VOTING SUPPORT AGREEMENT
Exhibit 4
THIS AGREEMENT is made as of [•], 2022
BETWEEN:
[NAME], an individual resident in [•] (the “Shareholder”)
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HECLA MINING COMPANY, a corporation existing under the laws of the State of Delaware (“Hecla”)
WHEREAS the Shareholder is the beneficial owner of [•] Alexco Shares (the “Subject Shares”), [•] Alexco Options, [•] Alexco DSUs and [•] Alexco RSUs (together with the Subject Shares, the “Subject Securities”) in the issued and outstanding share capital of Alexco Resource Corp. (“Alexco”), as more particularly set forth in Schedule A attached hereto;
AND WHEREAS Hecla and Alexco have entered into an arrangement agreement (the “Arrangement Agreement”) concurrently with the entering into of this voting support agreement (the “Agreement”);
AND WHEREAS the Arrangement Agreement provides for Hecla to acquire all of the issued and outstanding shares of Alexco (the “Alexco Shares”) pursuant to a plan of arrangement under the provisions of the Business Corporations Act (British Columbia) (the “Arrangement”);
AND WHEREAS it is a requirement of Hecla that the Shareholder enter into this Agreement in connection with the entering into of the Arrangement Agreement, and the Shareholder has agreed to enter into this Agreement, subject to the terms and conditions hereof;
NOW THEREFORE in consideration of the mutual covenants and agreements set forth in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged) the parties hereto agree as follows:
ARTICLE 1
INTERPRETATION
| 1.1 | Definitions in Arrangement Agreement |
All terms used in this Agreement that are not defined herein and that are defined in the Arrangement Agreement shall have the respective meanings ascribed to them in the Arrangement Agreement.
ARTICLE 2
COVENANTS OF THE SHAREHOLDER
| 2.1 | General |
The Shareholder hereby covenants and agrees in favour of Hecla that, from the date hereof until the termination of this Agreement in accordance with Article 5:
| (a) | at the Alexco Meeting (including in connection with any separate vote of any sub-group of securityholders of Alexco that may be required to be held and of which sub-group the Shareholder forms part) or at any adjournment thereof or in any other circumstances upon which a vote, consent or other approval (including by written consent in lieu of a meeting) of the Alexco Shareholders with respect to the Alexco Resolution is sought, the Shareholder shall cause all of [his/her/its] Subject Shares to be counted as present for purposes of establishing quorum and shall vote (or cause to be voted) all of [his/her/its] Subject Shares (i) in favour of the approval of the Alexco Resolution, and (ii) in favour of any other matter necessary for the consummation of transactions contemplated by the Arrangement Agreement; |
| (b) | at any meeting of securityholders of Alexco (including in connection with any separate vote of any sub-group of securityholders of Alexco that may be required to be held and of which sub-group the Shareholder forms part) or at any adjournment thereof or in any other circumstances upon which a vote, consent or other approval of all or some of Alexco Shareholders is sought (including by written consent in lieu of a meeting), the Shareholder shall cause [his/her/its] applicable Subject Securities to be counted as present for purposes of establishing quorum and shall vote (or cause to be voted) [his/her/its] Subject Securities against any (i) Alexco Acquisition Proposal and/or any matter that could reasonably be expected to delay, prevent or frustrate the successful completion of the Arrangement, or (ii) action or agreement (including, without limitation, any amendment of any agreement) that would result in a breach of any representation, warranty, covenant, agreement or other obligation of the Shareholder in this Agreement; |
| (c) | as promptly as practicable following the mailing of the Alexco Circular and in any event no later than 10 Business Days prior to the date of the Alexco Meeting, the Shareholder shall deliver or cause to be delivered to the Alexco, with a copy (by email) to Hecla concurrently, duly executed proxies or voting instruction forms voting the Subject Securities (i) in favour of the approval of the Alexco Resolution, and (ii) in favour of any other matter necessary or desirable for the consummation of the transactions contemplated by the Arrangement Agreement, and each such proxy or proxies shall not be revoked without the prior written consent of Hecla; |
| (d) | [except in [his/her] capacity as a director or officer to the extent permitted by the Arrangement Agreement,]1 the Shareholder shall not, directly or indirectly: |
| 1 | Note: Include for D&Os. |
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| (i) | solicit, initiate, knowingly encourage or otherwise knowingly facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any confidential information, properties, facilities, books or records of Alexco or any of its subsidiaries) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal; |
| (ii) | enter into, engage in, continue or otherwise participate in any discussions or negotiations with any Person (other than Hecla and its subsidiaries or affiliates) in respect of any inquiry, proposal or offer that constitutes or may reasonably be expected to lead to an Acquisition Proposal; |
| (iii) | accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, any Acquisition Proposal; |
| (iv) | withdraw support, or propose publicly to withdraw support, from the transactions contemplated by the Arrangement Agreement; or |
| (v) | join in the requisition of any meeting of the securityholders of the Alexco for the purpose of considering any resolution related to any Acquisition Proposal and/or any matter that could reasonably be expected to delay, prevent or frustrate the successful completion of the Arrangement or any of the transactions contemplated by the Arrangement Agreement. |
| (e) | the Shareholder shall immediately cease any existing solicitation, encouragement, discussions, negotiations or other activities commenced prior to the date of this Agreement with any Person (other than Hecla and its subsidiaries or affiliates) conducted by the Shareholder with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal; |
| (f) | [the Shareholder shall promptly notify Hecla of any Acquisition Proposal received after the date hereof by the Shareholder or any inquiry, proposal or offer made by a third party to the Shareholder regarding a potential Acquisition Proposal, whether received by the Shareholder directly or through any officer, director, employee, representative or agent of the Shareholder. Such notice shall include the identity of the third party making such Acquisition Proposal, inquiry, proposal or offer and the material terms and conditions thereof. The Shareholder shall keep Hecla fully informed on a current basis of the status of developments and discussions and negotiations with respect to such Acquisition Proposal, inquiry, proposal, offer or request, including any material changes, modifications or other amendments thereto;]2 |
| 2 | Note: Include for ALM Investments ULC. |
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| (g) | the Shareholder shall not directly or indirectly, without the prior written consent of Hecla (such consent not to be unreasonably withheld or delayed): (i) sell, transfer, tender, gift, assign, grant a participation interest in, option, pledge, hypothecate, grant a security or voting interest in or otherwise convey or encumber (each, a “Transfer”), or enter into any agreement, option or other arrangement having the same economic effect as a Transfer of, any of its Subject Securities to any person, other than (A) pursuant to the Plan of Arrangement, (B) to another Shareholder party to this Agreement, (C) the exercise of Subject Securities for Alexco Shares, or (D) to a Person controlled by a Shareholder who, prior to any such Transfer, executes an Agreement in favour of Hecla in the same form as this Agreement; (ii) grant any proxies or power of attorney, deposit any of their Subject Securities into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to their Subject Securities, other than pursuant to this Agreement; or (iii) agree to take any of the actions prohibited by the foregoing clauses (i) and (ii); |
| (h) | the Shareholder shall not exercise any rights of appraisal or rights of dissent provided under any applicable Laws, pursuant to the Interim Order, the Plan of Arrangement or otherwise in connection with the Arrangement or the transactions contemplated by the Arrangement Agreement considered at the Alexco Meeting in connection therewith; and |
| (i) | the Shareholder shall promptly notify Hecla of the amount of any equity or debt securities of Alexco acquired by the Shareholder after the date hereof, other than any Alexco Shares acquired by or on behalf of the Shareholder pursuant to the Alexco Long Term Incentive Plan. Any securities or other interests acquired by the Shareholder after the date hereof shall be subject to the terms of this Agreement as though owned by the Shareholder on the date hereof and shall be included in the definition of “Subject Securities”. |
ARTICLE 3
FIDUCIARY DUTIES
[Notwithstanding any provision of this Agreement to the contrary, Hecla hereby agrees and acknowledges that the Shareholder is entering into this Agreement in his or her capacity as holder of the Subject Securities and not as a director or officer of Alexco. Nothing contained in this Agreement shall limit or restrict any actions the Shareholder may take in [his/her] capacity as a director or officer of Alexco or limit or restrict the exercise of [his/her] fiduciary duties as director or officer of Alexco.]3
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
| 4.1 | Representations and Warranties of the Shareholder |
The Shareholder represents and warrants to Hecla as follows, and acknowledges that Hecla is relying upon such representations and warranties in entering into this Agreement:
| (a) | Capacity. The Shareholder has the power and capacity to execute and deliver this Agreement and to perform [his/her/its] obligations hereunder. |
| 3 | Note: Include for D&Os. |
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| (b) | Authorization. If applicable, the execution, delivery and performance of this Agreement by the Shareholder has been duly authorized by [his/her/its] [board of directors]4 and no other approvals or proceedings on [his/her/its] part are necessary to authorize this Agreement. |
| (c) | Enforceability. This Agreement has been duly executed and delivered by the Shareholder and constitutes its legal, valid and binding obligation, enforceable against the Shareholder in accordance with its terms, subject to bankruptcy, insolvency and other similar Laws affecting creditors’ rights generally, and to general principles of equity. |
| (d) | Ownership of Shares. The Shareholder is the sole beneficial owner of the Subject Securities identified beside [his/her/its] name in Schedule A attached hereto. |
| (e) | Exercise of control or direction. Other than the Subject Securities, the Shareholder does not own of record or beneficially, or exercise control or direction over, or hold any right to acquire, any securities of Alexco. |
| (f) | Legal Proceedings. There are no legal proceedings in progress or pending before any Governmental Entity, or, to the knowledge of the Shareholder, threatened against the Shareholder or any judgment, decree or order against the Shareholder that would adversely affect in any manner [his/her/its] ability to enter into this Agreement and to perform [his/her/its] obligations hereunder. |
| (g) | No Agreements. No Person has any agreement or option, or any right or privilege (whether by law, pre-emptive or contractual) capable of becoming an agreement or option, for the purchase, acquisition or transfer of any of the Subject Securities, or any interest therein or right thereto, except pursuant to the Arrangement Agreement. |
| (h) | Voting. The Shareholder has the sole and exclusive right to enter into this Agreement and to vote (or cause to be voted) the Subject Shares set out next to [his/her/its] name in Schedule A and as contemplated herein. Other than this Agreement, none of the Subject Securities is subject to any proxy, power of attorney, attorney-in-fact, voting trust, vote pooling or other agreement, arrangement or understanding with respect to the right to vote, call meetings of shareholders or give consents or approvals of any kind. |
| 4.2 | Representations and Warranties of Hecla |
Hecla hereby represents and warrants to the Shareholder as follows, and acknowledges that the Shareholder is relying upon such representations and warranties in entering into this Agreement that:
| (a) | Capacity. Hecla has the requisite corporate power and capacity to execute and deliver this Agreement and the Arrangement Agreement and to perform its respective obligations hereunder. |
| 4 | Note: Include for ALM Investments ULC. |
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| (b) | Authorization. The execution, delivery and performance of this Agreement and the Arrangement Agreement by Hecla has been duly authorized by its respective board of directors and no other internal proceedings on its part are necessary to authorize this Agreement and the Arrangement Agreement. |
| (c) | Enforceability. Each of this Agreement and the Arrangement Agreement has been duly executed and delivered by Hecla and constitutes its legal, valid and binding obligations, enforceable against Hecla in accordance with its terms, subject to bankruptcy, insolvency and other similar Laws affecting creditors’ rights generally, and to general principles of equity. |
| (d) | No Breach. Neither the execution and delivery of this Agreement or the Arrangement Agreement by Hecla nor the compliance by it with any of the provisions hereof or thereof will result in a violation or breach of, require any consent to be obtained under or give rise to any termination rights or payment obligation under any provision of: |
| (i) | its respective articles or by-laws (or other constating documents); or |
| (ii) | any resolution of its respective board of directors (or any committee thereof) or of its respective shareholders. |
ARTICLE 5
TERMINATION
| 5.1 | Automatic Termination |
This Agreement shall automatically terminate upon the earlier of (i) the termination of the Arrangement Agreement in accordance with its terms, and (ii) the Effective Time.
| 5.2 | Termination by the Shareholder or Hecla |
This Agreement may be terminated by notice in writing:
| (a) | at any time prior to the Effective Time, by the mutual agreement of the parties; |
| (b) | by Hecla if (i) the Shareholder breaches or is in default of any of the covenants or obligations of such Shareholder under this Agreement, or (ii) any of the representations or warranties of the Shareholder under this Agreement shall have been at the date hereof, or subsequently become, untrue or incorrect in any material respect; provided in each case that Hecla has notified the Shareholder in writing of any of the foregoing events and the same has not been cured by the Shareholder within 10 Business Days of the date of such notice was received by the Shareholder; |
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| (c) | by the Shareholder or Hecla if the Effective Date has not occurred by the Outside Date; or |
| (d) | by the Shareholder if, without the Shareholder’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), the Arrangement Agreement is amended in any manner that would result in a decrease in the amount of Consideration set out in the Arrangement Agreement (provided that a decrease in the market price of the Hecla Shares will not constitute a decrease in the amount of Consideration payable for the Subject Securities). |
| 5.3 | Effect of Termination |
If this Agreement is terminated in accordance with this Article 5, the provisions of this Agreement will become void and no party shall have liability to any other party, except in respect of a breach of this Agreement that occurred prior to such termination. The Shareholder shall be entitled to withdraw any form of proxy in respect of the Alexco Resolution in the event this Agreement is duly terminated in accordance with this Article 5.
ARTICLE 6
GENERAL
| 6.1 | Notices |
All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed to have been duly given and received on the day it is delivered, provided that it is delivered on a Business Day prior to 5:00 p.m. local time in the place of delivery or receipt. However, if notice is delivered after 5:00 p.m. local time or if such day is not a Business Day then the notice shall be deemed to have been given and received on the next Business Day. Notice shall be sufficiently given if delivered (either in person or by courier), or if transmitted by email (with confirmation of transmission) to the parties at the following addresses (or at such other addresses as shall be specified by any party by notice to the other given in accordance with these provisions):
| (i) | if to Hecla: |
Hecla Mining Company
0000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Coeur d’Xxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
E-mail: xxxxxx@xxxxx-xxxxxx.xxx
with a copy (which shall not constitute notice) to:
Osler, Xxxxxx & Harcourt LLP
0000 Xxxx Xxxxxxxx Xx., Xxxxx 0000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Xxxx Xxxxxxxxx
E-mail: xxxxxxxxxx@xxxxx.xxx
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| (ii) | if to the Shareholder: |
| [Insert | Name of Shareholder] |
| x/x | Xxxxxx Xxxxxxxx Xxxx. |
| Xxxxx | 0000, Two Bentall Centre, Box 216 |
| 555 | Burrard Street |
| Vancouver, | British Columbia V7X 1M9 |
| Attention: Xxxx | Xxxxx |
| E-mail: | xxxxxx@xxxxxxxxxxxxxxx.xxx |
| with | a copy (which shall not constitute notice) to: |
| Blake, | Xxxxxxx & Xxxxxxx LLP |
| Suite | 2600, 000 Xxxxxxx Xxxxxx |
| Xxxxxxxxx, | X.X. X0X 0X0 |
| Attention: Xxxxxx | XxXxxx |
| E-mail: | xxxxxx.xxxxxx@xxxxxx.xxx |
| 6.2 | Governing Law |
| (a) | This Agreement shall be governed, including as to validity, interpretation and effect, by the Laws of the Province of British Columbia and the Laws of Canada applicable therein. |
| (b) | Each of the parties hereby irrevocably attorns to the exclusive jurisdiction of the courts of the Province of British Columbia in respect of all matters arising under and in relation to this Agreement and waives any defences to the maintenance of an action in such court. |
| 6.3 | Time of Essence |
Time shall be of the essence in this Agreement.
| 6.4 | Interpretation Not Affected by Headings |
The division of this Agreement into Articles, Sections, subsections and paragraphs and the insertion of headings are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. Unless the contrary intention appears, references in this Agreement to an Article, Section, subsection, paragraph or Schedule by number or letter or both refer to the Article, Section, subsection, paragraph or Schedule, respectively, bearing that designation in this Agreement.
| 6.5 | Entire Agreement |
This Agreement and the provisions of the Arrangement Agreement incorporated herein by reference constitute the entire agreement and understanding between and among the parties hereto with respect to the subject matter hereof and supersede any prior agreement, representation or understanding with respect thereto.
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| 6.6 | Assignment |
The provisions of this Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective successors, permitted assigns, legal personal representatives, heirs, administrators and executors, provided that no party may assign, delegate or otherwise transfer any of its rights, interests or obligations under this Agreement without the prior written consent of the other parties hereto, except that Hecla may assign, delegate or otherwise transfer any of their respective rights, interests or obligations under this Agreement to an affiliate, without reducing their own respective obligations hereunder.
| 6.7 | Severability |
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or Law or public policy, that provision will be severed from this Agreement and all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.
| 6.8 | Further Assurances |
The Shareholder and Hecla will, from time to time, execute and deliver all such further documents and instruments and do all such acts and things as the other parties may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.
| 6.9 | Disclosure |
Except as required by applicable Laws or regulations or by any Governmental Entity or in accordance with the requirements of any stock exchange, no party shall make any public announcement or statement with respect to this Agreement without the approval of the other, which shall not be unreasonably withheld or delayed. Moreover, the parties agree to consult with each other prior to issuing each public announcement or statement with respect to this Agreement, subject to the overriding obligations of applicable Laws. The Shareholder consents to the details of this Agreement being described in any information circular or press release prepared by Alexco or Hecla in connection with the Arrangement and in any material change report prepared by Alexco in connection with the execution and delivery of this Agreement and the Arrangement Agreement, and this Agreement being made publicly available, including by filing on the System for Electronic Document Analysis Retrieval (SEDAR) and the Electronic Data Gathering, Analysis and Retrieval System (XXXXX) websites.
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| 6.10 | Amendments and Waivers |
Each party hereto agrees and confirms that any provision of this Agreement may be amended modified, altered, supplemented or waived if, and only if, such amendment, modification, alteration, supplement or waiver is in writing and signed, in the case of an amendment, by all of the parties hereto, or in the case of a waiver, by the party against whom the waiver is to be effective, and no failure or delay by any party in exercising any right, power or privilege hereunder will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. No waiver of any of the provisions of this Agreement will be deemed to constitute a waiver of any other provision (whether or not similar).
| 6.11 | Specific Performance and other Equitable Rights |
| (a) | The parties hereby agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such damages. Accordingly, the parties acknowledge and hereby agree that in the event of any breach or threatened breach by any of the Shareholder, on the one hand, or Hecla, on the other hand, of any of their respective covenants or obligations set forth in this Agreement, Hecla, on the one hand, or the Shareholder, on the other hand, shall be entitled to an injunction or injunctions to prevent or restrain breaches or threatened breaches of this Agreement by the other, and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the other under this Agreement, without any requirement to prove actual damages and without any requirement for the securing or posting of any bond in connection with the obtaining of any such injunction. Each of the parties hereby agrees not to raise any objections to the availability of the equitable remedy of specific performance to prevent or restrain breaches or threatened breaches of this Agreement by it, and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the other parties under this Agreement. |
| (b) | The parties hereto further agree that (i) by seeking the remedies provided for in this Section 6.11, a party shall not in any respect waive its right to seek any other form of relief that may be available to a party under this Agreement in the event that this Agreement has been terminated or in the event that the remedies provided for in this Section 6.11 are not available or otherwise are not granted, and (ii) nothing set forth in this Section 6.11 shall require any party hereto to institute any proceeding for (or limit any party’s right to institute any proceeding for) specific performance under this Section 6.11 prior or as a condition to exercising any termination right under Section 5.1 or Section 5.2 (and pursuing damages after such termination), nor shall the commencement of any legal proceeding restrict or limit any party’s right to terminate this Agreement in accordance with the terms of Section 5.1 or Section 5.2 or pursue any other remedies under this Agreement that may be available then or thereafter. |
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| 6.12 | Expenses |
Each of the parties shall pay its respective legal, financial advisory and accounting costs and expenses incurred in connection with the preparation, execution and delivery of this Agreement and all documents and instruments executed or prepared pursuant hereto and any other costs and expenses whatsoever and howsoever incurred.
| 6.13 | Independent Legal Advice |
Each of the parties hereby acknowledges that it has been afforded the opportunity to obtain independent legal advice and confirms by the execution and delivery of this Agreement that they have either done so or waived their right to do so in connection with the entering into of this Agreement.
| 6.14 | Counterparts, Execution |
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. The parties shall be entitled to rely upon delivery of an executed facsimile or similar executed electronic copy of this Agreement, and such facsimile or similar executed electronic copy shall be legally effective to create a valid and binding agreement between the parties.
[Signature page follows.]
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IN WITNESS WHEREOF the parties have executed this Agreement as of the date first written above.
| [NAME] | ||
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| HECLA MINING COMPANY | ||
| By: | ||
| Name: | ||
| Title: | ||
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SCHEDULE A
| Shareholder | Number of Subject Securities | |||||
| NAME | Alexco Shares | |||||
| Alexco Options | ||||||
| Alexco DSUs | ||||||
| Alexco RSUs | ||||||
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