Andean Resources Limited, in the matter of Andean Resources Limited (No 2) [2010] FCA 1397

FEDERAL COURT OF AUSTRALIA

Andean Resources Limited, in the matter of Andean Resources Limited (No 2) [2010] FCA 1397

Citation: Andean Resources Limited, in the matter of Andean Resources Limited (No 2) [2010] FCA 1397

Parties: ANDEAN RESOURCES LIMITED (ACN 064 494 319)

File number(s): NSD 1359 of 2010

Judge: JAGOT J

Date of judgment: 8 December 2010

Catchwords: CORPORATIONS – scheme of arrangement – second court hearing

Legislation: Corporations Act 2001 (Cth) Corporations Regulations 2001 (Cth)

Date of hearing: 8 December 2010

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 18

Counsel for the Plaintiff: Mr T Bathurst QC

Solicitor for the Plaintiff: Corrs Chambers Westgarth Lawyers

Solicitor for Goldcorp Inc: Mr R Forbes of Mallesons Stephen Jaques

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 1359 of 2010

IN THE MATTER OF ANDEAN RESOURCES LIMITED (ACN 064 494 319) BETWEEN: ANDEAN RESOURCES LIMITED (ACN 064 494 319)

Plaintiff

JUDGE: JAGOT J

DATE OF ORDER: 8 DECEMBER 2010

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1 Pursuant to subsection 411(4)(b) of the Corporations Act 2001 (Cth) (Corporations Act), the scheme of arrangement between Andean Resources Limited ACN 064 494 319 (Andean) and the holders of ordinary shares in Andean in the form annexed hereto and marked "A" be approved. 2 Pursuant to subsection 411(12) of the Corporations Act, Andean be exempted from compliance with subsection 411(11) of the Corporations Act in relation to Order 1. 3 These Orders be entered forthwith. THE COURT NOTES THAT: 4 Order 1 above will be relied upon for the purposes of section 3(a)(10) of the United States Securities Act of 1933. Annexure A Scheme of arrangement pursuant to section 411 of the Corporations Act between Andean Resources Limited ABN 66 064 494 319 ("Target") and Each person registered as a holder of fully paid ordinary shares in the Target as at the Record Date 1 Definitions and interpretation 1.1 Definitions In this Scheme: Aggregate Cash Consideration means the aggregate Cash Consideration payable to Scheme Participants in accordance with this Scheme. ASIC means Australian Securities and Investments Commission. ASX means ASX Limited or the Australian Securities Exchange, as appropriate. Business Day means a business day as defined in the Listing Rules. Cash Consideration means C$6.50 for each Scheme Share. Corporations Act means the Corporations Act 2001 (Cwlth). Court means a court of competent jurisdiction under the Corporations Act. Deed Poll means the deed poll dated 6 October 2010 executed by Goldcorp in favour of the Scheme Participants. Effective means the coming into effect, pursuant to section 411(10) of the Corporations Act, of the order of the Court made under section 411(4)(b) in relation to the Scheme but in any event at no time before an office copy of the order of the Court is lodged with ASIC. Effective Date means the date on which the Scheme becomes Effective. Election means in respect of a Scheme Participant, an election (or deemed election) to receive the Scheme Consideration as Cash Consideration, Share Consideration, or a combination of both in accordance with clause 4.2. Election Form means an election form for the purposes of the Target Shareholders making an election under clause 4.2. Election Time means the Record Date, or such other time as Goldcorp and Target agree in writing. Eligible Holder means a beneficial owner of Scheme Shares immediately prior to the Effective Date who is: (a) a resident of Canada for purposes of the Tax Act (other than a Tax Exempt person); or (b) a partnership any member of which is a resident of Canada for the purposes of the Tax Act (other than a Tax Exempt person). Encumbrance includes mortgage, lien, charge, pledge, assignment by way of security, security interest and interests of third parties of any kind whether legal or otherwise. End Date means 15 March 2011 or such other date as is agreed by Goldcorp and the Target. Goldcorp meansGoldcorp Inc of Park Place, Suite 3400 - 666 Burrard Street, Vancouver, British Columbia, V6C 2X8 Canada. Goldcorp Constitution means the articles or by-laws or other constituent documents of Goldcorp. Implementation Date means the fifth Business Day following the Record Date or such other date as the Target and Goldcorp agree with consent of ASX if necessary. Ineligible Foreign Shareholder means a Target Shareholder: (a) who is (or is acting on behalf of) a citizen or resident of a jurisdiction other than residents of: (i) Australia and its external territories; (ii) the United States of America; (iii) Canada; or (iv) New Zealand; or (b) whose address shown in the Register is a place outside: (i) Australia and its external territories; (ii) the United States of America; (iii) Canada; or (iv) New Zealand, or who is acting on behalf of such a person, unless Goldcorp determines that: (c) it is lawful and not unduly onerous or unduly impracticable to issue that Target Shareholderwith New Goldcorp Shares pursuant to the Scheme; and (d) it is lawful for that Target Shareholderto participate in the Scheme by the law of the relevant place. Listing Rules means the Listing Rules of ASX. Maximum Cash Consideration means C$1,000,000,000. Merger Implementation Agreement means the merger implementation agreement dated3 September 2010 between the Target and Goldcorp. New Goldcorp Share means a common share in the capital of Goldcorp to be issued under the Scheme. NYSE means the New York Stock Exchange. Nominee means a nominee appointed by Goldcorp in accordance with clause 4.6 of the Merger Implementation Agreement. Option means an option to acquire a Target Share. Record Date means 7.00pm the fifth Business Day following the Effective Date or such other date as the Target and Goldcorp agree with consent of ASX if necessary. Register means the register of shareholders maintained by the Target in accordance with the Corporations Act. Registered Address means, in relation to a Scheme Participant, the address shown in the Register. Regulatory Authority includes: (a) ASX; (b) ASIC; (c) the TSX; (d) the Ontario Securities Commission; (e) a government or governmental, semi-governmental or judicial entity or authority; (f) a minister, department, office, commission, delegate, instrumentality, agency, board, authority or organisation of any government; (g) the Commissioner of Competition under the Competition Act (Canada); (h) the National Commission for the Defence of Competition (CNDC) of Argentina; (i) any regulatory organisation established under statute, including the Argentine Competition Act; and (j) the United States Securities and Exchange Commission. Scheme means this scheme of arrangement together with any amendment or modification made pursuant to section 411(6) of the Corporations Act. Scheme Consideration means, in respect of each Scheme Share, Cash Consideration or Share Consideration. Scheme Meeting means the meeting to be convened by the Court at which the Target Shareholders will vote on the Scheme. Scheme Order meansthe order of the Court under section 411(4)(b) of the Corporations Act approving the Scheme. Scheme Participant means each person who is a Target Shareholder as at the Record Date. Scheme Share means a Target Share held by a Scheme Participant. Second Court Date means the day on which the Court makes an order pursuant to section 411(4)(b) of the Corporations Act approving the Scheme. Second Court Hearing means the hearing of the application made to the Court for an order pursuant to section 411(4)(b) of the Corporations Act approving this Scheme. Share Consideration means 0.14 of a New Goldcorp Share for each Scheme Share. Tax Act means the Income Tax Act (Canada) and the regulations thereunder, as amended from time to time. Tax Exempt person means a person who is exempt from tax under Part I of the Tax Act. Target Share means an ordinary fully paid share in the capital of the Target. Target Shareholder means each person registered in the Register as a holder of the Target Shares. TSX means the Toronto Stock Exchange. 1.2 Reference to certain general terms Unless the contrary intention appears, a reference in this Scheme to: (a) (variations or replacement) a document (including this agreement) includes any variation or replacement of it; (b) (clauses, annexures and schedules) a clause, annexure or schedule is a reference to a clause in or annexure or schedule to this agreement; (c) (reference to statutes) a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; (d) (law) law means common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them); (e) (singular includes plural) the singular includes the plural and vice versa; (f) (person) the word "person" includes an individual, a firm, a body corporate, a partnership, a joint venture, an unincorporated body or association, or any Regulatory Authority; (g) (executors, administrators, successors) a particular person includes a reference to the person's executors, administrators, successors, substitutes (including persons taking by novation) and assigns; (h) (Australian dollars) Australian dollars or A$ is a reference to the lawful currency of Australia; (i) (Canadian dollars) Canadian dollars or C$ is a reference to the lawful currency of Canada; (j) (calculation of time) a period of time dating from a given day or the day of an act or event, is to be calculated exclusive of that day; (k) (reference to a day) a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later; (l) (meaning not limited) the words "include", "including", "for example" or "such as" when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind; and (m) (time of day) time is a reference to Sydney, New South Wales time. 1.3 Headings Headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of this Scheme. 2 Preliminary 2.1 Target (a) The Targetis a publiccompany incorporated in Australia and registered in Western Australia and is a company limited by shares. (b) The Target is admitted to the official list of the ASX and the TSX and the Target Shares are officially quoted on the respective stock markets conducted by ASX and TSX. (c) As at 1 November 2010 the Target's only issued securities are: (i) 548,450,367 Target Shares; and (ii) 3,223,440 Options, which are not quoted on any stock exchange. As at 1 November 2010, other than as set out below, the Target is under no obligation to issue further Target Shares before the Implementation Date: (d) 2,550,000 Target Shares to be issued to three Target employees and consultants if the Options are exercised; and (e) approximately 422,221 Target Shares which are intended to be issued in relation to vested but unissued Target Shares which have been granted to 17 Target employees and consultants. 2.2 Goldcorp Goldcorp is a public company incorporated in the Province of Ontario, Canada and is a corporation. Its shares are officially quoted on the TSX and the New York Stock Exchange. 2.3 Merger Implementation Agreement The Target and Goldcorp have entered into the Merger Implementation Agreement under which, among other things: (a) the Target agreed to propose the Scheme to Target Shareholders; and (b) the Target and Goldcorp agreed to implement the Scheme on the terms of the Merger Implementation Agreement. 2.4 Deed Poll Goldcorp has executed the Deed Poll by which it has covenanted to the Scheme Participants to undertake the acts attributed to it in this Scheme, including to provide the Scheme Consideration. 3 Conditions to this Scheme 3.1 Conditions precedent The conditions precedent to this Scheme are: (a) neither the Merger Implementation Agreement or Deed Poll is terminated before the Court makes the Scheme Order; (b) all the conditions precedent in schedule 3 of the Merger Implementation Agreement having been satisfied or waived (other than the condition precedent in item 1(b) which cannot be waived) in accordance with the terms of the Merger Implementation Agreement by the time set out in the Merger Implementation Agreement; and (c) the Scheme Order is lodged with ASIC. 3.2 Conditions precedent and operation of clause 4 The satisfaction or waiver in accordance with the Merger Implementation Agreement of each condition in clause 3.1 (other than the condition in clause 3.1(c)) at the same time as, or before, the Court making the Scheme Order is a condition precedent to this Scheme taking effect. 3.3 Certificate The Target and Goldcorp must provide to the Court on the Second Court Date a certificate, or such other evidence as the Court requests, confirming (in respect of matters within their knowledge) whether or not the conditions precedent to this Scheme in clause 3.1 (other than the condition precedent in item 4 of schedule 3 to the Merger Implementation Agreement and clause 3.1(c)) are satisfied or waived. In the absence of manifest error, the certificate provides conclusive evidence that those conditions precedent have been satisfied. 3.4 Effective Date Subject to clause 3.5, this Scheme takes effect for all purposes on the Effective Date. 3.5 End Date The Scheme will lapse and be of no further force or effect if the Effective Date does not occur on or before the End Date. 4 Implementation of the Scheme 4.1 Transfer and registration of the Scheme Shares On the Implementation Date, subject to the provision of the Scheme Consideration in accordance with clause 4.3, the Scheme Shares, together with all rights and entitlements attaching to the Scheme Shares as at the Implementation Date, must be transferred to Goldcorp without the need for any further act by any Scheme Participant (other than acts performed by the Target as attorney and agent for Scheme Participants under clause 6.3) by: (a) the Target delivering to Goldcorp duly completed and executed share transfer forms (or a master share transfer form) to transfer all of the Scheme Shares to Goldcorp; (b) Goldcorp duly executing the share transfer forms (or a master share transfer form) to transfer all of the Scheme Shares to Goldcorp and delivering it to the Target for registration; and (c) immediately after receipt of the duly executed share transfer forms (or a master share transfer form) in respect of the Scheme Shares, the Target entering the name of Goldcorp in the Register in respect of all Scheme Shares. 4.2 Election (a) Subject to adjustments under clause 4.6, each Target Shareholder is entitled to elect the proportion of the Scheme Shares holding in respect of which that Target Shareholder wishes to receive Cash Consideration or Share Consideration by completing the Election Form and returning it to the address specified in the Election Form so that it is received by the Election Time. (b) An election under clause 4.2(a) must be made in accordance with the terms and conditions on the Election Form. (c) If a valid election is not made by a Target Shareholder prior to the Election Time, then that Target Shareholder will be deemed to have elected to receive the Share Consideration in respect of all of its Target Shares. (d) An election which is not made or deemed to have been made in accordance with this clause 4.2 will not be a valid election for the purpose of this Scheme and will not be recognised by the Target and Goldcorp for any purpose. (e) The Target may, with the agreement of Goldcorp, settle as it thinks fit any difficulty, matter of interpretation or dispute which may arise in connection with determining the validity of any election, and any such decision will be conclusive and binding on the Target, Goldcorp and the relevant Target Shareholder. 4.3 Consideration under this Scheme On the Implementation Date, in consideration for the transfer of the Scheme Shares to Goldcorp, subject to clauses 4.7, 4.8 and 4.11, Goldcorp must provide Cash Consideration or Share Consideration (at the election of the Scheme Participant in accordance with clause 4.2 and subject to adjustments under clause 4.6) to each Scheme Participant in respect of their Scheme Shares. 4.4 Satisfaction of obligation to pay Cash Consideration The obligation of Goldcorp to provide Cash Consideration pursuant to clause 4.3 will be satisfied by: (a) before 11.00am on the Implementation Date, Goldcorp depositing an amount equal to the Aggregate Cash Consideration, in cleared funds in one or more trust accounts opened and operated by the Target (or on its behalf) for that purpose, to be held on trust for the Scheme Participants, except that any interest on the amount deposited (less bank fees) shall be to Goldcorp's account; and (b) on the Implementation Date, (subject to Goldcorp having complied with clause 4.4(a)) the Target sending to each Scheme Participant by pre-paid airmail post at their Registered Address a cheque drawn on a bank considered appropriate by the Target for Cash Consideration payable to that Scheme Participant in accordance with this Scheme. The cheques sent by the Target under this clause may be drawn, at the discretion of the Target, in Canadian dollars, in Australian dollars or in the local currency of the country in which the relevant Scheme Participant's Registered Address appeared on the Register. The Target is authorised to effect any conversion of the Cash Consideration in such manner as it deems appropriate (acting reasonably) and to deduct any costs, charges or expenses associated with such conversion from the amount paid to the relevant Scheme Participant. The Target and Goldcorp must deduct and withhold from consideration, dividend or other distributions otherwise payable to any holder of Scheme Shares or Goldcorp Shares or any other amount payable to any person as a consequence of this Scheme, such amounts as Goldcorp or the Target determines, acting reasonably, are required be deducted and withheld with respect to such payment under any applicable law. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes under this agreement as having been paid to the person in respect of which such deduction and withholding was made, provided that such withheld amounts are actually remitted to the appropriate taxing agency. 4.5 Satisfaction of obligation to provide Share Consideration Subject to clause 4.7, the obligation of Goldcorp to provide the Share Consideration pursuant to clause 4.3 will be satisfied by Goldcorp: (a) on the Implementation Date, entering the name of each Scheme Participant who is entitled to receive Share Consideration under this Scheme on the register of members of Goldcorp in respect of those New Goldcorp Shares comprised in the Scheme Consideration to be provided to Scheme Participants in accordance with this Scheme; and (b) as soon as practicable after the Implementation Date, sending to each Scheme Participant who has been registered as a holder of the New Goldcorp Shares in accordance with this Scheme by pre-paid airmail post to each to their Registered Address a share certificate or holding statement (or equivalent document) for those New Goldcorp Shares. 4.6 Adjustment of Scheme Consideration (a) Nothing in this Scheme requires Goldcorp to pay to the Scheme Participants, in aggregate, more than the Maximum Cash Consideration. (b) If the aggregate number of the Scheme Shares in respect of which all of the Scheme Participants validly elected to receive Cash Consideration when multiplied by the Cash Consideration exceeds the Maximum Cash Consideration, each Scheme Participant: (i) will only be entitled to receive Cash Consideration in respect of that number of Scheme Shares ("SS") as calculated in accordance with the following formula (rounded down to the nearest whole number): where: "A" means the number of the Scheme Shares in respect of which a Scheme Participant validly elected to receive Cash Consideration; and "B" means the aggregate number of the Scheme Shares in respect of which all of the Scheme Participants validly elected to receive Cash Consideration multiplied by the Cash Consideration; and (ii) will be entitled to receive Share Consideration for the balance of their Scheme Shares. 4.7 Ineligible Foreign Shareholders (a) Goldcorp is under no obligation to issue and allot New Goldcorp Shares comprising the Scheme Consideration to any Ineligible Foreign Shareholder. (b) In the case of each Ineligible Foreign Shareholder, Goldcorp must issue and allot the New Goldcorp Shares to which the Scheme Participant would have been entitled (were they not an Ineligible Foreign Shareholder) to the Nominee, and procure that the Nominee: (i) as soon as practicable (and in any event within 20 Business Days after the Implementation Date) in the ordinary course of trading on the TSX, sells those New Goldcorp Shares; and (ii) pay, subject to clause 4.10, to each of the Ineligible Foreign Shareholders an amount equal to the average net proceeds of sale rounded down to the nearest cent (after deduction of any applicable brokerage, taxes and charges) of all New Goldcorp Shares sold under this clause multiplied by the number of New Goldcorp Shares to which that Ineligible Foreign Shareholder would have been entitled but for clause 4.7(a). (c) Payment under clause 4.7(b) is to be made by the Nominee by sending to each Ineligible Foreign Shareholders by pre-paid airmail post at their Registered Address a cheque drawn on a bank considered appropriate by the Nominee, at the discretion of the Target, in Canadian dollars, in Australian dollars or in the local currency of the country in which the relevant Ineligible Foreign Shareholder's Registered Address appeared on the Register. The Nominee is authorised to effect any conversion of the proceeds of sale in such manner as it deems appropriate (acting reasonably) and to deduct any costs, charges or expenses associated with such conversion from the amount paid to the relevant Ineligible Foreign Shareholders. (d) Payments to Ineligible Foreign Shareholders under this clause 4.7 will be in full satisfaction of the Ineligible Foreign Shareholder's right to receive New Goldcorp Shares under clause 4.3. 4.8 Fractional entitlements (a) If the number of the Scheme Shares held by a Scheme Participant is such that the aggregate entitlement of that Scheme Participant to New Goldcorp Shares is not a whole number, then the entitlement in each case must be rounded up or down to the nearest whole number, with fractions of 0.5 being rounded up. (b) If the Target considers that a Target shareholding may have been split up to result in an increased number of fractional entitlements and therefore an increased number of New Goldcorp Shares or an aggregate amount of Cash Consideration, the Target must provide the relevant details of the relevant shareholdings to Goldcorp and Goldcorp may aggregate the relevant shareholdings for the purpose of determining the entitlement and pay the additional Cash Consideration or issue the additional New Goldcorp Share to whichever Scheme Participant it considers appropriate. 4.9 New Goldcorp Shares to rank equally New Goldcorp Shares will: (a) rank equally in all respect with all then issued and outstanding common shares in Goldcorp; (b) be duly and validly issued; and (c) be fully paid. 4.10 Joint holders In the case of Scheme Shares held in joint names: (a) any cheque required to be paid to the Scheme Participants by Goldcorp, the Target or the Nominee must be payable to the joint holders and be forwarded to the holder whose name appears first in the Register as at the Record Date; and (b) share certificates or holding statements (or equivalent documents) for New Goldcorp Shares must be issued in the names of the joint holders and sent to the holder whose name appears first in the Register as at the Record Date. 4.11 Payment of Scheme Consideration to related bodies corporate Nothing in this Scheme requires Goldcorp to provide Scheme Consideration to a Scheme Participant that is Goldcorp, a related body corporate of Goldcorp, or a person who holds Scheme Shares on behalf of or for the benefit of Goldcorp or related body corporate of Goldcorp. 5 Dealings in Scheme Shares 5.1 Entitlement to participate Every Target Shareholder entered on the Register as a holder of a Target Share is entitled to participate in this Scheme. 5.2 Recognised dealings To establish the identity of the Scheme Participants, dealings in Scheme Shares will only be recognised if: (a) in the case of dealings of the type to be effected using CHESS, the transferee is registered in the Register as the holder of the relevant Scheme Shares on or before the Record Date; and (b) in all other cases, registrable transmission applications or transfers in registrable form in respect of those dealings are received on or before the Record Date at the place where the Register is kept. 5.3 Register (a) The Target must register any registrable transmission applications or transfers of the Scheme Shares received in accordance with clause 5.2(b) on or before the Record Date. (b) If the Scheme becomes Effective, a holder of Scheme Shares (and any person claiming through that holder) must not dispose of or purport or agree to dispose of any Scheme Shares or any interest in them after the Effective Date. (c) The Target must not accept for registration or recognise for any purpose any transmission, application or transfer in respect of Scheme Shares received after the Record Date (except a transfer to Goldcorp pursuant to this Scheme and any subsequent transfer by Goldcorp or its successors in title). (d) For the purpose of determining entitlements to the Scheme Consideration, the Target must maintain the Register in accordance with the provisions of this clause 5 until the Scheme Consideration has been provided to the Scheme Participants. The Register in this form will solely determine entitlements to the Scheme Consideration. (e) Any statements of holding (or any share certificate or other document of title) in respect of Scheme Shares will cease to have effect after the Record Date as documents of title in respect of those shares (other than statements of holding, certificates or documents of title in favour of Goldcorp and its successors in title). After the Record Date, each entry current on the Register as the Record Date (other than entries in respect of Goldcorp or its successors in title) will cease to have effect except as evidence of entitlement to the Scheme Consideration. (f) Within three Business Days after the Record Date the Target must procure that details of: (i) the names, Registered Addresses and holdings of Scheme Shares for each Scheme Participant, as shown in the Register at the Record Date, (ii) the Election (if any) of each Scheme Participant; and (iii) the names and Registered Addresses of every Ineligible Foreign Shareholder at the Record Date, are available to Goldcorp in such form as Goldcorp reasonably requires. 5.4 Quotation of the Target Shares (a) It is expected that trading in Target Shares on ASX will be suspended no later than the Business Day following the day on which Goldcorp notifies ASX of granting of the Scheme Order. It is expected that trading in the Target Shares on the TSX will be suspended on the third day following the day on which Goldcorp notifies the TSX of the making of the Scheme Order. (b) On the first Business Day after the Implementation Date, the Target will apply for termination of the official quotation of the Target Shares on ASX. (c) Immediately following the Scheme becoming Effective, Goldcorp will notify the TSX of this event and request the delisting of the Target Shares from the TSX. 5.5 Quotation of New Goldcorp Shares Goldcorp will apply for the equivalent of the official quotation of the New Goldcorp Shares on the TSX and the NYSE and will ensure that such shares are listed for trading on the NYSE and TSX as soon as practicable following the Effective Date in accordance with the policies of such exchanges. 6 General provisions 6.1 Lodgement of Scheme Order with ASIC The Target must lodge with ASIC an office copy of the Scheme Order by 5.00pm on the first Business Day after the day on which the Court approves the Scheme at the Second Court Hearing. 6.2 Variations, alterations and conditions The Target may, with the prior consent of Goldcorp, by its counsel or solicitor consent on behalf of all persons concerned to any variations, alterations or conditions to the Scheme which the Court thinks fit to impose. 6.3 Power of attorney Upon the Scheme becoming Effective, each Scheme Participant, without the need for any further act by any Scheme Participant, irrevocably appoints the Target and each of its directors and secretaries (each of them severally and any two or more of them jointly) as its attorney and agent for the purpose of executing any document necessary or expedient to give effect to this Scheme, including \ a proper instrument of transfer of their Scheme Shares which may be a master transfer of all of the Scheme Shares. 6.4 Title and rights in the Target Shares On and from the Implementation Date, Goldcorp will be beneficially entitled to the Scheme Shares transferred to it under the Scheme, pending registration by the Target of Goldcorp in the Register as the holder of those Scheme Shares. 6.5 Scheme Participants' agreements (a) The Scheme Participants agree to the transfer of their Scheme Shares to Goldcorp in accordance with this Scheme. (b) The Scheme Participants must accept the New Goldcorp Shares issued by way of Scheme Consideration and agree to be members of Goldcorp and be bound by Goldcorp Constitution. This clause does not apply to Ineligible Foreign Shareholders. 6.6 Status of Scheme Shares (a) To the extent permitted by law, the Scheme Shares transferred to Goldcorp under this Scheme must be transferred free from all Encumbrances. (b) Each Scheme Participant is deemed to have warranted to Goldcorp that: (i) all their Scheme Shares (including any rights and entitlements attaching to those shares) that are transferred to Goldcorp under this Scheme are, at the date of transfer, fully paid and free from all Encumbrances and restrictions on transfers of any kind; and (ii) they have full power and capacity to sell and to transfer their Scheme Shares (including any rights and entitlements attaching to those shares) to Goldcorp under this Scheme. 6.7 Further action by the Target The Target will execute all documents and do all things necessary or expedient to implement, and perform its obligations under, this Scheme. 6.8 Authority and acknowledgement Each of the Scheme Participants: (a) consents to the Target doing all things necessary or expedient for or incidental to the implementation of this Scheme; (b) acknowledges that this Scheme binds the Target and all Scheme Participants (including those who do not attend the Scheme Meeting or do not vote at that meeting or vote against the Scheme at that Meeting); and (c) acknowledges that, to the extent of inconsistency between this Scheme and Target's constitution, this Scheme overrides Target's constitution. 6.9 Notices Where a notice, transfer, transmission application or other communication referred to in this Scheme is sent by post to the Target, it is not deemed to be received in the ordinary course of post or on a date other than the date (if any) on which it is actually received at the Target's registered office or at the Target's share registry. 6.10 Governing law This Scheme is governed by the law in force in Western Australia. 6.11 Fees and charges All filing, application or similar fees due in relation to this Scheme must be paid in accordance with the Merger Implementation Agreement. 6.12 No liability when acting in good faith None of the Target or Goldcorp nor any officer of any of those companies is liable for anything done or omitted to be done in the performance of this Scheme in good faith. 6.13 Instructions to Target Except for a Scheme Shareholder's tax file number, any binding instruction or notification between the Scheme Shareholder and the Target relating to the Scheme Shares or a Scheme Shareholder's status as a Target Shareholder (including, any instructions relating to payment of dividends, or to communications from the Target) will, from the Implementation Date, be deemed, by reason of the Scheme, to be a similarly binding instruction or notification to, and accepted by, Goldcorp in respect of the New Goldcorp Shares transferred to Scheme Shareholders until that instruction or notification is revoked or amended in writing addressed to Goldcorp at its share registry. 6.14 Characterisation of Merger for US Tax Purposes (a) The parties intend to adopt this Scheme as a plan of reorganisation for purposes of the United States Internal Revenue Code of 1986, as amended (the "Code") and applicable regulations thereunder and to treat the transactions contemplated by this Scheme as a reorganisation in accordance with the provisions of Section 368(a) of the Code for United States federal income tax purposes. (b) Notwithstanding the foregoing, the Target makes no representation or warranty to any other party, including any Scheme Participant or other holder of securities of the Target or Goldcorp (including, without limitation, stock options, warrants or other similar rights) regarding the United States tax treatment of such transactions, including but not limited to whether such transactions will qualify as a tax deferred plan of reorganisation for purposes of United States federal, state or local income tax. (c) The Scheme Participants confirm they are relying solely on their own tax advisors in connection with this Scheme. 6.15 Canadian tax election (a) An Eligible Holder whose Scheme Shares are exchanged for New Goldcorp Shares pursuant to this Scheme is entitled to make a joint income tax election, pursuant to section 85 of the Tax Act (and any analogous provision of provincial income tax law) (a "Section 85 Election") with respect to the exchange by providing two signed copies of the necessary joint election forms to an appointed representative, as directed by Goldcorp, within 90 days after the Effective Date, duly completed with the details of the number of Scheme Shares transferred and the applicable agreed amounts for the purposes of such joint elections. (b) Goldcorp shall, within 90 days after receiving the completed joint election forms from an Eligible Holder, and subject to such joint election forms being correct and complete and in compliance with requirements imposed under the Tax Act (or applicable provincial income tax law), sign and return them to the Eligible Holder for filing with the Canada Revenue Authority (or the applicable provincial tax authority). (c) Neither Goldcorp, the Target nor any successor corporation shall be responsible for the proper completion of any joint election form nor, except for the obligation to sign and return duly completed joint election forms which are received within 90 days of the Effective Date, for any taxes, interest or penalties resulting from the failure of an Eligible Holder to properly complete or file such joint election forms in the form and manner and within the time prescribed by the Tax Act (or any applicable provincial legislation). In its sole discretion, Goldcorp or any successor corporation may choose to sign and return a joint election form received by it more than 90 days following the Effective Date, but will have no obligation to do so. 6.16 Further transactions (a) The Target , Goldcorp and the Scheme Participants acknowledge that after the Effective Date Goldcorp intends to transfer all of the Target shares to a wholly-owned Australian subsidiary ("Goldcorp Sub") and that the Target will merge with and into Goldcorp Sub pursuant to a further scheme under section 413 of Corporations Act, pursuant to which all of the assets and liabilities of the Target (except to the extent such liabilities have otherwise been satisfied or discharged) become the assets and liabilities of Goldcorp Sub, and the Target will cease its separate legal existence. (b) Goldcorp acknowledges that the transaction under this Scheme and the amalgamation contemplated in clause 6.16(a) are interdependent steps in an integrated transaction intended to constitute a statutory merger for the purposes of Section 368(a) of the Code. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.