The purpose of this letter is to submit to you an offer of a “SHARE PURCHASE AGREEMENT” (the “Offer” and the “Agreement”, respectively) to be entered into by LI3 ENERGY, INC. on one side, and BEATRIZ SILVIA VAZQUEZ NISTICO and DANIEL BORIS GORDON, on...
March
12th,
2010
LI
ENERGY 3 INC.,
Xx. Xxxxx
x Xxxxxx 000 Xx. 000
Xxx
Xxxxxx, Xxxx
Xxxx
Attn: Xxxx
Xxxxx, Chief Executive Officer
Re.:
SHARE PURCHASE AGREEMENT OFFER
Dear
Sirs,
The
purpose of this letter is to submit to you an offer of a “SHARE PURCHASE AGREEMENT” (the
“Offer” and the
“Agreement”,
respectively) to be entered into by LI3 ENERGY, INC. on one side,
and XXXXXXX XXXXXX XXXXXXX
XXXXXXX and XXXXXX XXXXX
XXXXXX, on the other side.
This
Offer will be considered as fully accepted if LI3 Energy Inc. delivers an
acceptance letter duly signed by
its representative, in substantially the same terms attached hereto as
APPENDIX B (the “Acceptance Letter”,) within 1 day from the reception of the
present letter.
Once the
Offer is accepted:
|
|
(i)
|
the
Agreement will be governed by the terms and conditions set forth in the
APPENDIX A
attached to this Offer, and,
|
|
|
(ii)
|
Xx.
Xxxxxxx Xxxxxxx Xxxxxxxxx and Mrs. Marbeglys Xxxxxxxx Xxxxxx –as spouses
of XXXXXXX XXXXXX XXXXXXX XXXXXXX and XXXXXX XXXXX XXXXXX respectively-
shall furnish to LI3 Energy Inc. with written evidence of the granting of
their consent to the Agreement in the terms of Section 1277 of the
Argentine Civil Code in substantially the same terms attached hereto as
APPENDIX C (the
“Spouses’
Consent”).
|
Yours
sincerely,
|
/s/ Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx
|
|
Xxxxxxx
Xxxxxx Xxxxxxx Xxxxxxx
|
|
/s/ Xxxxxx Xxxxx Xxxxxx
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|
Xxxxxx
Xxxxx Xxxxxx
|
ACCEPTANCE
LETTER
March
12th, 2010
XXXXXXX
XXXXXX XXXXXXX XXXXXXX
XXXXXX
XXXXX XXXXXX
Reconquista
1016 0xx.
Xxxxx
X0000XXX
Xxxxxx Xxxxx
Xxxxxxxxx
Re:
ACCEPTANCE
LETTER
Dear
Sir,
We hereby
fully accept your SHARE
PURCHASE AGREEMENT OFFER sent through the letter dated March 12th,
2010.
Yours
Sincerely,
|
Per:
|
/s/ Xxxx Xxxxx
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Name: Xxxx
Xxxxx
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|
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Title: CEO
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I
have the authority to bind the Corporation
APPENDIX
A
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
Among
- and
-
XXXXXXX
XXXXXX XXXXXXX XXXXXXX
and
-
XXXXXX
XXXXX XXXXXX
Dated
as of March 12, 2010
Table of
Content
|
1.
|
INTERPRETATION
|
2
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|
|
1.1
|
Definitions
|
2
|
|
|
1.2
|
Other
Terms
|
4
|
|
|
1.3
|
Other
Definitional Provisions
|
4
|
|
|
2.
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SALE
AND PURCHASE
|
4
|
|
|
2.1
|
Sale
and Purchase
|
4
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|
|
2.2
|
Allocation
of payments
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4
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|
|
2.3
|
Bank
Account
|
5
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|
2.4
|
Closing
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5
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|
2.5
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Pledge
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5
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3.
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REPRESENTATIONS
AND WARRANTIES OF SELLERS
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5
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3.1
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Organization,
etc
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5
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|
3.2
|
Authority
to Perform and Execute the Agreement
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5
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3.3
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Ownership
of Shares
|
5
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3.4
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No
conflicto
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5
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3.5
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Rights
Relating to Purchased Shares
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6
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3.6
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Capitalization;
No Liens
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6
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3.7
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Subsidiaries
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6
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3.8
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Financial
Information
|
6
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|
3.9
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Changes.
Etc
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6
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|
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3.10
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Taxes
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7
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3.11
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Compliance
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7
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3.12
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Consents
and Approvals
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7
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|
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3.13
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Litigation.
Etc
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7
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3.14
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Employee
Benefit Matters
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8
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3.15
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Labor
Matters.
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8
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3.16
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Voting
and Other Agreements
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8
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3.17
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Brokers
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8
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3.18
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Properties
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8
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3.19
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Environmental
Matters
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8
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3.20
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Insurance
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9
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3.21
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Intellectual
Property
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9
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3.22
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Master
Option Agreement
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9
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3.23
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Mining
Representations
|
10
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|
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4.
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REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER
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10
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4.1
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Organization,
etc
|
11
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|
|
4.2
|
Authority
to Perform and Execute the Agreement
|
11
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4.3
|
No
Conflict
|
11
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4.4
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Consents
and Approvals
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11
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4.5
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Absence
of Litigation
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11
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4.6
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Financing
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11
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5.
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CERTAIN
COVENANTS
|
11
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5.1
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Taxes
|
11
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5.2
|
Conduct
of Business Prior to the Closing
|
11
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5.3
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Due
diligence
|
12
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5.4
|
Books
and Records
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12
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5.5
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Confidentiality
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12
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5.6
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Authorizations;
Consents and Notices
|
13
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5.7
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Mining
Covenants
|
13
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|
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6.
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CONDITIONS
TO THE CLOSING
|
13
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6.1
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Bring
Down Representations, Warranties and Covenants
|
13
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6.2
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Delivery
of Closing Documentation
|
14
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6.3
|
Amendment
to the Company’s Estatuto
|
14
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6.4
|
Transfer
of Mining Properties
|
14
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6.5
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Category
of Minerals
|
14
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6.6
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Satisfaction
with Due Diligence
|
14
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6.7
|
Closing
of Master Option Agreement
|
14
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6.8
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Bring
Down Representations and Warranties by Purchasers
|
14
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6.9
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Non-Performance
of Conditions
|
14
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|
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7.
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INDEMNIFICATION
|
15
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7.1
|
Indemnification
by Sellers.
|
15
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7.2
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Indemnification
Procedures; Third Party Claims
|
15
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7.3
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Indemnification
by the Purchaser
|
16
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8.
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MISCELLANEOUS
|
16
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8.1
|
Survival
of Representations and Warranties: Severability
|
16
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8.2
|
Waivers
and Amendments
|
16
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8.3
|
Notices.
Etc
|
16
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8.4
|
Dispute
Resolution
|
16
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8.5
|
Governing
Law
|
17
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|
|
8.6
|
Successors
and Assigns, etc
|
17
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8.7
|
Spousal
Consents
|
17
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|
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8.8
|
Entire
Agreement
|
17
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|
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8.9
|
Severability
|
18
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8.10
|
Titles
and Subtitles
|
18
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8.11
|
Delays
or Omissions
|
18
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8.12
|
Expenses
|
18
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8.13
|
Disclosure
Supplements
|
18
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8.14
|
Future
Performance
|
18
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|
|
Schedule
“(c)” - Evidence of Assignment and Consent
|
|||
|
Schedule
“1.1(a)1” - Mining Rights Purchase Agreement
|
|||
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Schedule
“1.1(a)2” – Properties
|
|||
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Schedule
“2.2” - Sellers shareholding
|
|||
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Schedule
“2.3” - Sellers bank account
|
|||
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Schedule
“2.5” – Pledge
|
|||
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Schedule
“3.8” - Financial Information
|
|||
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Schedule
“3.9” – Changes
|
|||
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Schedule
“3.10” – Taxes
|
|||
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Schedule
“3.11” - Operating Approvals
|
|||
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Schedule
“3.12” - Consents and Approvals
|
|||
|
Schedule
“3.13”- Litigation
|
|||
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Schedule
“3.15”- Labor Matters
|
|||
|
Schedule
“3.18” – Properties
|
|||
|
Schedule
“3.19(b)” - Environmental Claims
|
|||
|
Schedule
“8.3” - Contact Detail
|
THIS AGREEMENT is made as of
the 12 day of March, 2010 (the "Effective
Date")
AMONG:
LI3
ENERGY INC.,
a
corporation formed under the laws of Nevada
(hereinafter
called "Purchaser")
ON THE FIRST PART and –
|
|
-
|
XXXXXXX
XXXXXX XXXXXXX XXXXXXX
an
individual ordinarily residing in Argentina
(hereinafter
called "Xxxxxxx")
ON THE SECOND PART and –
|
|
-
|
XXXXXX
XXXXX XXXXXX,
an
individual ordinarily residing in Argentina
(hereinafter
called "Xxxxxx")
ON THE THIRD PART
RECITALS
|
|
(a)
|
Xxxxxxx
and Xxxxxx (each a “Seller”
and collectively, the "Sellers") beneficially own all
of the issued and outstanding shares of Notoenergy S.A. (the “Company”),
where the Company beneficially owns a one hundred percent (100%) interest
in the Properties (as defined herein) known as the Cauchari brines,
located in Puna, Argentina; and
|
|
|
(b)
|
Puna
Litihium Corporation (“Puna”)
entered into a letter of intent dated November 23rd,
2009 with Lacus Minerals S.A. (“Lacus”),
and the Sellers (the "Letter
of Intent"), where the Sellers
granted to Puna an option to acquire all of the issued and outstanding
shares of the Company.
|
|
|
(c)
|
Puna
and Purchaser entered, on the date hereof, into an assignment agreement,
pursuant to which Puna assigned to Purchaser, Puna’s rights and
obligations under the Letter of Intent, subject to the terms and
conditions set forth thereunder, and the Sellers have provided their
consent to such assignment, as evidenced in Schedule
“(c)” hereto.
|
|
|
(d)
|
Sellers
and Purchaser have decided to terminate the Letter of Intent, and have
agreed that all rights and obligations between them will be governed by
the terms and conditions set forth in this Agreement, provided that all
terms and conditions set forth in the Letter of Intent will be superseded
by the terms and conditions set forth
herein.
|
|
|
(e)
|
As
a result of above and subject to the prior occurrence of the execution and
closing of a certain master option agreement entered on the date hereof by
and between Lacus and Purchasers (the “Master
Option Agreement”), Purchaser wishes to acquire one hundred percent
(100%) of the issued and outstanding shares of the Company (the "Purchased
Shares")
and, as a result, a one hundred percent (100%) interest in the Properties,
pursuant and subject to the terms and conditions of this
Agreement.
|
1
NOW THEREFORE THIS AGREEMENT
WITNESSES THAT, in consideration of the premises and mutual covenants and
agreements herein set forth, the parties hereto hereby agree as
follows:
SECTION 1
INTERPRETATION
|
1.1
|
Definitions. Unless
the context otherwise requires, in this Agreement, the following terms
shall have the meanings set out
below:
|
“Affiliate”
means with respect to any Person at any time, any other Person that, directly or
indirectly, through one or more intermediaries controls, is controlled by or is
under common control with such Person. For the purpose of this definition,
"control"
(including the terms "controlling", "controlled by" and "under common control
with"), as used with respect to any Person shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities,
by contract, agency or otherwise.
“Agreement”
means this Share Purchase Agreement, including the recitals herein and the
schedules hereto, all as amended from time to time.
“Applicable
Laws” means all
federal, provincial, territorial, municipal and local Laws (statutory or
common), rules, resolutions, ordinances, regulations, grants, concessions,
franchises, licenses, orders, directives, judgments, decrees, and other
governmental restrictions, including permits and other similar requirements,
whether legislative, municipal, administrative or judicial in nature, including
Environmental Laws, which are applicable to the Parties and the Properties,
regardless of whether or not in existence or enacted or adopted hereafter;
provided, however, nothing in this definition is intended to make Laws
applicable to the Parties during periods when the Laws are not applicable by
their terms or the timing of their enactment.
“Argentine
GAAP” means Generally Accepted Accounting Principles in Argentina as
recommended in the handbook of the Argentine Institute of Chartered
Accountants.
“Closing"
has the meaning ascribed thereto in Section
2.4 of this Agreement.
“Closing
Date" has the meaning ascribed thereto in Section
2.4 of this Agreement.
“Company”
has the meaning ascribed thereto in Recital
(a) of this Agreement.
“Dispute”
has the meaning ascribed thereto in Section
8.4(a) of this Agreement.
"Effective
Date" has the meaning ascribed thereto in the heading of this
Agreement.
"Estatutos" means with respect to
any corporate entity, the by-laws of such corporate entity.
“First
Category of Minerals” means the category and
minerals identified under Section 3 of the Argentinean Mining Code.
“Xxxxxx”
means Xxxxxx Xxxxx Xxxxxx.
“Initial
Purchase Price” has the meaning ascribed thereto in Section
2.1(a) of this Agreement.
"Knowledge
of a Seller" or "to a
Seller's knowledge" means, with respect to matters relating to a Seller,
the actual knowledge of the relevant Seller with respect to such matters and, in
the case of any matters relating to the Company, the actual knowledge, after due
inquiry, of any of the current directors.
2
“Lacus”
has the meaning ascribed thereto in Recital
(b) of this Agreement.
"Letter of
Intent" has the
meaning ascribed thereto in Recital
(b) of this Agreement.
"Lien"
means any mortgage, pledge or other encumbrance having the effect of
constituting a security interest.
"Losses"
has the meaning ascribed thereto in Section
7.1(a) of this Agreement.
“Master
Option Agreement” has the meaning ascribed thereto in Recital
(e) of this Agreement.
"Material
Adverse Change" "Material
Adverse Effect" means any change in, or effect on, the Company that is
materially adverse to the results of operations or the financial condition of
the Company, taken as a whole, after giving effect to this Agreement and the
transactions contemplated hereby.
“Mining
Authority” means the Mining Court of the Province of Salta.
"Mining
Fees" means fees to be paid under the Properties’ files, as requested by
Section 213, 215, 216 and any other relevant section of the Argentinean Mining
Code.
“Mining
Rights Purchase Agreement” means the mining rights
purchase agreement attached hereto as Schedule
“1.1(a)1”, entered into by and between the Recorded Owners and the
Company -by means of pubic deed- on February 22nd, 2010,
pursuant to which the Company acquired the Properties from the Recorded Owners
for the consideration established therein. This deed reflects the exact content
of the private document executed by and between the Recorded Owners and the
Company on November 18th,
2009.
“Xxxxxxx”
means Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxx.
"Operating
Approvals" has the meaning ascribed thereto in Section
3.11 of this Agreement.
"Person"
means any natural person, corporation, association, partnership, organization,
business, firm, joint venture, trust, unincorporated organization or any other
entity or organization, including a government or any political subdivision,
department or agency of any government.
“Pesos”
or “$”
means the currency of Argentina which at the relevant time is legal tender for
the payment of public or private debts.
“Properties”
means those mining properties identified in Schedule
“1.1(a)2” hereto, which were acquired by the Company from the Recorded
Owners under the Mining Rights Purchase Agreement.
“Puna”
has the meaning ascribed thereto in Recital
(b) of this Agreement.
"Purchased
Shares" has the
meaning ascribed thereto in Recital
(e) of this Agreement.
"Purchase
Price" has the meaning ascribed thereto in Section
2.1 of this Agreement.
3
“Purchaser”
means LI3 Energy, INC.
“Recorded
Owners” means
Xxxxxx Xxxxx Xxxxxx and Xxxxxxx Xxxxxxxxx.
“Remaining
Purchase Price” has the meaning ascribed thereto in Section
2.1(b) of this Agreement.
"Request"
has the meaning ascribed thereto in Section
8.4(a) of this Agreement.
“Second
Category of Minerals” means the category and
minerals identified under Section 4 of the Argentinean Mining Code.
"Sellers" has the meaning ascribed
thereto in Recital
(a) of this Agreement.
"Taxes"
means all taxes, charges, fees, levies or other assessments, including without
limitation, all net income, gross income, ad valorem, value added,
turnover, transfer, franchise, profits, license, withholding, payroll,
employment, excise, estimated, severance, stamp, occupation, property or other
taxes, customs duties, fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any Argentine tax authories, including any local
taxing authority and any political subdivision, instrumentality, agency or
similar body of any Argentine or local tax authorityies.
"Tax
Returns" means all returns, declarations, reports, estimates, information
returns and statements and other documents of, relating to, or required to be
filed in respect of any and all Taxes.
“U.S.
dollars” or “US$” means the
currency of the United States of America which at the relevant time is legal
tender for the payment of public or private debts.
|
1.2
|
Other
Terms. Other terms
may be defined elsewhere in the text of this Agreement and, unless
otherwise indicated, shall have such meaning throughout this
Agreement.
|
|
1.3
|
Other
Definitional Provisions. The words "hereof", "herein" and
"hereunder" and words of similar import, when used in this Agreement,
shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The terms defined in the singular shall have
a comparable meaning when used in the plural, and vice
versa.
|
SECTION 2 – SALE AND
PURCHASE
|
2.1
|
Sale
and Purchase. Upon the
terms and subject to the conditions of this Agreement, Sellers will sell
to the Purchaser and the Purchaser will purchase from Sellers on the
Closing Date
(as defined below) the Purchased Shares, for an aggregate amount of US$300,000.00 (the
"Purchase
Price"), payable as follows, subject to the conditions set forth in
Section
6:
|
|
|
(a)
|
$200,000.00 as of
Effective Date (the “Initial
Purchase Price”);
|
|
|
(b)
|
$100,000.00 as of
Closing Date (the “Remaining
Purchase Price”).
|
|
2.2
|
Allocation
of payments. The Purchase Price shall be allocated between the
Sellers pro rata to their respective ownership interests in the Company,
as set forth in Schedule
“2.2” hereto.
|
4
|
2.3
|
Bank
Account. Payment of the Purchase Price shall be done in immediately
available funds, by wire transfer to the account(s) indicated in Schedule
“2.3” hereto.
|
|
2.4
|
Closing.
Upon the terms and subject to the conditions of this Agreement, the
purchase and sale of the Purchased Shares shall take place at the offices
of XXXX Abogados, located at Xx. Xxxxx Xx 0000, 0xx
Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxx at 10:00 a.m. (Buenos Aires, Argentine
time) at a closing (the "Closing")
on the date on which all the conditions to the Closing set forth in Section
6 have
been satisfied or waived, but in any event the Closing Date shall be no
later than 90 days following the Effective Date, or at such other time and
place as Sellers and the Purchaser may mutually agree upon in writing (the
day on which the Closing takes place being hereinafter referred to as the
"Closing
Date").
|
Upon the
terms and subject to the conditions of this Agreement, at the Closing, Sellers
shall take such actions as may be necessary under Applicable Law for the Company
to register the Purchased Shares in the Purchaser's name and Purchaser shall pay
the Seller the Remaining Purchase Price.
|
2.5
|
Pledge.
Sellers agree to, as of Effective Date, pledge all the Purchase Shares in
favour of Purchaser until Closing takes place, in the terms and conditions
set forth in Schedule
“2.5” hereof.
|
SECTION 3 - REPRESENTATIONS AND
WARRANTIES OF SELLERS
Each
Seller hereby severally and jointly with each other represents and warrants to
the Purchaser as of the date hereof and as of the Closing Date as
follows:
|
3.1
|
Organization,
etc. The Company
is a corporation duly organized and validly existing under the laws of
Argentina and has all requisite corporate power and authority to conduct
its business and enter into this
transaction
|
|
3.2
|
Authority
to Perform and Execute the Agreement. Seller has
all requisite right, power and authority and full legal capacity to enter
into this Agreement, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Seller and the consummation by Seller of the
transactions contemplated hereby have been duly authorized by all
necessary action on the part of Seller, and no other proceedings
(corporate or otherwise) on its part are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Seller and assuming the
due authorization, execution and delivery by the Purchaser, constitutes
the legal, valid and binding obligation of Seller enforceable against it
in accordance with its terms.
|
|
3.3
|
Ownership
of Shares. Seller owns
the shares set forth opposite its name on Schedule
“2.2” and has good and marketable title to such shares, free and
clear of all Liens. Upon delivery to the Purchaser of the Purchased Shares
and registration of the transfer of the Purchased Shares on the Company's
Shareholders' Book and payment of the Purchase Price by the Purchaser as
herein provided, the Purchaser will receive good and marketable title to
such Purchased Shares, free and clear of all
Liens.
|
|
3.4
|
No
conflict. The
execution, delivery and performance of this Agreement by Seller or the
consummation of the transactions contemplated hereby do
not
|
|
|
(a)
|
conflict
with or violate any Applicable Law applicable to Seller or the Company,
and
|
5
|
|
(b)
|
conflict
with, or result in a breach of or default under, any terms or conditions
of the Estatutos
or other organizational documents of Seller and the
Company.
|
|
3.5
|
Rights
Relating to Purchased Shares. Neither of the Sellers nor any other
third party has any right of first refusal or preemptive rights in
connection with the sale of the Purchased
Shares.
|
|
3.6
|
Capitalization;
No Liens.
|
|
|
(a)
|
All
the issued and outstanding capital stock of the Company consists of 60,000
shares of common stock par value each of $1. All the Purchased Shares have
been duly authorized and are fully paid and non assessable. All the issued
and outstanding Purchased Shares are held by each shareholder and in such
amounts as set forth in Schedule
“2.2”.
|
|
|
(b)
|
There
are no outstanding rights, plans, options, warrants, calls, conversion
rights or any obligations, agreements, arrangements or commitments of any
character, either firm or conditional (including without limitation
pursuant to uncapitalized capital contributions) obligating the Company to
issue, deliver or sell, or cause to be issued, delivered or sold, any
shares of capital stock or any securities exchangeable for, or convertible
into, shares of capital stock of the Company or obligating the Company to
grant, extend or enter into any such agreement, arrangement, requirement
or commitment or providing for the right on the part of any shareholder to
subscribe for such shares.
|
|
3.7
|
Subsidiaries.
The Company has no subsidiaries.
|
|
3.8
|
Financial
Information.
|
|
|
(c)
|
The
audited consolidated balance sheet for the Company dated as of June
30th,
2009 and the related statements of income prepared in accordance with
Argentine GAAP with only such deviations from Argentine GAAP as are
referred to in the notes to the Company's financial statements, are set
forth hereto as Schedule
“3.8”.
|
|
|
(d)
|
The
books and records of the Company have been maintained in accordance with
Argentine GAAP and otherwise in a manner customary in the industry sector
in Argentina. Also, the Company's practices with respect to such books and
records are in accordance in all material respects with the Company's
policies and procedures.
|
|
|
(e)
|
The
Company has not declared any dividends or distributions to shareholders
with respect to the Purchased Shares since June 30th
2009.
|
|
3.9
|
Changes.
etc. Except as
provided in Schedule
“3.9”, since June 30, 2009 until the day
hereof
|
|
|
(a)
|
the
Company has been operated consistent with past practice,
and
|
|
|
(b)
|
there
has been no change in the business, condition (financial or otherwise),
affairs, operations, assets or properties of the Company, other than
changes in the ordinary course of business, consistent with the past
practice, which would not, either individually or in the aggregate,
constitute a Material Adverse
Change.
|
6
|
3.10
|
Taxes.
|
|
|
(a)
|
Except
as set forth in Schedule
“3.10” and such matters that would not have a Material Adverse
Effect, the Company has within the time and in the manner prescribed by
Applicable Law (including the right to legally benefit loss carried
forward schemes), paid all Taxes (and filed on a timely basis all Tax
Returns required to be filed, which Tax Returns were true, complete and
correct) that are due and payable on or prior to the Closing Date,
including any such Taxes due and payable pursuant to the terms of all Tax
Returns, filed with the corresponding authorities on a timely basis in
respect of all periods on or prior to the Closing Date; provided, however, this
representation and warranty shall not be deemed to be breached due to the
imposition of any Retroactive Tax. Retroactive Tax shall mean any Tax due
or claimed pursuant to any Applicable Law enacted after the date of this
Agreement in respect of any period on or prior to the Closing Date,
including any interpretation or change in interpretation of any Applicable
Law with respect to any Tax existing or in effect on or prior to the
Closing Date.
|
|
|
(b)
|
There
are no liens for Taxes upon the assets of any of the Company except liens
for Taxes not yet due and payable.
|
|
|
(c)
|
Except
as set forth in Schedule
“3.10” (which shall set forth the nature of the proceeding, the
type of return, the deficiencies proposed or assessed including the amount
thereof and the taxable year in question) no audits or other
administrative proceedings, examinations, or court proceedings are
presently pending against the Company with regard to any Taxes or Tax
Returns.
|
|
3.11
|
Compliance. Except as
would not have a Material Adverse Effect or as provided for in Schedule
“3.11”, the Company has or has obtained or made all material
permits, approvals, authorizations, registrations, qualifications and
filings with and under all Argentine Applicable Laws, authorities and
agencies that are required to enable it to carry on its prospective
business in the future (the "Operating
Approvals"), and all such Operating Approvals are in full force and
effect with respect to the Company and no suspension of them in
writing.
|
|
3.12
|
Consents
and Approvals. Except as provided in Schedule
“3.12”, no consent, approval or authorization of, or declaration of
filing with, any governmental, judicial or regulatory authority on the
part of the Company or Seller is required for the valid execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby by Sellers.
|
|
3.13
|
.Litigation.
etc. Except as set
forth in Schedule
“3.13”, there is no suit, claim, action, proceeding or
investigation pending or, to the Seller's Knowledge, threatened, including
without limitation by any third party, government or governmental agency
which either individually or in the aggregate, if adversely determined to
the Company is likely to result in a Material Adverse Change or in any
impairment of the right or ability of the Company to carry on its business
as purported to be conducted and none which questions the validity of this
Agreement or any action taken or to be taken in connection herewith.
Except as set forth in Schedule
“3.13” the Company is not
a party or subject to the provisions of any order, injunction, judgment or
decree of any court or government agency or instrumentality (other than
government decrees of general applicability) which may reasonably be
expected to adversely affect its prospective businesses; there is no
action, suit, proceeding or investigation by the Company currently pending
or which the Company intends to initiate which may reasonably be expected
to result in a Material Adverse
Change.
|
7
|
3.14
|
Employee
Benefit Matters. There are no
material bonus, stock option, stock purchase, incentive, deferred
compensation, retiree medical or life insurance, supplemental retirement,
severance or other related employee benefit plans, programs or
arrangements, and all material employment or compensation agreements, in
each case for the benefit of, or relating to, current employees and former
employees of the Company.
|
|
3.15
|
Labor
Matters. Schedule
“3.15” lists as of the date of this Agreement any collective
bargaining agreement or other labor union contract applicable to persons
employed by the Company. There are no grievances outstanding against the
Company under any such agreement or contract which would have a Material
Adverse Effect and there are no strikes, slowdowns, work stoppages,
lockouts, or threats thereof, by or with respect to any employees of such
Company which would have a Material Adverse
Effect.
|
|
3.16
|
Voting
and Other Agreements. There are no
stockholder agreements, voting trusts, proxies or other similar agreements
or understandings in effect with respect to the voting or transfer of any
of the Purchased Shares.
|
|
3.17
|
Brokers.
No broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on
behalf of the Sellers.
|
|
3.18
|
Properties. Except as
provided in Schedule
“3.18”, the Company has goods and marketable title and the right of
possession to all real properties
|
|
3.19
|
Environmental
Matters
|
|
|
(a)
|
For
the purposes of this Agreement:
|
|
|
(i)
|
"Environmental
Matters" means any matter arising out of, relating to or resulting
from pollution, protection of the environment and human health or safety,
health or safety of the public or employees, sanitation, and any matters
relating to emissions, discharges, releases or threatened releases of
environmentally relevant materials or otherwise arising out of, resulting
from or relating to the presence, manufacture, packaging, labeling,
processing, distribution, use, generation, treatment, storage, disposal,
transport or handling or exposure to environmentally relevant materials or
arising out of, resulting from, or relating to compliance with
Environmental Laws.
|
|
|
(ii)
|
"Environmental
Costs" means, without limitation, any costs of investigation,
remediation, removal, or other response actions, losses liabilities,
obligations, payments, damages (including, but not limited to, bodily
injury, death or property damage), civil or criminal fines or penalties,
costs of shutdown, diminution in operations, product withdrawals or
discontinuance of distribution of products (including, but not limited to,
direct or indirect damages), judgments, settlements, interest, costs and
expenses (including attorney's fees and costs) arising out of, relating to
or resulting from any Environmental
Matter.
|
|
|
(iii)
|
"Environmental
Laws" means, without limitation any Argentine Applicable Law
governing Environmental Matters (including without limitation prescribed
work practices, and technical or other standards issued by competent
organizations which relate to Environmental Matters), as the same have
been or may be amended from time to time, including any law providing any
right or remedy with respect to Environmental Matters, and all applicable
judicial and administrative decisions, orders, and decrees relating to
Environmental Matters.
|
8
|
|
(iv)
|
"Environmental
Permits" means permits, licenses, authorizations, certificates,
registrations and other governmental consents and
approvals.
|
|
|
(b)
|
To
Seller's Knowledge, the operations and activities of the Company, comply
in all applicable Environmental Laws and, except as provided in Schedule
“3.19(b)” there are no claims, notices, civil, criminal or
administrative actions, suits, hearings, investigations, penalty
assessments, inquiries or proceedings pending, asserted or, to the
Seller's Knowledge, threatened by any governmental or other entity that
are based on or related to any Environmental Matters including, without
limitation, the violation of any Environmental Laws or the violation of or
the failure to have any required Environmental Permits. To Seller's
Knowledge, there are presently no outstanding judgments, decrees or orders
of any court or governmental or administrative agency against or affecting
the Company arising from, relating to or resulting from Environmental
Matters.
|
|
3.20
|
Insurance.
The Company is, insured with reputable insurers against all risks normally
insured against by companies of the same type and in the same line of
business as required under Applicable Law, all of the insurance policies
or bonds maintained by them are in full force and effect, all premiums due
and owing thereunder through the date hereof have been paid in full, and
all material claims under such insurance have been filed in due and timely
fashion. To Seller's Knowledge, such insurance coverage is generally in
such form and amounts as is customarily maintained by prudent business
persons engaged in the same or similar lines of
business.
|
|
3.21
|
Intellectual Property.
|
|
|
(a)
|
The
Company owns or possesses valid and binding licenses and other rights to
use all patents, trade secrets, trade names, trademarks, inventions and
processes used in its business, and it has not received any notice or
claim with respect thereto that asserts the rights of others with respect
thereto.
|
|
|
(b)
|
To
the Sellers' Knowledge, the use by the Company of the trade names,
trademarks or logos in a manner consistent with past practice will not
result in the infringement of the rights of any third party as of the
Closing Date.
|
|
3.22
|
Master
Option Agreement. The Sellers expressly acknowledge
that:
|
|
|
(a)
|
Sellers
have been provided with a copy of the executed version of the Master
Option Agreement, and Sellers expressly acknowledge herein that closing
under the Master Option Agreement is subject to certain conditions
detailed in Section
12 of the Master Option Agreement, which Sellers represent to know
and accept.
|
|
|
(b)
|
Purchaser
would not have entered into this Agreement if Sellers had not accepted to
subject Closing hereunder to the closing under the Master Option
Agreement, since for Purchaser the purchase of the Purchased Shares
hereunder without the Master Option Agreement being in force is of no
interest.
|
9
|
3.23
|
Mining
Representations
|
|
|
(a)
|
The
Company is, as of the Effective Date, the sole beneficial owner of the
Properties, as evidenced in the Mining Right Purchase Agreement.
Notwithstanding the foregoing, as of the date hereof the transfer of
ownership of the Properties from the Recorded Owners to the Company has
not been recorded under the mining
files.
|
|
|
(b)
|
the
concessions of the Properties:
|
|
|
(i)
|
were
validly issued,
|
|
|
(ii)
|
are
registered before the Mining Authority as indicated in Section
3.23(a)
above,
|
|
|
(iii)
|
are
presently in good standing, including with respect to the payment of all
Mining Fess, taxes and duties and the filing of all assessment reports
required to date, subject to compliance with Applicable Laws of Argentina
in connection therewith, and
|
|
|
(iv)
|
are
presently free and clear of any Liens or
encumbrances;
|
|
|
(c)
|
all
operations on the Properties by the Company have been in compliance with
all Applicable Laws, including but not limited to mining, labour and
taxation laws and Environmental Laws and there are no outstanding work
orders or actions to be taken under Argentine legal requirements in
respect of the Properties;
|
|
|
(d)
|
the
Company has the rights to explore the Properties and neither the Company
nor the Sellers have been served with any notice of any adverse claims
against any of the Properties;
|
|
|
(e)
|
to
the best Sellers’ knowledge the surfaces properties are fiscal
lands;
|
|
|
(f)
|
to
the best Sellers’ knowledge, information and belief, the Properties do not
lie within any protected area, rescued area, reserve, reservation,
reserved area or special needs lands as designated by any governmental
entity having jurisdiction, that would materially impair the development
of a mining project on such lands;
|
|
|
(g)
|
to
the best of Sellers’ knowledge, information and belief, the Properties do
not lie within any border or frontier zone as designated by any
governmental entity, that would have an impact on any foreign individual
or company directly or indirectly controlled by a foreign company, that
would acquire the Properties; and
|
|
|
(h)
|
Sellers
have made available to Purchaser all material information in its
possession or control relating to work done on or with respect to the
Properties, provided that Purchaser is not aware of any material facts or
circumstances that have not been disclosed to Purchaser and that should be
disclosed to prevent the representations and warranties contained in this
Section
3.23
from being misleading.
|
SECTION 4 - REPRESENTATIONS AND
WARRANTIES OF THE PURCHASER
The
Purchaser represents and warrants to Sellers as of the date hereof and as of the
Closing Date as follows:
10
|
4.1
|
Organization,
etc. The Purchaser
is a company duly organized, validly existing and in good standing under
the laws of Nevada, USA. The Purchaser has all requisite corporate power
and authority to own and operate its properties and to carry on its
business as now conducted.
|
|
4.2
|
Authority
to Perform and Execute the Agreement. The Purchaser has all
requisite right, power and authority and full legal capacity to enter into
this Agreement, to carry out its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement, by the Purchaser and the consummation by the Purchaser of the
transactions contemplated hereby have been duly authorized by all
necessary action on the part of the Purchaser, and no other proceedings
(corporate or otherwise)-on its part are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby and
thereby. This Agreement has been, duly executed and delivered by the
Purchaser and constitutes legal, valid and binding obligations of the
Purchaser enforceable against the Purchaser in accordance with its
terms.
|
|
4.3
|
No
Conflict. The
execution, delivery and performance of this Agreement by the Purchaser or
the consummation of the transactions contemplated hereby do not and will
not:
|
|
|
(a)
|
conflict
with or violate any Applicable Law to the Purchaser
and
|
|
|
(b)
|
conflict
with, or result in a breach of or default under, any terms or conditions
of the by-laws or other organizational documents of the
Purchaser.
|
|
4.4
|
Consents
and Approvals. No consent,
approval, authorization or other action by, or filing with or notification
to, any third party or any governmental, judicial or regulatory authority
on the part of the Purchaser is required for the valid execution and
delivery of this Agreement and the consummation by the Purchaser of the
transactions contemplated hereby.
|
|
4.5
|
Absence
of Litigation. There are no
claims, actions, proceedings (including any workout, Chapter 11 or
bankruptcy proceeding) or investigations pending or threatened against the
Purchaser or any of its Affiliates, or any of its or their assets or
properties, before any court, arbitrator or administrative, governmental
or regulatory authority which seek to delay or prevent the consummation of
the transactions contemplated hereby or which would be reasonably likely
to adversely affect or restrict the Purchaser's ability to consummate the
transactions contemplated hereby.
|
|
4.6
|
Financing.
At Closing, the Purchaser will have all funds necessary to satisfy all of
its obligations hereunder and to consummate the transactions contemplated
by this Agreement on the terms set forth herein, and its ability to
consummate such transactions is not dependent or conditional upon
receiving of financing from any third
party.
|
SECTION 5 - CERTAIN
COVENANTS
|
5.1
|
Taxes. If applicable, any
stamp Taxes (impuesto de
sellos) payable in connection with the execution and delivery of,
and the consummation of the transactions contemplated by this Agreement,
shall be promptly paid by both
parties.
|
|
5.2
|
Conduct
of Business Prior to the Closing. Except as consented to by the
Purchaser or as otherwise contemplated by this Agreement, the Sellers
jointly and severally agree as
follows:
|
11
|
|
(a)
|
From
the date hereof through the Closing Date, each Seller will cause the
Company to (i) preserve substantially intact the business organization of
the Company,
|
|
|
(b)
|
Prior
to the Closing, each Seller will cause the Company to refrain from
amending its organizational or governing documents (except as provided
under in Section
6.3) or merge or consolidate, or obligate itself to do so, with or
into any other entity.
|
|
|
(c)
|
Prior
to the Closing, each Seller will cause the Company to comply with and to
refrain from (i) changing its accounting methods, principles or practices
(other than such changes required by Argentine GAAP or applicable
governmental regulations), (ii) establishing or increasing any bonus,
insurance, severance, deferred compensation, pension, retirement, profit
sharing, stock option (including, without limitation, the granting of
stock options, stock appreciation rights, performance awards, or
restricted stock awards), stock purchase or other employee benefit plan,
or otherwise increasing the compensation payable or to become payable to
any officers or key employees of the Company, or (iii) entering into any
material employment or severance agreement with any of its employees or
establishing, adopting, entering into or amending any collective
bargaining agreement except as may be required by Applicable
Law.
|
|
5.3
|
Due
diligence. Sellers shall
timely deliver to Purchaser all requested information, documentary or
otherwise, as necessary for purposes of conducting a comprehensive due
diligence by Purchaser regarding the Company in relation to this
Agreement. The Sellers shall cause the Company to permit the Purchaser and
its employees, agents, counsel and accountants or other representatives,
between the date hereof and the Closing, without interference to the
ordinary conduct of the business, to have free and unrestricted access
during normal business hours to the premises and personnel of the Company,
to all the books, accounts, records and other data of the Company
(including, without limitation, all corporate, accounting and tax records,
guarantees, agreements, title documentation, surveys, minute books, share
certificate books, tax returns and related correspondence, and financial
statements of the Company) and to the properties and assets of the
Company, and to furnish to Purchaser such financial and operating data and
other information with respect to the business, legal condition,
properties and assets of the Company as Purchaser may from time to time
consider necessary or desirable to enable confirmation of the matters
represented, warranted and covenanted herein. Without limiting the
generality of the foregoing, it is agreed that the accounting
representatives of Purchaser shall be afforded ample opportunity to make a
full investigation of all aspects of the financial affairs of the
Company
|
|
5.4
|
Books
and Records. If after
Closing has taken place and in order properly to prepare documents
required to be filed with governmental or regulatory authorities or its
financial statements, it is necessary that the parties hereto or any
successors be furnished with additional information relating to the
Company and such information is in the possession of another party hereto,
such party agrees to use its reasonable efforts to furnish such
information to such other party, at the cost and expense of the party
being furnished such information.
|
|
5.5
|
Confidentiality. Following the
Closing, each Seller shall maintain, and cause its Affiliates to maintain,
the confidentiality of all confidential information in its possession
relating to or affecting the Company; provided, however, that
the foregoing shall not prohibit any disclosure of such confidential
information which is or becomes publicly available other than as a result
of disclosure by the Sellers or is required by Applicable Law or legal
process or is required or requested by regulatory or other governmental
authorities or stock exchange.
|
12
|
5.6
|
Authorizations;
Consents and Notices. Each party
hereto will use its reasonable efforts to obtain or cause the Company to
obtain all authorizations, consents, orders and approvals of and provide
all requisite notices to all Argentine and foreign governmental or
regulatory authorities and officials that may be or become necessary for
the performance of its obligations under this Agreement and consummation
of the transactions contemplated herein and will cooperate fully with the
other party in promptly seeking to obtain all such
authorizations, consents, orders and approvals. The parties hereto will
not take any action that reasonably can be expected to have the effect of
delaying, impairing or impeding the receipt of any required
authorizations, consents, orders or approvals. The Purchaser and the
Sellers will consult, from time to time, regarding the status of obtaining
all authorizations and consents.
|
|
5.7
|
Mining
Covenants: During the period comprised between Effective Date and
Closing Date, Sellers shall cause the Company
to:
|
|
|
(a)
|
Duties and Obligations
of the Company.
(i) keep the Properties in good standing by the doing and filing,
or payment in lieu thereof, of all necessary assessment work and payment
of all taxes required to be paid and by the doing of all other acts and
things and the making of all other payments required to be made which may
be necessary in that regard; and (ii) conduct all work on or with respect
to the Properties in a careful and minerlike manner and in accordance with
the Applicable Laws of the jurisdiction in which the Properties are
located
|
|
|
(b)
|
Amendment of Category
of Minerals. make all relevant efforts in order to have the
category of mineral as evidenced in the mining files related to the
Properties amended in order to reflect that in such Properties there have
been indications of "lithium" and therefore, the concessions should be
related to First Category of Minerals and not only Second Category of
Minerals.
|
|
|
(c)
|
Access and Exploration
Works. grant to Purchaser the irrevocable right to access the
Properties as form the Effective Date (unless termination of the
Agreement) to conduct exploration works giving Sellers prior written
notice. The right to access the Properties shall also comprise Purchaser’s
officers, agents, employees and independent
contractors
|
|
|
(d)
|
Notices. provide the Purchaser
with copies of all notices and other documents it receives in respect of
the Properties by any Person.
|
SECTION 6 – CONDITIONS TO THE
CLOSING
The
obligation of the Purchaser to pay the Remaining Purchase Price and receive the
Purchased Shares at the Closing shall be subject, exclusively, to the
fulfillment or waiver by the Purchaser prior to or at the Closing Date of the
following conditions:
|
6.1
|
Bring
Down Representations, Warranties and Covenants. Sellers shall
furnish Purchaser with a certificate signed by Sellers, dated as of the
Closing Date confirming the truth and accuracy, in all material respects
of Sellers’ representations and warranties as set out in this Agreement,
on and as of the Closing Date, and that the covenants and agreements of
Sellers to be observed and performed at or before the Closing pursuant to
this Agreement have been duly observed and performed in all material
respects
|
13
|
6.2
|
Delivery
of Closing Documentation. At the
Closing, the Sellers shall deliver to Purchaser the following
documents:
|
|
|
(a)
|
Notices
issued by each Seller in the terms of section 215 of Law n° 19,550 and the
pertinent registration in the shareholders’ registry
book.
|
|
|
(b)
|
Share
Certificates of the Company.
|
|
|
(c)
|
Books,
seals and any other corporate and accounting books or records of the
Company, including but not limited to corporate minute books and stock
ledger books.
|
|
|
(d)
|
Resignations
of the members of the board of directors of the Company, and their
resignations to receive any retribution and severance
payment.
|
|
|
(e)
|
Originals
of all powers of attorney issued.
|
|
|
(f)
|
Any
other relevant documentation
|
|
6.3
|
Amendment
to the Company’s Estatuto.
The Company will have amended its Estatuto and registered
such amendments with the relevant agency in order to be entitled to
perform mining activities in Argentina and therefore be eligible to own
mining rights and mining
properties.
|
|
6.4
|
Transfer
of Mining Properties: The Company shall be the sole and registered
owner of the Properties. For purposes of evidencing such extent, the
Sellers shall furnish Purchaser
with:
|
|
|
(a)
|
an
opinion dated the Closing Date, from counsel for the Sellers in such form
as is satisfactory to Purchaser, such opinion to confirm that as of the
Closing Date the mining claims comprising the Properties have been validly
located and recorded in accordance with all Applicable Laws and the
Company is the sole recorded and beneficial owner of the Properties,
and
|
|
|
(b)
|
a
certificate issued by the Mining Authorities evidencing that the
Properties are in good standing, have been registered in favour of Lacus,
compliy with all mining obligations (“regimen xx xxxxxx”) and
are free and clear of all Liens, charges, and
encumbrances
|
|
6.5
|
Category
of Minerals. Sellers shall
provide Purchaser with sufficient evidence that Sellers have complied with
the covenant set forth in Section
5.7(b) hereof.
|
|
6.6
|
Satisfaction
with Due Diligence. Purchaser shall have completed due diligence to
its full satisfaction.
|
|
6.7
|
Closing
of Master Option Agreement. Closing under the Master Option
Agreement, in the terms set forth in Section
12 thereof.
|
|
6.8
|
Bring
Down Representations and Warranties by Purchasers. Purchaser
shall furnish the Sellers with a certificate signed by Purchaser, dated as
of the Closing Date confirming the truth and accuracy, in all material
respects of Purchaser’ representations and warranties as set out in this
Agreement, on and as of the Closing
Date.
|
|
6.9
|
Non-Performance
of Conditions. In the event that any of the conditions
set forth in this Section
6 of this Agreement shall not be fulfilled and/or performed at or
before the Closing Time, the defaulting Party will be subject to a daily
penalty of US$1,000.00.
|
14
Notwithstanding
the foregoing, the non-defaulting Party may terminate this Agreement by notice
in writing to the defaulting Party and the non-defaulting Party shall thereupon
be released from all obligations under this Agreement, and the non-defaulting
Party may refer the matter to arbitration pursuant to Section
8.4,
seeking such relief as it may deem appropriate.
Notwithstanding
the foregoing, in the event the Sellers are the defaulting Party, the Sellers
shall also immediately refund Purchaser the Initial Purchase Price paid pursuant
to Section
2.1(a)
hereunder, in immediately available funds, by wire transfer to the account
indicated in writing by Purchaser.
SECTION 7 –
INDEMNIFICATION
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7.1
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Indemnification
by Sellers.
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(a)
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Each
Seller shall severally (and not jointly with any other Seller) from time
to time indemnify, defend and hold harmless the Purchaser from and after
the Closing Date from and against any and all losses, payments (whether in
cash or in kind), claims, damages liabilities, obligations, penalties,
judgments, awards, costs, expenses, interest and disbursements (and any
and all actions), suits, proceedings and investigation in respect thereof,
any amounts (whether in cash or in kind) in settlement in respect of any
of the foregoing and any and all legal and other costs, expenses or
disbursements in giving testimony or furnishing documents in response to a
subpoena or otherwise), including without limitation, the costs, expenses
and disbursements as and when incurred, of investigating, preparing or
defending any such action, suit, proceeding or investigation, whether or
not in connection with litigation in which the Purchaser is a party
(hereinafter collectively referred to as "Losses"),
caused by, relating to, based upon, arising out of or in connection with
the material breach of any (x) representation or warranty of such Seller
contained in Section
3 which results in a Material Adverse Change, or (y) covenant or
agreement of such Seller pursuant to this
Agreement.
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(b)
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In
the event and to the extent that a Loss occurs in or with respect to or
relating to the Company and as a result thereof, the Company is required
to make a payment (whether in cash or in kind), the amount of such Loss
for which Sellers shall indemnify the Purchaser shall, be equal to such
net amount.
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7.2
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Indemnification
Procedures; Third Party Claims. The Purchaser
shall give Sellers prompt written notice of any claim, assertion, event or
proceeding by or in respect of a third party concerning any liability or
damage as to which it may request indemnification from Sellers hereunder;
provided,
however,
that any failure by the Purchaser to notify Sellers shall not relieve
Sellers from its obligations hereunder except to the extent Sellers is
materially prejudiced in connection with such claim by such failure and
shall not relieve Sellers from any other obligation or liability that it
may have to the Purchaser otherwise than under this Section
7. Upon written notice to the Purchaser given by Sellers after
receipt of notice of any such action or proceeding, Sellers may assume the
defense thereof at its own expense with counsel chosen by Sellers which
counsel shall be acceptable to the Purchaser. In addition, with respect to
any action, suit, proceeding or investigation to which the Purchaser is
also a party, the Purchaser may participate in the defense thereof with
counsel chosen by the Purchaser at the expense of the Purchaser. Purchaser
shall cooperate with Sellers in all matters in connection with the defense
in which its consent is required. Sellers shall be liable for any
settlement of any claim against the Purchaser made with Sellers' written
consent, which consent shall not be unreasonably withheld. Sellers shall
not, without the prior written consent of the Purchaser settle or
compromise any claim unless such settlement or compromise includes, as an
unconditional term thereof, the giving by the claimant to the Purchaser of
an unconditional release from all liability in respect of such
claim.
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7.3
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Indemnification
by the Purchaser. The Purchaser shall indemnify, defend and hold
harmless Sellers from and after the Closing from and against any and all
Losses caused by, relating to, based upon, arising out of or in connection
with the breach of any representation, warranty, covenant or agreement of
the Purchaser pursuant to this
Agreement.
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SECTION 8 –
MISCELLANEOUS
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8.1
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Survival
of Representations and Warranties: Severability. All
representations and warranties made by any party contained in this
Agreement, any Schedule or certificate delivered pursuant hereto or made
in writing by or on behalf of a party in connection with the transactions
contemplated by this Agreement shall survive the Closing Date and remain
in full force and effect for one year following the Closing, except that
the representations and warranties set forth in Section
3.10 shall survive until the expiration of the applicable statute
of limitations; provided, however, that
the indemnification obligations of each of the parties with respect to
such matters shall not terminate with respect to any matter as to which
the party entitled to indemnification hereunder shall have made a claim
prior to the time such representations and warranties shall have ceased to
survive by delivering written notice thereof to the other party pursuant
to the provisions set forth in Section
8.4(a) of this Agreement. All statements contained in any Schedule,
certificate or other instrument delivered by a party pursuant to this
Agreement or in connection with the transactions contemplated by this
Agreement shall be deemed representations and warranties under this
Agreement.
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8.2
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Waivers
and Amendments. This Agreement may only be modified with written
consent of the parties hereto. Neither this Agreement nor any provision
hereof may be changed, waived, discharged or terminated orally, but only
by a statement in writing signed by the party against which enforcement of
the change, waiver, discharge or termination is
sought.
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8.3
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Notices.
etc. Except as
otherwise provided in this Agreement, all notices and other communications
pursuant to this Agreement shall be in writing and shall be delivered in
person, by courier, or by certified airmail (postage prepaid, return
receipt requested). All such notices shall be sent to the facsimile number
or address (as the case may be) specified for the intended recipient in
Schedule
8.3, or to such other number or address as such recipient may have
last specified by notice to the other parties. All such notices shall be
effective upon receipt.
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8.4
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Dispute
Resolution
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(a)
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In
the event of any dispute, controversy or claim arising out of or relating
to this Agreement (including any provision of any Schedule thereto) or the
breach, termination or validity thereof ("Dispute"),
upon the written request (a "Request")
of any party to this Agreement, the matter shall immediately be referred
to senior officers of each Party for resolution. The senior officers shall
meet immediately and attempt in good faith to negotiate a resolution of
the Dispute.
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(b)
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If
the parties are unable to resolve the Dispute within 10 days after receipt
of a Request, then any Party may submit the Dispute to arbitration as the
exclusive means of the resolving it in accordance with the rules of the
General Arbitration Tribunal of the Bolsa de Comercio de la Ciudad
de Buenos Aires, Republic of Argentina – whose award shall be
unique and non appealable – pursuant to the standing regulations for legal
arbitration (as approved by Resolution No.000052/93 of the General
Inspection of Corporations of the Republic of Argentina) which the Parties
represent to known and accept
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8.5
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GOVERNING
LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
ARGENTINA.
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8.6
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Successors
and Assigns, etc.
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(a)
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This
Agreement shall be binding upon the parties and their respective
successors and shall not be assignable by any party hereto, except that
the Purchaser may assign its rights under this Agreement (including but
not limited to the right to acquire the Purchased Shares) in whole or in
part to one or more wholly owned subsidiaries of the Purchaser which shall
agree to be bound by all the provisions hereof; provided. however, the
Purchaser shall remain liable for the full payment in cash of the purchase
price in respect of the Purchased
Shares.
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(b)
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Nothing
in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and
permitted assigns any rights, remedies, obligations or liabilities under
or by reason of this Agreement.
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8.7
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Spousal
Consents.
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(a)
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Claudio
Xxxxxxx Xxxxxxxxx, an Argentine individual, birth date November 13th,
1959, ID Nbr. 13,433,000, domiciled at Doblas 406 2º “A”, Buenos Aires
City, Argentina, married to Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxx, in
accordance with the provisions of Section 1277 of the Argentine Civil
Code, hereby irrevocably consents (i) the content of this Agreement; and
(ii) the transfer of the Purchased Shares that are owned by
Xxxxxxx.
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(b)
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Marbeglys
Xxxxxxxx Xxxxxx, an individual, birth date July 3rd,
1973, Venezuelan Passport Nbr. D 0657969, domiciled at
Xxxxxxxxx 0000 0x Xxxxx, Xxxxxx Xxxxx Xxxx, Xxxxxxxxx, married to Xxxxxx
Xxxxx Xxxxxx, in accordance with the provisions of Section 1277 of the
Argentine Civil Code, hereby irrevocably consents (i) the content of this
Agreement; and (ii) the transfer of the Purchased Shares that are owned by
Xxxxxx.
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(c)
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Consent
referred in Section
8.7(a) and 8.7(b)
above, shall also be stamped and granted on the documents mentioned in
Section
6.1 and 6.2(a)
hereto.
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8.8
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Entire
Agreement. This
Agreement, its Schedules and the other documents delivered pursuant
hereto, constitute the entire understanding of the parties with respect to
the matter hereof, and supersede all prior understandings, agreements and
negotiations of the parties with respect to such
matters.
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8.9
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Severability. In the event
that any one or more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the parties shall negotiate
in good faith with a view to the substitution therefor of a suitable and
equitable solution in order to carry out, so far as may be valid and
enforceable, the intend and purpose of such invalid provision; provided. however, that
the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not
be in any way impaired thereby, it being intended that all of the rights
and privileges of the parties hereto shall be enforceable to the fullest
extent permitted by Applicable Law.
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8.10
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Titles
and Subtitles. The titles of the paragraphs and subparagraphs of
this Agreement are for convenience of reference only and are not to be
considered in construing this
Agreement.
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8.11
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Delays
or Omissions. No delay or
omission to exercise any right, power or remedy on the part of any party
upon any breach or default of any party to this Agreement shall impair any
such right, power or remedy, nor shall it be construed to be a waiver of
any such breach or default, or any acquiescence therein, or of any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a wavier of any of the breach or default
theretofore or thereafter occurring. In addition, any waiver, permit,
consent or approval of any kind or character on any party of any breach or
default under this Agreement must be in writing and shall be effective
only to the extent specifically set forth in such writing and all remedies
either under this Agreement, or by Applicable Law otherwise afforded to
any party, shall be cumulative and not
alternative.
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8.12
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Expenses. Except as
specifically provided otherwise in this Agreement, each party shall bear
its own costs and expenses in connection with the transactions
contemplated hereby, whether or not such transactions are
consummated.
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8.13
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Disclosure
Supplements. Prior to the
Closing, Sellers shall supplement or amend the Schedules to this Agreement
with respect to any matter (a) which may arise hereafter and which, it
existing or occurring at or prior to the date hereof, would have be
required to be set forth or described in the Schedules to this Agreement
or (b) which makes it necessary to correct any information in the
Schedules to this Agreement or in any representation and warranty of the
parties herein.
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8.14
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Future
Performance. Without in
any way reducing or relieving Sellers of any of its obligations under this
Agreement or otherwise and without in any way waiving any of the rights of
the Purchaser, the parties acknowledge that it is not their intention that
Sellers guarantee in any manner the prospects, future performance or
financial results of the
Company.
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XXXXXXXX
X
SAMPLE OF
ACCEPTANCE LETTER
[LI3
ENERGY INC’S LETTERHEAD]
March
[__], 2010
XXXXXXX
XXXXXX XXXXXXX XXXXXXX
XXXXXX
XXXXX XXXXXX
Reconquista
1016 0xx.
Xxxxx
X0000XXX
Xxxxxx Xxxxx
Xxxxxxxxx
Re:
ACCEPTANCE
LETTER
Dear
Sir,
We hereby
fully accept your SHARE
PURCHASE AGREEMENT OFFER sent through the letter dated March [__],
2010.
Yours
Sincerely,
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Per:
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Name:
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Title:
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I
have the authority to bind the Corporation
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