting at
a meeting at which a quorum is present. No other corporate action on the part of
Coeur is necessary to authorize the execution, delivery and performance of this
Agreement and the transactions contemplated hereby by Coeur.
(c) This Agreement and all other instruments and agreements to be
executed and delivered by Coeur as contemplated hereby when delivered in
accordance with the terms hereof, assuming the due execution and delivery of
this Agreement and each such other document by the other parties thereto, shall
have been duly executed and delivered by Coeur and shall be a valid and binding
obligations of Coeur, enforceable against Coeur in accordance with its terms,
except to the extent that its enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and to general equitable principles.
Section 4.3 Existence and Good Standing. Coeur is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Idaho. Coeur has the power to own its property and to carry on its business as
now being conducted. Coeur is duly qualified to do business and is in good
standing in each jurisdiction in which the character or location of the
properties owned, leased or operated by Coeur or the nature of the business
conducted by Coeur makes such qualification necessary, except for such
jurisdictions where the failure to be so qualified or licensed and in good
standing would not have a material adverse effect on the Condition of Coeur and
its Subsidiaries (the "Coeur Subsidiaries"), taken as a whole.
Section 4.4 Capital Stock. Coeur has an authorized capitalization
consisting of 60,000,000 shares of common stock $1.00, par value ("Coeur Common
Stock"), of which 21,900,579 shares are issued and outstanding, 743,483 shares
are being held in reserve for issuance upon the exercise of outstanding stock
options 7,863,472 shares are reserved for issuance upon conversion of the
outstanding Coeur Mandatory Adjustable Convertible Securities (the "MARCS"),
1,791,278 shares are reserved for issuance upon conversion of the outstanding
Coeur 6% Convertible Subordinated Debentures Due 2002, 3,623,282 shares are
reserved for issuance upon conversion of the outstanding Coeur 6 3/8%
Convertible Subordinated Debentures Due 2004, 6,147,679 shares are reserved for
issuance upon conversion of the outstanding Coeur 7 1/4% Convertible
Subordinated Debentures Due 2005 and 1,059,211 shares are held in the Coeur
treasury. All such outstanding shares have been duly authorized and validly
issued and are fully paid and nonassessable and are not subject to, nor were
they issued in violation of, any preemptive rights. Except as described above or
as described on Schedule 4.4 hereto, no shares of capital stock of Coeur are
authorized, issued or outstanding and there are no outstanding or authorized
options, warrants, rights, subscriptions, claims of any character, agreements,
obligations, convertible or exchangeable securities, or other commitments
contingent or otherwise, relating to capital stock of Coeur, pursuant to which
Coeur is or may become obligated to issue or purchase shares of Coeur Common
Stock, any other shares of capital stock of Coeur or any securities convertible
into, exchanged for, or evidencing the right to subscribe for, any shares of the
capital stock of Coeur. Coeur has no authorized or outstanding bonds,
debentures, notes or other indebtedness the holders of which have the right to
vote (or which is convertible or exchangeable into or exercisable for securities
having the right to vote) with the stockholders of Coeur or any of its
subsidiaries on any matter except as described on schedule 4.4 hereto.
Section 4.5 SEC Documents. Coeur has furnished to Asarco each
registration statement, proxy statement or information statement, including all
exhibits thereto, prepared by Coeur since December 31, 1995, including, without
limitation: (a) its Annual Report on Form 10-K for its fiscal year ended
December 31, 1998 (the "Coeur Balance Sheet Date"), which includes the
consolidated balance sheet for Coeur as of such date (the "Coeur Balance Sheet")
and Coeur's Quarterly Reports on Form 10-Q and Reports on Form 8-K filed since
the filing of such Annual Report; and (b) its proxy statement for its annual
meeting of stockholders held on May 12, 1998, each of (a) and (b) in the form
(including exhibits and any amendments thereto) filed with the SEC, the items in
(a) being the "Coeur Financial Reports". As of their respective dates, the items
in (a) and (b) (including, without limitation, any financial statements or
schedules included or incorporated by reference therein, were prepared in all
material respects in accordance with the applicable requirements of the Exchange
Act and the respective rules and regulations thereunder and did not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements made therein, in the light
of the circumstances under which they were made, not misleading. The 1997 and
1998 consolidated financial statements of Coeur and the Coeur Subsidiaries
included in or incorporated by reference into the Coeur Financial Reports
(including the related notes and schedules) present fairly, in all material
respects, the consolidated financial position of Coeur at December 31, 1997 and
1998, and the consolidated results of operations and cash flows for such fiscal
years in conformity with GAAP. Since the Coeur Balance Sheet Date there has been
(x) no material adverse change in the Condition of Coeur and the Coeur
Subsidiaries, taken as a whole, and (y) no change in the Condition of Coeur or
the Coeur Subsidiaries except in the ordinary course of business, and, to the
best knowledge of Coeur, no fact or condition exists or is contemplated or
threatened which is reasonably likely to cause such a change in the future.
Section 4.6 Books and Records. The respective minute books of Coeur
and the Coeur Subsidiaries, as previously made available to Asarco and their
representatives, contain accurate records of all meetings of, and corporate
action taken by (including action taken by written consent), the respective
shareholders and boards of directors of Coeur and each Coeur Subsidiary.
Section 4.7 Title to Personal Properties; Encumbrances. Except for
properties and assets which have been sold or otherwise disposed of in the
ordinary course of business, Coeur and each Coeur Subsidiary has good, valid and
marketable title to (a) all of its material personal properties and material
assets (tangible and intangible), including, without limitation, all of the
properties and assets reflected in the Coeur Balance Sheet, except as indicated
in the notes thereto, and (b) all of the material personal properties and
material assets purchased by Coeur or any Coeur Subsidiary since the Coeur
Balance Sheet Date; in each case free and clear of all Liens except Permitted
Liens.
Section 4.8 Consents and Approvals; No Violations. (a) Other than in
connection with or in compliance with the specific provisions of the HSR Act, or
as set forth on Schedule 4.8 attached hereto, the execution and delivery of this
Agreement by Coeur and the consummation by Coeur of the transactions
contemplated hereby will not: (1) violate any provision of the certificate of
incorporation, by-laws or other organizational document of Coeur; (2) violate
any statute, ordinance, rule, regulation, order or decree of any court or of any
governmental or regulatory body, agency or authority applicable to Coeur or by
which any of its properties or assets may be bound; (3) require Coeur to make or
obtain any filing with, or permit, consent or approval of, or give any notice
to, any governmental or regulatory body, agency or authority; or (4) result in a
violation or breach of, conflict with, constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation, payment or acceleration) under, or result in the creation of any
Lien upon any of the properties or assets of Coeur under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
franchise, permit, agreement, lease, franchise agreement or other instrument or
obligation to which Coeur is a party, or by which Coeur or any of its respective
properties or assets is bound except in the case of clauses (3) and (4) above,
for such violations, filings, permits, consents, approvals, notices, breaches or
conflicts which would not have a material adverse effect on (i) the Condition of
Coeur and the Coeur Subsidiaries, taken as a whole, or (ii) the ability of Coeur
to consummate the transactions contemplated hereby or to perform its obligations
hereunder.
(b) Other than in connection with or in compliance with the specific
provisions of the HSR Act, or as set forth on Schedule 4.8 attached hereto, the
execution and delivery of this Agreement by Coeur and the consummation by Coeur
of the transactions contemplated hereby will not: (1) violate any provision of
the certificate of incorporation or by-laws of any of the Coeur Subsidiaries;
(2) violate any statute, ordinance, rule, regulation, order or decree of any
court or of any governmental or regulatory body, agency or authority applicable
to any of the Coeur Subsidiaries or by which any of their respective properties
or assets may be bound; (3) require any of the Coeur Subsidiaries to make or
obtain any filing with or permit, consent or approval of or give any notice to,
any governmental or regulatory body, agency or authority; or (4) result in a
violation or breach of, conflict with, constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation, payment or acceleration) under, or result in the creation of any
Lien upon any of the properties or assets of any of the Coeur Subsidiaries
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, franchise, permit, agreement, lease, franchise agreement or
other instrument or obligation to which any of the Coeur Subsidiaries is a
party, or by which it or any of their respective properties or assets is bound
except in the case of clauses (3) and (4) above, for such violations, filings,
permits, consents, approvals, notices, breaches or conflicts which would not
have a material adverse effect on (i) the Condition of Coeur and the Coeur
Subsidiaries, taken as a whole, or (ii) the ability of Coeur to consummate the
transactions contemplated hereby or to perform its obligations hereunder.
Section 4.9 Litigation. Except as set forth in note (N) to the Coeur
Financial Report, there is no action, suit, proceeding at law or in equity,
arbitration or administrative or other proceeding by or before (or to the best
knowledge of Coeur any investigation by) any governmental or other
instrumentality or agency, pending, or, to the best knowledge of Coeur,
threatened, against or affecting Coeur or any of the Coeur Subsidiaries, or any
of their properties or rights which would materially adversely affect the right
or ability of Coeur to perform its obligations pursuant to this Agreement or
which would materially adversely affect the right or ability of Coeur or any of
the Coeur Subsidiaries to carry on their respective business as now conducted,
or to own their respective assets, or which would materially adversely affect
the Condition of Coeur and the Coeur Subsidiaries, taken as a whole. Neither
Coeur nor any of the Coeur Subsidiaries is subject to any judgment, order or
decree entered in any lawsuit or proceeding which would materially adversely
affect the right or ability of Coeur to perform its obligations pursuant to this
Agreement or which would have a material adverse effect on the Condition of
Coeur and the Coeur Subsidiaries, taken as a whole.
Section 4.10 Taxes.
(a) Coeur has timely filed or caused to be timely filed with the
appropriate taxing authorities all Returns that are required to be
filed by, or with respect to, Coeur on or prior to the Closing
Date. The Returns have accurately reflected and will accurately
reflect all liability for Taxes of Coeur for the periods covered
thereby. Coeur has timely paid the taxes shown on such returns as
due and owing.
(b) With respect to any Taxes of Coeur and its Subsidiaries not yet
due and payable, adequate reserves and accruals in all material
respects for such Taxes have been made in the Financial Statements
or in the books and records of these companies.
(c) Neither Coeur or its Subsidiaries have received written notice
from any taxing authority of any material deficiency, claim or
other dispute relating to the payment or assessment of any Taxes
for any period which remains unsettled at the date hereof.
(d) Neither Coeur or its Subsidiaries have executed any waiver of any
statute of limitations on the assessment or collection of Taxes or
executed any agreement now in effect extending the period of time
to assess or collect any Taxes.
(e) Neither Coeur or its Subsidiaries are or have been a United States
real property holding corporation within the meaning of Section
897 (c) (2) of the Code.
Section 4.11 Liabilities. Neither Coeur nor any of the Coeur
Subsidiaries has any material outstanding claims, liabilities or indebtedness,
contingent or otherwise, except as set forth in the Coeur Balance Sheet or
referred to in the footnotes thereto, other than liabilities to trade creditors
incurred subsequent to the Coeur Balance Sheet Date in the ordinary course of
business not involving borrowings by Coeur or any Coeur Subsidiary. Neither
Coeur nor any of the Coeur Subsidiaries is in material default in respect of the
terms or conditions of any material indebtedness.
Section 4.12 Compliance with Laws. Each of Coeur and the Coeur
Subsidiaries is in compliance in all material respects with all applicable laws,
statutes, ordinances, regulations, orders, judgments and decrees of any
government or political subdivision thereof, whether federal, state, or local
and whether domestic or foreign, or any agency or instrumentality thereof, or
any court or arbitrator, and has not received any notice that any violation of
the foregoing is being or may be alleged.
Section 4.13 Employment Relations. Except as disclosed on Schedule
4.13, (a) Each of Coeur and the Coeur Subsidiaries is in substantial compliance
with all federal, state or other applicable laws, domestic or foreign,
respecting employment and employment practices, terms and conditions of
employment and wages and hours, and has not and is not engaged in any unfair
labor practice.
(b) No unfair labor practice complaint against Coeur or any of the
Coeur Subsidiaries is pending before the National Labor Relations Board or any
other similar board or tribunal.
(c) There is no labor strike, dispute, slowdown or stoppage actually
pending or threatened against or involving Coeur or any of the Coeur
Subsidiaries
For the purpose of this paragraph 4.13(a),(b), and (c) only Silver
Valley which is owned 50% each by Coeur and Asarco is deemed to be an Asarco
subsidiary and not a Coeur subsidiary.
Section 4.14 Environmental Laws and Regulations. Except as set forth
in note (N) to the Coeur Financial Reports:
(a) Coeur and the Coeur Subsidiaries are in compliance in all
material respects with all Environmental Laws and the requirements of
any permits issued under such Environmental Laws with respect to any
Coeur Property;
(b) There are no past, pending or, to the best knowledge of
Coeur, threatened material Environmental Claims against Coeur, any of
the Coeur Subsidiaries or any Coeur Property; and
(c) To the best knowledge of Coeur, there are no facts,
circumstances, conditions or occurrences regarding any Coeur Property
that could reasonably be anticipated: (i) to form the basis of a
material Environmental Claim against Coeur, any of the Coeur
Subsidiaries or any Coeur Property or assets; or (ii) to cause such
Coeur Property or assets to be subject to any material restrictions on
its ownership, occupancy, use or transferability under any
Environmental Law.
Section 4.15 No Changes Since Coeur Balance Sheet Date. Since the
Coeur Balance Sheet Date, neither Coeur nor any of the Coeur Subsidiaries has
taken any action which, if taken subsequent to the execution of this Agreement
and on or prior to the Closing Date, would constitute a breach of Coeur's
agreements set forth in clauses (a) through and including (o) of Section 6.2.
Section 4.16 Brokers' or Finders' Fees. No agent, broker, person or
firm acting on behalf of Coeur is, or will be, entitled to any commission or
brokers' or finders' fees from any of the Parties hereto, or from any Affiliate
of any of the Parties hereto, in connection with any of the transactions
contemplated by this Agreement.
ARTICLE V
COVENANTS OF ASARCO
Section 5.1 Conduct of Business of NPMC, Silver Valley and Empresa.
During the period from the date of this Agreement to the Closing, Asarco shall
cause NPMC, Silver Valley and Empresa to conduct their respective operations
according to their ordinary and usual course of business and to use their best
efforts to preserve intact their respective business organizations, keep
available the services of their officers and employees and maintain satisfactory
relationships with licensors, suppliers, distributors, clients and others having
business relationships with them. Notwithstanding the immediately preceding
sentence, prior to the Closing, except as may be first approved in writing by
Coeur or as is otherwise specifically permitted or required by this Agreement,
Asarco will cause:
(a) each of NPMC's, Silver Valley's and Empresa's respective
certificates of incorporation and by-laws (or comparable governing
documents) to be maintained in their form on the date of this
Agreement;
(b) NPMC, Silver Valley and Empresa not to enter into or
materially amend any material contract or commitment including any
labor-management agreement except in the ordinary course of business,
(c) NPMC, Silver Valley and Empresa not to authorize for
issuance, issue, sell, deliver or agree or commit to issue, sell or
deliver any stock of any class or any other securities or to make any
other changes in their respective capital structures;
(d) NPMC, Silver Valley and Empresa not to incur or modify any
liability or obligation of any nature (whether accrued, absolute,
contingent or otherwise), except in the ordinary course of business
consistent with past practice;
(e) NPMC, Silver Valley and Empresa not to permit any of their
respective material assets to be subject to any Lien (other than
Permitted Liens);
(f) NPMC, Silver Valley and Empresa not to sell, transfer or
otherwise dispose of any material assets except in the ordinary course
of business consistent with past practice, or make any acquisition of
all or any part of the properties, capital stock or business of any
other Person;
(g) NPMC, Silver Valley and Empresa not to declare, pay or set
aside any dividend or make any distribution with respect to, or split,
combine, redeem or reclassify, purchase or otherwise acquire directly,
or indirectly, any shares of their respective capital stock;
(h) NPMC, Silver Valley and Empresa not to make any tax
election or settle and/or compromise any material tax liability;
(i) NPMC, Silver Valley and Empresa not to make any change in
any method of accounting or auditing practice, or replace the auditors
responsible for the auditing of each of NPMC, Silver Valley and
Empresas' books, records or financial statements;
(j) NPMC not to pay, discharge or satisfy any claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than payment, discharge or satisfaction
in the ordinary course of business and consistent with past practice of
liabilities reflected or reserved against in their respective financial
reports;
(k) Silver Valley not to pay, discharge or satisfy any claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than payment, discharge or satisfaction
in the ordinary course of business and consistent with past practice of
liabilities reflected or reserved against in their respective financial
reports;
(l) Empresa not to pay, discharge or satisfy any claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than payment, discharge or satisfaction
in the ordinary course of business and consistent with past practice of
liabilities reflected or reserved against in their respective financial
reports; and
(m) NPMC, Silver Valley and Empresa not to commit or agree,
whether or not in writing, to do any of the foregoing.
Asarco agrees not to take any action, or omit to take any action, which would
cause the representations and warranties contained in Article III hereof to be
untrue or incorrect. During the period from the date of this Agreement to the
Closing, Asarco shall cause NPMC, Silver Valley and Empresa to confer on a
regular and frequent basis with one or more designated representatives of Coeur
to report material operational matters and to report the general status of
ongoing operations. Asarco shall cause NPMC, Silver Valley and Empresa to notify
Coeur of any unexpected emergency or other change in the normal course of its
business or in the operation of its properties and of any governmental
complaints, investigations or hearings (or communications indicating that the
same may be contemplated), adjudicatory proceedings, or submissions involving
any material property of NPMC, Silver Valley, Empresa, any NPMC Subsidiary,
Silver Valley Subsidiary or any Empresa Subsidiary, and to keep Coeur fully
informed of such events and permit its representatives prompt access to all
materials prepared in connection therewith.
Section 5.2 Required Material. Asarco agrees to furnish to Coeur
material, reasonably necessary, including financial statements (audited, at
Coeur's cost, if necessary), to assist Coeur in preparing a proxy statement to
be sent to its shareholders seeking approval of the issuance to Asarco of New
Coeur shares required by the terms of this Agreement.
ARTICLE VI
COVENANTS OF COEUR
Section 6.1 Coeur Shareholder Approval; Voting and issue of the New
Coeur Shares. After execution of this Agreement, if the Coeur board of directors
approves this Agreement, Coeur shall take all action necessary, in accordance
with applicable law and its certificate of incorporation and by-laws, to convene
a meeting of the holders of the outstanding shares of Coeur Common Stock and
MARCS (together, the "Capital Stock") at its regularly scheduled or rescheduled
annual meeting, and if such a meeting is not feasible, to hold a special meeting
of holders of Coeur Capital Stock not later than September 10, 1999 to consider
and vote upon the approval of the issuance of the New Coeur Stock pursuant to
this Agreement . Coeur shall take all reasonable and lawful action to solicit
proxies from its shareholders pursuant to proxy materials (which proxy materials
shall be submitted in draft form for review and comment by Asarco's counsel)
which recommend that such holders of Coeur Capital Stock vote in favor of the
issuance of the New Coeur Stock pursuant to this Agreement; provided, however
that the board of directors of Coeur shall not be required to make such
recommendation if the board of directors of Coeur reasonably determines in good
faith, based as to legal matters on the written advice of outside legal counsel
acceptable to Asarco, acting reasonably, that such action would violate its
fiduciary duties. Asarco shall coordinate and cooperate with Coeur with respect
to the timing of such meeting and Coeur shall hold such meeting as soon as is
practicable.
Section 6.2 Conduct of Business of Coeur. During the period from the
date of this Agreement to the Closing, Coeur shall and shall cause each of the
Coeur Subsidiaries to conduct their respective operations only according to
their ordinary and usual course of business and to use their best efforts to
preserve intact their respective business organizations, keep available the
services of their officers and employees and maintain satisfactory relationships
with licensors, suppliers, distributors, clients and others having business
relationships with them. Notwithstanding the immediately preceding sentence,
prior to the Closing, except as may be first approved in writing by Asarco or as
is otherwise specifically permitted or required by this Agreement, Coeur shall:
(a) not make any material amendment of the By-Laws or Articles of
Incorporation of Coeur which would be inconsistent with the principles
of this Agreement or the Shareholder's Agreement;
(b) not increase the number of directors of Coeur above eleven;
(c) not authorize and shall cause each of the Coeur Subsidiaries
to not authorize for issuance, issuing, selling, delivering or
agreeing or committing to issue, sell or deliver (whether through the
issuance or granting of Consolidated Coeur Options or otherwise) any
stock of any class or any other securities, except for the issuance of
capital stock by Coeur at fair market value for cash in aggregate
value not in excess of $100,000,000 and not to make any other changes
in its capital structure;
(d) not incur or modify and shall cause each of the Coeur
Subsidiaries not to incur or modify any liability or obligation of any
nature (whether accrued, absolute, contingent or otherwise), except in
the ordinary course of business consistent with past practice;
(e) not permit and shall cause each of the Coeur Subsidiaries not
to permit any of their respective material assets to be subject to any
Lien (other than Permitted Liens) in excess of $100,000,000 in
aggregate value;
(f) not to sell, transfer or otherwise dispose of and shall cause
each of the Coeur Subsidiaries not to sell, transfer or otherwise
dispose of any material assets except in the ordinary course of
business consistent with past practice, or make any acquisition of all
or any part of the properties, capital stock or business of any other
Person;
(g) not make and shall cause each of the Coeur Subsidiaries not
to make any capital expenditure budgets, capital expenditure or
commitment therefore including approval of capital expenditure budgets
or any project requiring capital expenditures in excess of
$100,000,000;
(h) not remove or replace the Chief Executive Officer of Coeur;
(i) not declare, pay or set aside and shall cause each of the
Coeur Subsidiaries to not declare, pay or set aside any dividend or
make any distribution with respect to, or split, combine, redeem or
reclassify, purchase or otherwise acquire directly, or indirectly, any
shares of its capital stock;
(j) not increase and shall cause each of the Coeur Subsidiaries
not to increase any indebtedness for borrowed money, except current
borrowings and standard lines of credit or borrowing from banks to be
utilized or secured by Coeur or the Coeur Subsidiaries less than
$100,000,000 in aggregate consistent with past practice; provided,
however, no further approval is required for debt restructuring plans
currently under consideration ;
(m) not discharge auditors when a material dispute exists in
connection with the auditing of Coeur's books, records and/or
financial statements;
(n) not pay, discharge or satisfy and shall cause each of the
Coeur Subsidiaries not to pay, discharge or satisfy any claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than payment, discharge or
satisfaction in the ordinary course of business and consistent with
past practice of liabilities reflected or reserved against in the
financial statements of Coeur; and
(o) not commit or agree, whether or not in writing, and shall
cause each of the Coeur Subsidiaries not to commit or agree, whether
or not in writing, to do any of the foregoing.
Coeur agrees not to take any action, or omit to take any action,
which would cause the representations and warranties contained in Article IV
hereof to be untrue or incorrect. During the period from the date of this
Agreement to the Closing, Coeur shall confer on a regular and frequent basis
with one or more designated representatives of Asarco to report material
operational matters and to report the general status of ongoing operations.
Coeur shall and shall cause each of the Coeur Subsidiaries to notify Asarco of
any unexpected emergency or other change in the normal course of its business or
in the operation of its properties and of any governmental complaints,
investigations or hearings (or communications indicating that the same may be
contemplated), adjudicatory proceedings, or submissions involving any material
property of Coeur or any of the Coeur Subsidiaries, and to keep Asarco fully
informed of such events and permit its representatives prompt access to all
materials prepared in connection therewith.
ARTICLE VII
CONDITIONS OF OBLIGATIONS OF ASARCO
Section 7.1 Conditions of Obligations of Asarco. The exchange by
Asarco of the Asarco Interests for the New Coeur Stock at the Closing on the
Closing Date is conditioned upon satisfaction, at or prior to the Closing, of
the following conditions:
Section 7.2 Approval of Asarco Board of Directors. The board of
directors of Asarco shall have duly authorized and approved the execution,
delivery and performance of this Agreement and the transactions contemplated
hereby by Asarco.
Section 7.3 Approval of Coeur Stockholders and Directors. Holders of
at least a majority of the Coeur Capital Stock voting thereon shall have
approved the issuance of the New Coeur Stock pursuant to this Agreement and the
transactions contemplated hereby. The board of directors of Coeur shall have
duly authorized and approved the execution, delivery and performance by Coeur of
this Agreement and the Shareholder Agreement and the transactions contemplated
hereby and thereby. As part of such approvals, Coeur shall have taken all
necessary action to (i) exclude or exempt from all provisions of Coeur's
Shareholder's Rights Plan, Asarco's acquisition and ownership of up to 25% of
the issued and outstanding Coeur Common Stock, (ii) approve Asarco's acquisition
of, and the consideration paid by Asarco for, the New Coeur Stock for purposes
of any fair price provision applicable to Coeur so that no restrictions or
obligations shall be imposed on Asarco thereunder, (iii) exclude Asarco from any
restrictions or obligations that may be imposed by Idaho law (including the
Idaho Business Corporations Act) by reason of Asarco's acquisition and ownership
of up to 25% of Coeur Common Stock and (iv) determine that no adjustment to the
conversion price of any outstanding securities that are convertible into Coeur
Common Stock is required by reason of this Agreement that could increase the
amount of Coeur Common Stock issued upon conversion.
Section 7.4 Truth of Representations and Warranties. The
representations and warranties of Coeur contained in this Agreement or in any
Schedule attached hereto shall be true and correct in all material respects
(except to the extent such representations and warranties contain a materiality
or knowledge qualification, in which case they shall be true and correct in all
respects as so qualified) on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of such time,
and Coeur shall have delivered to Asarco a certificate, dated the Closing Date,
to such effect. The statement that the representations and warranties are true
in all material respects is deemed to include a statement that a representation
did not omit to state a material fact with respect to such representation that
is necessary to make such representation not misleading in the light of the
circumstances in which it was made and with respect to the specific subject
matter of such representation.
Section 7.5 Performance of Agreements. All of the agreements of
Coeur, as specified in Articles 2,4, 6 and 7 to be performed prior to the
Closing pursuant to the terms of this Agreement shall have been duly performed
in all material respects, and Coeur shall have delivered to Asarco a certificate
of an officer, dated the Closing Date, to such effect.
Section 7.6 Opinion of Coeur's Counsel. Coeur shall have furnished
Asarco with a favorable opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇, in
form and substance satisfactory to Asarco and its counsel, to the effect set
forth in Exhibit 2 attached hereto.
Section 7.7 Good Standing and Other Certificates. Coeur shall have
delivered to Asarco: (a) copies of Coeur's certificate of incorporation and the
certificate of incorporation of each Coeur Subsidiary, including all amendments
thereto, in each case certified by the Secretary of State or other appropriate
official of its jurisdiction of incorporation; (b) a certificate from the
Secretary of State or other appropriate official of their respective
jurisdictions of incorporation to the effect that each of Coeur and the Coeur
Subsidiaries is in good standing or subsisting in such jurisdiction and listing
all charter documents of Coeur and such Coeur Subsidiaries on file; (c) a
certificate from the Secretary of State or other appropriate official in each
state in which Coeur or any Coeur Subsidiary is qualified to do business to the
effect that Coeur or such Coeur Subsidiary is in good standing in such state;
and (d) a copy of the by-laws of Coeur and each Coeur Subsidiary, certified by
the Secretary of Coeur and each Coeur Subsidiary as being true and correct and
in effect on the Closing Date.
Section 7.8 No Material Adverse Change. Prior to the Closing, there
shall have been no Material Adverse Change in the Condition of Coeur and the
Coeur Subsidiaries, taken as a whole, and Coeur shall have delivered to Asarco a
certificate, dated the Closing Date, to such effect.
Section 7.9 No Litigation Threatened. No action or proceedings shall
have been instituted or threatened before a court or other government body or by
any public authority to restrain or prohibit any of the transactions
contemplated hereby, and Coeur shall have delivered to Asarco a certificate of
an officer, dated the Closing Date, to such effect.
Section 7.10 Execution of Shareholder Agreement. Coeur shall have
entered into a shareholder agreement substantially in the form of Exhibit 1
attached hereto.
Section 7.11 HSR Act Waiting Periods. All applicable waiting periods
under the HSR Act with respect to the transactions contemplated by this
Agreement shall have expired or been terminated.
Section 7.12 Approvals. All other governmental and third party
consents, waivers and approvals, if any, disclosed on any Schedule attached
hereto or necessary to permit the consummation of the transactions contemplated
by this Agreement shall have been received.
Section 7.13 Statutes. No statute, rule, regulation, executive
order, decree or order of any kind shall have been enacted, entered, promulgated
or enforced by any court or governmental authority which prohibits the
consummation of the transactions contemplated by this Agreement or has the
effect of making them illegal.
Section 7.14 Proceedings. All proceedings to be taken in connection
with the transactions contemplated by this Agreement and all documents incident
thereto shall be satisfactory in form and substance to Asarco and its counsel,
and Asarco shall have received copies of all such documents and other evidences
as it or its counsel may reasonably request in order to establish the
consummation of such transactions and the taking of all proceedings in
connection therewith.
ARTICLE VIII
CONDITIONS OF OBLIGATIONS OF COEUR
Section 8.1 Conditions of Obligations of Coeur. The exchange by
Coeur of the New Coeur Stock for the Asarco Interests at the Closing on the
Closing Date is conditioned upon satisfaction, at or prior to the Closing, of
the following conditions:
Section 8.2 Approval of Coeur Board of Directors. The board of
directors of Coeur shall have duly authorized and approved the execution,
delivery and performance of this Agreement and the transactions contemplated
hereby by Coeur.
Section 8.3 Approval of Coeur Shareholders. Holders of a majority of
the Coeur Capital Stock voting thereon shall have approved the issuance of the
New Coeur Stock pursuant to this Agreement and the transactions contemplated
hereby.
Section 8.4 Truth of Representations and Warranties. The
representations and warranties of Asarco contained in this Agreement or in any
Schedule attached hereto shall be true and correct in all material respects
(except to the extent such representations and warranties contain a materiality
or knowledge qualification, in which case they shall be true and correct in all
respects as so qualified) on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of such time,
and Asarco shall have delivered to Coeur a certificate, dated the Closing Date,
to such effect. The statement that the representations and warranties are true
in all material respects is deemed to include a statement that a representation
did not omit to state a material fact with respect to such representation that
is necessary to make such representation not misleading in the light of the
circumstances in which it was made and with respect to the specific subject
matter of such representation
Section 8.5 Performance of Agreements. All of the agreements of
Asarco to be performed prior to the Closing pursuant to the terms of this
Agreement shall have been duly performed in all material respects, and Asarco
shall have delivered to Coeur a certificate of an officer, dated the Closing
Date, to such effect.
Section 8.6 Opinion of Asarco's Counsel. Asarco shall have furnished
Coeur with a favorable opinion, dated the Closing Date, of its Associate General
Counsel, in form and substance satisfactory to Coeur and its counsel, to the
effect set forth in Exhibit 3 attached hereto.
Section 8.7 Good Standing and Other Certificates. Asarco shall have
delivered to Coeur: (a) copies of Asarco's certificate of incorporation and the
certificate of incorporation of NPMC, Silver Valley and Empresa, including all
amendments thereto, in each case certified by the Secretary of State or other
appropriate official of its jurisdiction of incorporation; (b) a certificate
from the Secretary of State or other appropriate official of their respective
jurisdictions of incorporation to the effect that NPMC, Silver Valley and
Empresa are in good standing or subsisting in such jurisdiction and listing all
charter documents of NPMC, Silver Valley and Empresa on file; (c) a certificate
from the Secretary of State or other appropriate official in each state in which
NPMC, Silver Valley and Empresa is qualified to do business to the effect that
NPMC and Empresa is in good standing in such state; and (d) a copy of the
by-laws of NPMC, Silver Valley and Empresa certified by the Secretary of NPMC,
Silver Valley and Empresa as being true and correct and in effect on the Closing
Date.
Section 8.8 No Material Adverse Change. Prior to the Closing, there
shall have been no Material Adverse Change in the Condition of NPMC, Silver
Valley and Empresa, taken as a whole, and Asarco shall have delivered to Coeur a
certificate of an officer, dated the Closing Date, to such effect.
Section 8.9 No Litigation Threatened. No action or proceedings shall
have been instituted or threatened before a court or other government body or by
any public authority to restrain or prohibit any of the transactions
contemplated hereby, and Asarco shall have delivered to Coeur a certificate,
dated the Closing Date, to such effect.
Section 8.10 Execution of Shareholder Agreement. Asarco shall have
entered into a shareholder agreement substantially in the form of Exhibit 1
attached hereto.
Section 8.11 HSR Act Waiting Periods. All applicable waiting periods
under the HSR Act with respect to the transactions contemplated by this
Agreement shall have expired or been terminated.
Section 8.12 Governmental Approvals. All other governmental and
third party consents, waivers and approvals, if any, disclosed on any Schedule
attached hereto or necessary to permit the consummation of the transactions
contemplated by this Agreement shall have been received.
Section 8.13 Statutes. No statute, rule, regulation, executive
order, decree or order of any kind shall have been enacted, entered, promulgated
or enforced by any court or governmental authority which prohibits the
consummation of the transactions contemplated by this Agreement or has the
effect of making them illegal.
Section 8.14 Proceedings. All proceedings to be taken in connection
with the transactions contemplated by this Agreement and all documents incident
thereto shall be satisfactory in form and substance to Coeur and its counsel,
and Coeur shall have received copies of all such documents and other evidences
as it or its counsel may reasonably request in order to establish the
consummation of such transactions and the taking of all proceedings in
connection therewith.
ARTICLE IX
SURVIVAL; INDEMNIFICATION
Section 9.1 Survival. The respective representations and warranties
of Asarco and Coeur contained in this Agreement shall survive for the applicable
statute of limitations period.
Section 9.2 Indemnification. (a) Asarco agrees to indemnify and hold
Coeur and its Affiliates and its respective officers, directors, employees,
agents and their respective successors and assigns (each a "Coeur Indemnitee")
harmless from damages, losses, liabilities, obligations, claims of any kind,
interest or expenses (including, without limitation, reasonable attorneys' fees
and expenses) ("Loss"), suffered or paid, directly or indirectly, as a result
of, in connection with or arising out of: (i) the failure of any representation
or warranty made by Asarco in this Agreement to be true and correct in all
material respects (except to the extent such representations and warranties
contain a materiality or knowledge qualification, in which case they shall be
true and correct in all respects as so qualified) as of the date of this
Agreement and as of the Closing; and (ii) any material breach or alleged
material breach by Asarco of any of its covenants or agreements contained
herein.
(b) Coeur agrees to indemnify, defend and hold Asarco and its
Affiliates and their respective officers, directors, employees, agents,
successors and assigns (each an "Asarco Indemnitee") harmless from Losses
suffered or paid, directly or indirectly, as a result of, in connection with or
arising out of: (i) the failure of any representation or warranty made by Coeur
in this Agreement to be true and correct in all respects (except to the extent
such representations and warranties contain a materiality or knowledge
qualification, in which case they shall be true and correct in all respects as
so qualified) as of the date of this Agreement and as of the Closing; and (ii)
any material breach or alleged material breach by Coeur of any of the covenants
or agreements contained herein and (iii) all liabilities and obligations
directly related to the Asarco Interests transferred to Coeur which are
reflected on, or reserved against, in the Silver Valley Balance Sheet, the NPMC
Balance Sheet, and the Empresa Balance Sheet to the extent reflected and
reserved against and which are set forth in Schedule 9.2(b), together with all
liabilities and obligations which arise subsequent to Closing resulting from
Coeur's ownership or operation of the Asarco Interests being transferred.
(c) The obligations to indemnify and hold harmless pursuant to this
Section 9.2 shall survive the consummation of the transactions contemplated by
this Agreement for the time periods set forth in ss.9.1, except for claims for
indemnification asserted prior to the end of such periods, which claims shall
survive until final resolution thereof.
(d) No Person shall be entitled to recovery for Losses pursuant to
sections 9.2(a) and 9.2(b) until the total amount of Losses exceeds $100,000;
provided, that to the extent the amount of Losses exceeds such amount, the
Indemnified Party shall be entitled to recover only the amount of Losses in
excess of such amount.
Section 9.3 Third Party Claims. If a claim by a third party is made
against any Person entitled to indemnification pursuant to Section 9.2 hereof
(an "Indemnified Party"), and if such party intends to seek indemnity with
respect thereto under this Article IX, such Indemnified Party shall promptly
notify the party obligated to indemnify such Indemnified Party (the
"Indemnifying Party") of such claims; provided, that the failure to so notify
shall not relieve the Indemnifying Party of its obligations hereunder, except to
the extent that the Indemnifying Party is actually and materially prejudiced
thereby. The Indemnifying Party shall have 20 Business Days after receipt of
such notice to assume the conduct and control, through counsel reasonably
acceptable to the Indemnified Party at the expense of the Indemnifying Party, of
the settlement or defense thereof; provided that: (i) the Indemnifying Party
shall permit the Indemnified Party to participate in such settlement or defense
through counsel chosen by such Indemnified Party; provided that the fees and
expenses of such counsel shall be borne by such Indemnified Party; and (ii) the
Indemnifying Party shall promptly assume and hold such Indemnified Party
harmless from and against the full amount of any Loss resulting therefrom. So
long as the Indemnifying Party is reasonably contesting any such claim in good
faith, the Indemnified Party shall not pay or settle any such claim.
Notwithstanding the foregoing, the Indemnified Party shall have the right to pay
or settle any such claim; provided that in such event it shall waive any right
to indemnity therefor by the Indemnifying Party for such claim unless the
Indemnifying Party shall have consented to such payment or settlement. If the
Indemnifying Party does not notify the Indemnified Party within 20 Business Days
after the receipt of the Indemnified Party's notice of a claim of indemnity
hereunder that it elects to undertake the defense thereof, the Indemnified Party
shall have the right to contest, settle or compromise the claim but shall not
thereby waive any right to indemnity therefor pursuant to this Agreement. The
Indemnifying Party shall not, except with the consent of the Indemnified Party,
enter into any settlement that does not include as an unconditional term thereof
the giving by the Person or Persons asserting such claim to all Indemnified
Parties of an unconditional release from all liability with respect to such
claim or consent to entry of any judgment.
ARTICLE X
TERMINATION AND ABANDONMENT
Section 10.1 Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned, at any time prior to the
Closing:
(a) by mutual consent of Asarco, on the one hand, and of Coeur, on
the other hand;
(b) by either Party if the Closing shall not have occurred by
September 30, 1999; provided, that the right to terminate this Agreement under
this Section 10.1(b) shall not be available to a Party whose failure to fulfill
any obligation under this Agreement shall be the cause of the failure of the
Closing to occur on or before such date;
(c) by Asarco, on the one hand, or Coeur, on the other hand, if
there has been a material breach of any covenant or a material breach of any
representation or warranty of Coeur or Asarco, respectively, provided, that any
such breach of a covenant or representation or warranty has not been cured
within 10 Business Days following receipt by the breaching Party of written
notice of such breach;
(d) by either Party, if there shall be any law or regulation of any
competent authority that makes consummation of the transactions contemplated
hereby, illegal or otherwise prohibited or if any judgment, injunction, order or
decree of any competent authority prohibiting such transactions is entered and
such judgment, injunction, order or decree shall become final and
non-appealable.
Section 10.2 Effect of Termination. In the event of the termination
of this Agreement pursuant to Section 10.1 by Asarco, on the one hand, or Coeur,
on the other hand, written notice thereof shall forthwith be given to the other
Party specifying the provision hereof pursuant to which such termination is
made, and this Agreement shall be terminated and there shall be no liability
hereunder on the part of Asarco or Coeur, except that (i) the provisions of
Section 11.1 and Section 11.3 shall survive any termination of this Agreement.
Nothing in this Section 10.2 shall relieve either Party of liability for any
willful breach of this Agreement.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Announcements. Asarco and Coeur will consult with each
other before any issuance by them of, and will provide each other the
opportunity to review, comment upon and concur with, any press release or other
public statements with respect to the transaction contemplated by this
Agreement, and shall not issue any such press release, or make any such public
statement prior to such consultation, except as is required by applicable law,
court process or by obligations pursuant to any listing agreement with any
national securities exchange.
Section 11.2 Cooperation After Closing. (a) From and after the
Closing Date, Coeur shall cooperate fully with and assist, and shall cause its
officers and employees to cooperate fully with and assist, Asarco and its
representatives (including, without limitation, its counsel and independent
auditors), in connection with:
(i) the preparation by Asarco, at its sole cost, of its portion of
any Federal consolidated income Tax Return, report or
declaration, and of any state consolidated, combined or
unitary income Tax Return, report or declaration;
(ii) any Tax audit, examination or proposed or final assessment or
the like (including without limitation any Tax Claim) relating
to NPMC, Silver Valley or Empresa; and
(iii) the preparation of any statement, report, notice, response or
other document for filing with the Securities and Exchange
Commission, any state or foreign securities commission or
authority, any other Governmental Authority or any securities
exchange or market, domestic or foreign, including, without
limitation, in connection with any comments or requests for
information, inquiries.
(b) Following the Closing, Coeur shall not destroy any information,
files, documents or records (written and computer) relating to
NPMC, Silver Valley or Empresa or any of its businesses or
operations without giving at least 30 days' prior written notice
to Asarco and shall permit Asarco to examine, duplicate (at its
expense) and/or transfer (at its expense) to its representatives
any of such information, files, documents or records.
(c) Upon the request of a party hereto at any time after the Closing
Date, the other party will forthwith execute and deliver such
further instruments of assignment, transfer, conveyance,
endorsement, direction or authorization and other documents as
the requesting party or its counsel may request in order to (i)
perfect title of Asarco (and its successors and assigns) to the
New Coeur Shares or (ii) perfect the ownership of Coeur of the
Asarco Interests acquired by it pursuant to the terms of this
Agreement.
(d) All business records (including technical data, maps, files,
reports, photos in hard copy; Asarco shall make reasonable
efforts to transfer such records in electronic format) of NPMC,
Silver Valley and Empresa shall be delivered to Coeur on the
Closing Date or as soon after Closing as is reasonably
practicable but in no event later than 30 days after the Closing
Date. Asarco may retain copies of any such records for the sole
purpose of complying with this Agreement and any other
requirement imposed by applicable law.
(e) Asarco shall provide Coeur with the use of certain of its
corporate computer systems and shall provide support for the use
of such systems (any out-of-pocket costs shall be for Coeur's
account) for a period not to exceed one year.
(f) Not later than 60 days after the Closing Date, Coeur shall return
to Asarco or, if so directed by Asarco, destroy any letterhead,
envelopes, brochures, marketing materials, invoices, forms or
similar materials bearing the Asarco name and/or logo, and shall
remove Asarco's name from the properties.
Section 11.3 Expenses. Each of the Parties hereto shall pay all of
its own expenses relating to their performance under, and the transactions
contemplated by, this Agreement, including, without limitation, the fees and
expenses of their respective legal, financial, accounting and other advisers;
provided, however, that the Parties shall share equally all filing fees of
either Party incurred pursuant to the HSR Act.
Section 11.4 Governing Law. The interpretation and construction of
this Agreement, and all matters relating hereto, shall be governed by the laws
of the State of Idaho applicable to agreements executed and to be performed
solely within such State.
Section 11.5 Jurisdiction. Any judicial proceeding brought against
any of the parties to this Agreement on any dispute arising out of this
Agreement or any matter related hereto may be brought in the courts of the State
of New York, or in the United States District Court for the Southern District of
New York, and, by execution and delivery of this Agreement, each of the Parties
to this Agreement accepts the non-exclusive jurisdiction of such courts, and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement. The prevailing Party in any such litigation shall be
entitled to receive from the losing Party all costs and expenses, including
reasonable counsel fees, incurred by the prevailing Party.
Section 11.6 Captions. The Article and Section captions used herein
are for reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
Section 11.7 Publicity. Asarco and Coeur agree that the initial
press release relating to this Agreement shall be released by both parties
concurrently and each party shall have consulted with the other to agree on such
press release and thereafter each Party shall, subject to its respective legal
obligations (including requirements of stock exchanges and other similar
regulatory bodies), consult with each other, and use reasonable efforts to agree
upon the text of any press release, before issuing any such press release or
otherwise making public statements with respect to the transaction contemplated
hereby and in making any filings with any federal or state governmental or
regulatory agency or with any national securities exchange with respect thereto.
Section 11.8 Notices. Any notice or other communication required or
permitted under this Agreement shall be sufficiently given if delivered in
person or sent by facsimile or by registered or certified mail, postage prepaid,
addressed as follows: if to Asarco, to: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: General Counsel; and if to Coeur to: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇, ▇▇▇▇▇ ▇'▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman,
President, and Chief Executive Officer or such other address or number as shall
be furnished in writing by any such Party, and such notice or communication
shall be deemed to have been given as of the date so delivered, sent by
facsimile or mailed.
Section 11.9 Parties in Interest. This Agreement may not be
transferred, assigned, pledged or hypothecated by any Party hereto, other than
by operation of law or with the written consent of the other Party. This
Agreement shall be binding upon and shall inure to the benefit of the Parties
hereto and their respective successors and permitted assigns.
Section 11.10 Counterparts. This Agreement may be executed in
counterparts, which taken together shall constitute one instrument.
Section 11.11 Entire Agreement. This Agreement, including the other
documents referred to herein which form a part hereof, contains the entire
understanding of the Parties hereto with respect to the subject matter contained
herein and therein. This Agreement supersedes all prior agreements and
understandings between the Parties with respect to such subject matter.
Section 11.12 Amendments. This Agreement may not be changed orally,
but this Agreement may be amended and any provision of this Agreement can be
waived, amended, supplemented or modified only by an agreement in writing signed
by Asarco and Coeur.
Section 11.13 No Third Party Beneficiaries. Other than in Section
9.2, each Party hereto intends that this Agreement shall not benefit or create
any right or cause of action in or on behalf of any Person other than the
Parties hereto.
IN WITNESS WHEREOF, each of Asarco and Coeur has caused this
Agreement to be executed by its officer thereunto duly authorized as of the day
and year first above written.
ASARCO INCORPORATED
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
COEUR D'▇▇▇▇▇ ▇▇▇▇▇ CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
