VOTING AND SUPPORT AGREEMENT
Exhibit 99.4
THIS AGREEMENT is made as of the 26th day of April 2021.
BETWEEN:
| (the “Shareholder”) |
| -and - |
| Fortuna SILVER MINES INC., a corporation incorporated under the laws of the Province of British Columbia |
| (the “Acquiror”) |
WHEREAS the Shareholder is the registered and/or beneficial owner of that number of issued and outstanding common shares (the “Common Shares”) in the capital of Roxgold Inc. (the “Company”), set forth on Schedule “A” attached to this Agreement;
AND WHEREAS the Shareholder is the holder of that number of options to purchase Common Shares (the “Options”) set forth on Schedule “A” attached to this Agreement;
AND WHEREAS the Company and the Acquiror have entered into an arrangement agreement concurrently with the entering into of this Agreement (the “Arrangement Agreement”) and propose, subject to the terms and conditions of the Arrangement Agreement, to consummate an arrangement as set forth in the plan of arrangement attached to the Arrangement Agreement (the “Arrangement”);
AND WHEREAS at the Meeting (as defined herein) securityholders of the Company will be asked to consider, and if deemed advisable, to pass the Arrangement Resolution approving the Arrangement;
AND WHEREAS the Shareholder acknowledges that the Acquiror would not enter into the Arrangement Agreement but for the execution and delivery of this Agreement by the Shareholder.
NOW THEREFORE this Agreement witnesses that, in consideration of the premises and the covenants and agreements herein contained, the parties hereto agree as follows:
Article 1
INTERPRETATION
Section 1.1 Definitions
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. For the purposes of this Agreement:
"Meeting" means the Company Meeting, as defined in the Arrangement Agreement.
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“Subject Shares” means that number of Common Shares set forth on Schedule “A” to this Agreement, being all of the Common Shares owned legally and/or beneficially, either directly or indirectly, by the Shareholder or over which the Shareholder exercises control or direction, either directly or indirectly, as of the date hereof and shall further include any Common Shares issued upon the vesting or exercise by the Shareholder of Options or other convertible securities and any Common Shares otherwise acquired by the Shareholder after the date hereof.
“Subject Options” means that number of Options set forth on Schedule “A” attached to this Agreement, being all of the Options owned legally and/or beneficially by the Shareholder, as of the date hereof and shall further include any Options otherwise acquired by the Shareholder after the date hereof.
“Subject Securities” means, collectively, the Subject Shares, the Subject Options and any other securities that are convertible, redeemable or exercisable for Subject Shares or Subject Options.
Article 2
COVENANTS
Section 2.1 General Covenants of the Shareholder
The Shareholder hereby covenants and agrees in favour of the Acquiror that, from the date hereof until the termination of this Agreement in accordance with Article 4, except as permitted by this Agreement:
| (a) | at any meeting of shareholders of the Company called to vote upon the Arrangement or the transactions contemplated by the Arrangement Agreement or at any adjournment or postponement thereof or in any other circumstances upon which a vote, consent or other approval (including by written consent in lieu of a meeting) with respect to the Arrangement or the transactions contemplated by the Arrangement Agreement is sought, the Shareholder shall cause its Subject Securities (which have a right to be voted at such meeting) to be counted as present for purposes of establishing quorum and shall vote (or cause to be voted) its Subject Securities (which have a right to be voted at such meeting) in favour of the approval of the Arrangement Resolution, any other transactions contemplated in the Arrangement Agreement and any other matter necessary for the consummation of the Arrangement. If the Shareholder is the beneficial owner, but not the registered holder, of any of its Subject Securities, the Shareholder agrees to take all actions necessary to cause the registered holder and any nominees to vote all of its Subject Securities in accordance with this Section 2.1(a); |
| (b) | at any meeting of shareholders of the Company or at any adjournment or postponement thereof or in any other circumstances upon which a vote, consent or other approval of all or some of the holders of Common Shares or Options is sought (including by written consent in lieu of a meeting), the Shareholder shall cause its Subject Securities (which have a right to be voted at such meeting) to be counted as present for purposes of establishing quorum and shall vote (or cause to be voted) such Subject Securities against (i) any Acquisition Proposal for the Company, (ii) any action, agreement, transaction or proposal that would result in a material breach of any representation, warranty, covenant, agreement or other obligation of the Company in the Arrangement Agreement or of the Shareholder under this Agreement, and (iii) any matter that could reasonably be expected to delay, prevent, impede or frustrate the successful completion of the Arrangement or any of the transactions contemplated by the Arrangement Agreement. If the Shareholder is the beneficial owner, but not the registered holder, of any of its Subject Securities, the Shareholder agrees to take all actions necessary to cause the registered holder and any nominees to vote all of its Subject Securities in accordance with this Section 2.1(b); |
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| (c) | the Shareholder agrees not to, directly or indirectly: |
| (i) | solicit, promote, facilitate or knowingly encourage, including by way of furnishing information, permitting any visit to the Company’s facilities or properties or entering into any form of agreement, arrangement or understanding, any inquiries or the making of any proposals regarding an Acquisition Proposal for the Company (from any person other than the Acquiror or any of its affiliates) or that may reasonably be expected to lead to an Acquisition Proposal for the Company; |
| (ii) | participate in any discussions or negotiations with any person (other than the Acquiror or any of its affiliates) regarding, or otherwise co-operate with, respond to, assist or participate in any Acquisition Proposal for the Company or potential Acquisition Proposal for the Company; or |
| (iii) | make any public statements which may reasonably be construed as inconsistent with the recommendation of the Company’s Board of Directors to approve the Arrangement or the transactions contemplated by the Arrangement Agreement; |
| (d) | the Shareholder agrees not to directly or indirectly: (i) sell, transfer, assign, tender, exchange, grant a participation interest in, gift, option, pledge, hypothecate, grant a security interest in, place in trust or otherwise convey, dispose or encumber (each, a “Transfer”), or enter into any agreement, understanding, option or other arrangement with respect to the Transfer of, any of its Subject Securities to any person, other than pursuant to the Arrangement Agreement, (ii) grant any proxies or power of attorney, deposit any of its Subject Securities into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to its Subject Securities, other than pursuant to this Agreement, (iii) otherwise enter into any agreement or arrangement with any person or entity to limit, restrict or adversely affect the Shareholder’s legal power, authority, or right to vote any of its Subject Securities or otherwise prevent the Shareholder from performing any of his or her obligations under this Agreement, or (iv) requisition or join in the requisition of any meeting of any of the shareholders of the Company for the purpose of considering any resolution; provided, however, that the foregoing restrictions shall not prevent or restrict the Shareholder from: (A) acquiring Common Shares upon the exercise of convertible securities or other rights to acquire Common Shares or other Subject Securities; or (B) exercising, converting, redeeming or agreeing to cancel its Subject Securities in accordance with their terms or the Arrangement Agreement; |
| (e) | the Shareholder shall not take any other action of any kind, directly or indirectly, which would reasonably be regarded as likely to materially reduce the success of, or delay or interfere with the completion of the transactions contemplated by the Arrangement Agreement; |
| (f) | the Shareholder shall promptly notify the Acquiror upon any of the Shareholder’s representations or warranties contained in this Agreement becoming untrue or incorrect in any material respect, and for the purposes of this provision, each representation and warranty shall be deemed to be given at and as of all times during such period (irrespective of any language which suggests that it is only being given as at the date hereof); |
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| (g) | the Shareholder shall not exercise any rights of appraisal or rights of dissent provided under any Law or otherwise in connection with the Arrangement or the transactions contemplated by the Arrangement Agreement that the Shareholder may have; and |
| (h) | no later than ten (10) Business Days prior to the date of the Meeting: (i) with respect to any Subject Securities that are in registered form, the Shareholder shall deliver or cause to be delivered, in accordance with the instructions set out in the Company Circular and with a copy to the Acquiror concurrently with such delivery, a duly executed proxy or proxies directing the holder of such proxy or proxies to vote its Subject Securities (which have a right to be voted at such meeting), in favour of the Arrangement and the transactions contemplated by the Arrangement Agreement; and (ii) with respect to any Subject Securities that are held beneficially, the Shareholder shall deliver or cause to be delivered, in accordance with the instructions set out in the Company Circular and with a copy to the Acquiror concurrently with such delivery, a duly executed voting instruction form to the intermediary through which the Shareholder holds its beneficial interest in the Shareholder’s Subject Securities, instructing that the Shareholder’s Subject Securities (which have a right to be voted at such meeting) be voted at the Meeting in favour of the Arrangement. Such proxy or proxies or voting instructions shall name those individuals as may be designated by the Company in the Company Circular and such proxy or proxies or voting instructions shall not be revoked without the written consent of the Acquiror or upon termination of this Agreement. The Shareholder hereby agrees that neither it nor any person on its behalf will take any action to withdraw, amend or invalidate any proxy or voting instructions deposited by the Shareholder pursuant to this Agreement notwithstanding any statutory or other rights or otherwise which the Shareholder might have unless this Agreement is terminated in accordance with its terms. |
Section 2.2 Shareholder Acknowledgement
The Shareholder hereby acknowledges and agrees that any Subject Shares acquired pursuant to the exercise of Subject Options or the exercise or vesting of convertible securities or acquired in the market, by private agreement or otherwise, from the date hereof to the Effective Date shall be deemed to be subject to the terms hereof as Subject Shares.
Article 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Shareholder
The Shareholder hereby represents and warrants to and covenants with the Acquiror as follows, and acknowledges that the Acquiror is relying upon such representations, warranties and covenants in entering into this Agreement and the Arrangement Agreement:
| (a) | Incorporation; Capacity; Authorization. Where the Shareholder is a corporation or other entity, it is a corporation or other entity duly incorporated, amalgamated or organized, as applicable, and validly existing under the laws of the jurisdiction of its incorporation, organization or formation as applicable, and has all requisite power, capacity and authority and has received all requisite approvals to execute and deliver this Agreement and to perform its obligations hereunder. Where the Shareholder is an individual, he or she has the power and capacity to execute and deliver this Agreement and to perform his or her obligations hereunder. |
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| (b) | Enforceable. This Agreement has been duly executed and delivered by the Shareholder, and constitutes a legal, valid and binding agreement of the Shareholder enforceable against it in accordance with its terms subject only to any limitation under bankruptcy, insolvency or other Laws affecting the enforcement of creditors’ rights generally and the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction. |
| (c) | Ownership of Subject Securities. The Shareholder is the sole registered and/or beneficial owner of the Subject Securities. As of the date hereof, the Shareholder does not directly or indirectly control or direct, or own or have any registered or beneficial interest in, any other Common Shares, Options or convertible securities of the Company other than as set out in Schedule “A”. The Shareholder, or any person named in Schedule “A” on behalf of which the Shareholder is entering into this Agreement, is and will be immediately prior to the Effective Time, the registered and/or beneficial owner of the Subject Securities, with good and marketable title thereto, free and clear of any and all liens. |
| (d) | No Breach. The execution and delivery of this Agreement by the Shareholder, the consummation by the Shareholder of the transactions contemplated hereby, and the compliance by the Shareholder with any of the provisions hereof, will not constitute a violation of or default under, or conflict with, any contract, commitment, agreement, understanding or arrangement to which it is a party or by which it is bound. |
| (e) | No Proceedings. There are no claims, actions, suits, arbitrations, inquiries, investigations or proceedings pending, or, to the knowledge of the Shareholder, threatened against the Shareholder that, individually or in the aggregate, would reasonably be expected to have an adverse effect on the Shareholder’s ability to perform its obligations hereunder. The Shareholder is not subject to any outstanding judgment, order, writ, injunction or decree that, individually or in the aggregate, would reasonably be expected to have an adverse effect on the Shareholder’s ability to perform its obligations hereunder. |
| (f) | 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 this Agreement or the Arrangement Agreement. |
| (g) | Voting. The Shareholder has the sole and exclusive right to enter into this Agreement and to vote (or cause to be voted) the Subject Securities (which have a right to vote at such meeting) as contemplated herein. Other than pursuant to 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 with respect to the right to vote, call meetings of shareholders or give consents or approvals of any kind. |
| (h) | Consents. Subject to compliance with any approval or Laws contemplated by the Arrangement Agreement, no consent, approval, order or authorization of, or declaration or filing with, any Governmental Entity is required to be obtained by the Shareholder in connection with the execution, delivery or performance of this Agreement. |
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Section 3.2 Representations and Warranties of the Acquiror
The Acquiror hereby represents and warrants to the Shareholder, acknowledging that the Shareholder is relying upon such representations and warranties in entering into this Agreement:
| (a) | Incorporation; Capacity; Authorization. The Acquiror is a corporation duly incorporated and validly existing under the laws of the jurisdiction of its incorporation and has all requisite power, capacity and authority and has received all requisite approvals to execute and deliver this Agreement and to perform their obligations hereunder. |
| (b) | Enforceable. This Agreement has been duly executed and delivered by the Acquiror and constitutes a legal, valid and binding agreement of the Acquiror enforceable against it in accordance with its terms subject only to any limitation under bankruptcy, insolvency or other Laws affecting the enforcement of creditors’ rights generally and the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction. |
| (c) | No Breach. The execution and delivery of this Agreement by the Acquiror, the consummation by the Acquiror of the transactions contemplated hereby, and the compliance by the Acquiror with any of the provisions hereof, will not constitute a violation of or default under, or conflict with, any contract, commitment, agreement, understanding or arrangement to which it is a party or by which it is bound, other than as would not be reasonably expected to have a materially adverse effect on the Acquiror’s abilities to perform their obligations hereunder. |
Article 4
TERMINATION
Section 4.1 Termination
This Agreement may be terminated:
| (a) | at any time upon the written agreement of the Acquiror and the Shareholder; |
| (b) | by the Shareholder: (i) if any of the representations and warranties of the Acquiror in this Agreement shall not be true and correct in all material respects; or (ii) if the Acquiror, without the prior written consent of the Shareholder, varies the terms of the Arrangement Agreement in a manner that (A) decreases the amount, or changes the form, of Consideration set out in the Arrangement Agreement; or (B) is materially adverse to the Shareholder; or |
| (c) | by the Acquiror if: (i) any of the representations and warranties of the Shareholder in this Agreement shall not be true and correct in all material respects; or (ii) the Shareholder shall not have complied with its covenants to the Acquiror contained in this Agreement, provided that the Acquiror has notified the Shareholder in writing of any of the foregoing events and the same has not been cured within 10 Business Days of the date such notice was received by the Shareholder. |
Section 4.2 Automatic Termination
This Agreement shall automatically terminate on the earliest to occur of any of the following:
| (a) | the Effective Time; or |
| (b) | the date and time that the Arrangement Agreement is terminated in accordance with its terms. |
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Section 4.3 Effect of Termination
If this Agreement is terminated in accordance with this Article 4, the provisions of this Agreement will become void and no party shall have liability to any other party (or any shareholder, director, officer, employee, agent, consultant or representative of such party) and, without limiting the foregoing, the Shareholder shall be entitled to withdraw any form of proxy, voting instruction form or power of attorney which it may have given with respect of the Subject Securities; provided that neither the termination of this Agreement nor anything contained in Article 4 will relieve any party from any liability for any breach by it of this Agreement prior to such termination.
Article 5
GENERAL
Section 5.1 Fiduciary Obligations
The Acquiror agrees and acknowledges that, notwithstanding any other provision of this Agreement, the Shareholder is bound hereunder solely in his or her capacity as a security holder of the Company and, if the Shareholder is a director or officer of the Company and/or any of its subsidiaries, this Agreement shall not be deemed or interpreted to bind the Shareholder or any of its directors, officers or principal shareholder in his or her capacity as a director or officer of the Company or any of the subsidiaries of the Company. For the avoidance of doubt, nothing in this Agreement shall limit or restrict any individual from properly fulfilling, including exercising any rights under the Arrangement Agreement on behalf of the Company or taking any actions or omitting to take any actions permitted thereby on behalf of the Company, his or her fiduciary duties as a director or officer of the Company and/or any of its subsidiaries.
Section 5.2 Further Assurances
Each of the Shareholder and the Acquiror will, from time to time, execute and deliver all such further documents and instruments and do all such acts and things as the other party may reasonably require and at the requesting party’s cost to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.
Section 5.3 Disclosure
Each of the Shareholder and the Acquiror hereby consents to the disclosure of the substance of this Agreement in any press release or in any information circular relating to the Meeting or the Acquiror Meeting and the filing of a copy thereof by the Company and/or the Acquiror at xxx.xxxxx.xxx.
Except as set forth above or as required by applicable laws or regulations or by any Governmental Entity or in accordance with the requirements of any stock exchange, the Shareholder shall make no public announcement or statement with respect to this Agreement without the prior written approval of the Acquiror, which shall not be unreasonably withheld or delayed. The Shareholder agrees to consult with the Acquiror prior to issuing any public announcement or statement with respect to this Agreement, subject to the overriding obligations of Laws.
Section 5.4 Time of the Essence
Time is of the essence in this Agreement.
Section 5.5 Governing Law
This Agreement shall be governed by, and be construed in accordance with, the laws of the Province of British Columbia and the laws of Canada applicable therein but the reference to such laws shall not, by conflict of laws rules or otherwise, require the application of the law of any jurisdiction other than the Province of British Columbia.
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Section 5.6 Entire Agreement
This Agreement, including the schedules hereto and the provisions of the Arrangement Agreement incorporated herein by reference, or that are for the benefit of a party pursuant to the Arrangement Agreement, constitutes the entire agreement between the parties with respect to the transactions contemplated by this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties.
Section 5.7 Independent Legal Advice
The Shareholder acknowledges that it has been afforded the opportunity to obtain independent legal advice and confirms by the execution and delivery of this Agreement that the Shareholder has either done so or waived their right to do so in connection with the entering into of this Agreement.
Section 5.8 Amendments
This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by each of the parties hereto.
Section 5.9 Severability
If any provision of this Agreement is determined to be illegal, invalid or unenforceable by any court of competent jurisdiction, that provision will be severed from this Agreement and the remaining provisions shall remain in full force and effect. 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.
Section 5.10 Assignment
This Agreement becomes effective only when executed by the Shareholder and the Acquiror. After that time, it will be binding upon and enure to the benefit of the Shareholder and the Acquiror and their respective successors and permitted assigns. Neither this Agreement nor any of the rights or obligations under this Agreement are assignable or transferable by any party without the prior written consent of the other party; provided that the Acquiror may assign this Agreement to a wholly-owned subsidiary of the Acquiror without the prior written consent of the Shareholder if the Acquiror has assigned the Arrangement Agreement to such wholly-owned subsidiary and provided that if such assignment takes place, the Acquiror shall continue to be liable jointly and severally with such wholly-owned subsidiary for all of its obligations hereunder.
Section 5.11 Survival
If this Agreement is terminated, this Agreement shall become void and of no further force or effect without liability of any party (or any shareholder, director, officer, employee, agent, consultant or representative of such party) to any other party to this Agreement.
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Section 5.12 Notices
Any notice or other communication given regarding the matters contemplated by this Agreement must be in writing, sent by personal delivery, courier or electronic transmission and addressed:
| (a) | to the Acquiror, addressed as follows: |
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Corporate Counsel
Email: [contact information redacted]
With a copy to:
Blake, Xxxxxxx & Xxxxxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Three Bentall Centre
Vancouver, British Columbia V7Z 1L3
Attention: Xxxxx Xxxxxxx
Email: [contact information redacted]
| (b) | to the Shareholder, as set forth on the signature page to this Agreement with a copy to: |
Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx, 00xx
xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxxx Xxxxxxxx
Email: [contact information redacted]
Any such notice or other communication shall, if delivered, be deemed to have been given and received on the date on which it was delivered to the address provided herein (if a Business Day or, if not, then the next succeeding Business Day) and if sent by facsimile be deemed to have been given and received at the time of receipt (if a Business Day or, if not, then the next succeeding Business Day) unless actually received after 4:00 p.m. (Vancouver time) at the point of delivery in which case it shall be deemed to have been given and received on the next Business Day.
Section 5.13 Specific Performance and other Equitable Rights
The parties agree that irreparable harm would occur, for which monetary damages would not be an adequate remedy at law, in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to interim, interlocutory and permanent injunctive relief, specific performance and other equitable relief to prevent breaches or threatened breaches of this Agreement, and to enforce compliance with the terms of this Agreement without the proof of actual damages and without any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief, this being in addition to any other remedy to which the parties may be entitled at law or in equity.
Section 5.14 Expenses
All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.
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Section 5.15 Counterparts
This Agreement may be executed in any number of counterparts (including counterparts by electronic copy) and all such counterparts taken together shall be deemed to constitute one and the same instrument. The parties shall be entitled to rely upon delivery of an executed electronic copy of this Agreement, and such executed electronic copy shall be legally effective to create a valid and binding agreement between the parties.
[Remainder of page intentionally left blank. Signature page follows.]
IN WITNESS WHEREOF the parties have executed this Agreement as of the date first written above.
| FORTUNA SILVER MINES INC. |
| By: | ||
| Authorized Signing Officer |
| (Print Name of Shareholder) |
| (Signature of Shareholder or Authorized Signatory) |
| (Place of Residency) |
| (Print Name and Title) |
| Address: | ||
| Telephone: | ||
| Email: |
Signature page to Company Voting and Support Agreement
Schedule “A”
| Security | Number |
| Common Shares | |
| Options | |
| Performance Share Units | |
| Restricted Share Units |
