EXHIBIT 10.8
GREAT BASIN GOLD LTD.
(the "Purchaser")
x/x Xxxxx 0000, Xxxxx Xxxxxx
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
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March 2, 1999
To: Touchstone Resources Company (the "Company")
Cornucopia Resources Ltd. (the "Vendor")
Suite 540 Marine Building
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
ATTENTION: BOARD OF DIRECTORS
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Dear Sirs/Mesdames:
AGREEMENT TO PURCHASE ALL OF THE SHARES OF TOUCHSTONE RESOURCES COMPANY (THE
"COMPANY") FROM CORNUCOPIA RESOURCES LTD. (THE "VENDOR") BY GREAT BASIN GOLD
LTD. . (THE "PURCHASER")
This letter will confirm our agreement (herein the "AGREEMENT") for the
acquisition by the Purchaser from the Vendor of all of issued and outstanding
shares (each a "PURCHASED SHARE") of the Company.
The Company is a body corporate subsisting under and registered pursuant to
the laws of the State of Nevada and its only business is operating its 25%
working interest (the "JV INTEREST") in the Ivanhoe joint venture pursuant to
the Venture Agreement dated August 13, 1997, (collectively, the "COMPANY'S
BUSINESS").
The following are schedules which are attached to and form a part of this
Agreement:
(a) Schedule A - the Company's financial statements as of December 31,
1998 together with certain other financial information; and
(b) Schedule B - a complete list of the Company's assets and
liabilities and material agreements (to be updated as of the Closing
Date as defined in Article 5).
In connection with the foregoing, therefore, the undersigned hereby
acknowledge and agree that:
ARTICLE 1
PURCHASE AND SALE OF THE ALL OF THE PURCHASED SHARES
Purchase and Sale
1.1 Subject to the terms and conditions hereof and based upon the
mutual representations, warranties, terms and conditions herein contained and
the prior satisfaction or waiver of the conditions precedent which are set
forth in Article 4 hereinbelow, the Vendor agrees to assign, sell and
transfer at the closing date more particularly described in Article 5 (the
"CLOSING DATE") 100% of all right, title and interest in and to the Purchased
Shares to the Purchaser and the Purchaser agrees to purchase all of the
Purchased Shares from the Vendor.
Purchase Price
1.2 The total purchase price (the "PURCHASE CONSIDERATION") for all of
the Purchased Shares shall be paid by the Purchaser's allotment and issuance
to the Vendor of 2,750,000 common shares without par value in its capital
stock (the "Shares") having an agreed value of $1.25 each plus the allotment
and issuance of 250,000 one-year share purchase warrants (the "Warrants")
each Warrant exercisable at $2.00 to acquire a further common share ("Warrant
Shares") of the Purchaser with each Warrant having an agreed value of $0.01.
The Purchase Consideration shall be issued at Closing and shall be issued as
fully paid and non-assessable. The Warrants are non-transferable except with
the consent of the Company, in its sole discretion.
CONTRACTUAL RESALE RESTRICTIONS AND CALL RIGHTS
1.3 (a) The Vendor agrees that notwithstanding any statutory or regulatory
provision permitting earlier resale, none of the Shares nor any Warrant
Shares (collectively the "Offered Shares") may be sold, transferred or
otherwise disposed of by the Vendor for 180 calendar days after the
Closing (the "Prohibition Period") without the Purchaser's prior written
consent, such consent to be in the Purchaser's sole discretion. After
the Prohibition Period, the Vendor may not sell, transfer or otherwise
dispose of any of the Offered Shares except as provided in Section
1.3(b), Section 1.3(c) and Section 1.4.
(b) After the expiry of the Prohibition Period, the Vendor may, without
restriction or notice to the Purchaser, sell up to 25,000 of the Offered
Shares in any 30 calendar day period (the "25,000 Share Entitlement"). If
the Vendor has not sold any Offered Shares in any 30 calendar day period
after the Prohibition Period, the 25,000 Share Entitlement applicable to
that period may be carried forward to the next 30 calendar day period and
thereafter, for up to four such periods so that, the Vendor may sell up to
100,000 Offered Shares without restriction or notice to the Purchaser
during the last 30 calendar days of a 120 calendar day period.
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(c) Notwithstanding the provisions of Section 1.3(b), after the
Prohibition Period the Vendor may sell more than 25,000 and up to
100,000 Offered Shares in any 30 calendar day period providing that at
least fifteen days before the commencement of that period, the Vendor
has given notice of such intention to the Purchaser and the Purchaser
has not availed itself of a first right to cause the Offered Shares to
be bought by a designated person (the "Placement Right"). The Placement
Right herein granted requires that upon receipt of a 15 day notice of
proposed sale (the "Offer Notice") the Purchaser may require that the
Offered Shares proposed to be sold by the Vendor be sold to a buyer
designated by the Purchaser with the closing of such purchase and sale
to occur within 15 calendar days of the Purchaser's response to the
Offer Notice. The purchase price for the Offered Shares shall be the
five-day average closing price of the Purchaser's shares on the five
trading days before the date of the Offer Notice less a 10% discount.
If the Purchaser does not exercise the Placement Right by responding to
the Offer Notice by the 15th day after receipt (or responds to the Offer
Notice by declining to purchase thereunder (a "Rejection Notice"), the
Vendor may sell the Offered Shares in the Offer Notice by private sale
or stock market transaction in the Vendor's sole discretion during the
45 days after the earlier of the 15th day after the delivery of the
Offer Notice and the day of delivery of the Rejection Notice.
1.4 The Purchaser is hereby also granted an assignable call right (the
"Call") on all shares in the capital of the Purchaser owned from time to time
by the Vendor (including without limitation any Offered Shares, shares of the
Purchaser acquired pursuant to the provisions of section 1.8 hereof or any
other shares of the Purchaser acquired by the Vendor) in excess of 2,000,000
(calculated for these purposes as fully diluted, i.e. counting any potential
Warrant Shares as if already issued if on the date of the Call Notice the
5-day average closing price of the shares of the Purchaser is greater than
the exercise price of the Warrants). The term of the Call shall commence on
Closing and continue for the earlier of the 36 months thereafter and the date
the Vendor holds fewer than 2,000,000 shares in the capital of the Purchaser,
fully diluted. The Call may be exercised by the Purchaser, or its designee,
in whole or in part and from time to time. In order to exercise the Call,
the Purchaser, or its designee or assignee, shall give notice (the "Call
Notice") to the Vendor confirming the number of Shares to be purchased (the
"Called Shares") and confirming the exercise price which shall be the 5-day
average closing price calculated to the trading day before the notice is
given plus 10% (the "Call Price"). In no event will the Call Price be less
than $1.00 per share. The closing time of the purchase and sale of the
Called Shares shall be specified in the date of notice given for a date which
is within 10 business days of the date of notice and such closing shall occur
at the offices of the Purchaser's solicitors in Vancouver. At closing,
certified funds equal to the Call Price shall be paid to the Vendor and the
Vendor shall deliver against payment therefor, share certificates
representing the Called Shares duly endorsed for transfer to the named buyer
with all necessary signature guarantees, powers of attorney and corporate
resolutions respecting authority to execute documents in relation to the
transfer of the Called Shares. The buyer shall be entitled to have a
confirmation from the registrar and transfer agent of the Purchaser
confirming that the Called Shares so delivered constitute good delivery
(subject always to restrictions on transfer that are imposed by applicable
securities laws on such shares upon issue, the terms hereof and securities
laws of
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general application) and that the Called Shares can be immediately cancelled
and re-registered in the name of the buyer or nominee.
1.5 In the event that within 10 trading days after the completion of
the purchase and sale contemplated by Section 1.4 hereof, the Called Shares
would have had a 5 day average closing price equal to or greater than 115% of
the Call Price ("Trigger Price") then the designated buyer, or failing which
the Purchaser, shall pay an additional cash amount to the Vendor equal to
one-half of the difference between the Trigger Price and the Call Price.
Alternatively in lieu of a cash payment the buyer or Purchaser shall return
to the Vendor in transferable form, free and clear of encumbrances, a number
of the Shares purchased sufficient to raise the average purchase price of the
Called Shares retained to the Trigger Price.
THE JV INTEREST
1.6 The parties acknowledge that the Company has as of the date hereof
agreed that it shall not participate in the first two programs approved by
the Management Committee of the Ivanhoe Joint Venture in particular the
$1,500,000 drill program and the 2/3 of $317,000 (US) reclamation programs
adopted on February 17, 1999. This waiver is made outside of this Agreement
and remains effective whether or not the transactions contemplated hereunder
consummate.
VOTING THE SHARES, VENDOR'S REPRESENTATION ON PURCHASER'S BOARD
1.7 For the first 2 years from Closing, the Vendor agrees to vote the
Shares and any Warrant Shares at any of the Purchaser's shareholders'
meetings in favour of those items and resolutions respecting which the
Purchaser's Board has requested or recommended that shareholders vote in
favour. The Purchaser agrees that upon Closing and for the same two year
period a legally eligible nominee of the Vendor shall be appointed to the
Purchaser's Board and shall be renominated for a Board directorship at each
meeting of the Purchaser's shareholders convened in such two year period.
VENDOR'S PRO RATA RIGHT
1.8 During a period equal to the lesser of the two years of the voting
agreement above, or so long as the Vendor still holds at least 1,500,000 of
the Shares, the Purchaser shall, in the event it proposes to offer common
shares for cash from its treasury ("Treasury Shares"), permit the Vendor to
subscribe for its then pro rata portion of Treasury Shares proposed to be
sold calculated as Vendor's Shares plus all potential Warrant Shares divided
by Purchaser's then fully diluted outstanding common shares. Upon the
Vendor's second election not to take up its pro rata share the right granted
by this Section 1.8 shall cease. The right granted hereby does not apply to
Purchaser's treasury issuances for incentive options, property acquisitions
(except to the extent they include a cash component) and all common shares
issued for dilutive securities outstanding at the date hereof. The Vendor
shall have the obligation to complete any subscription on materially the same
terms as the third party subscribers and the Vendor must elect to participate
in such issuance in writing within 10 days of receipt notice of the offering.
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ARTICLE 2
WARRANTIES, REPRESENTATIONS AND COVENANTS
BY THE COMPANY AND THE VENDOR
WARRANTIES, REPRESENTATIONS AND COVENANTS BY THE COMPANY AND THE VENDOR
2.1 In order to induce the Purchaser to enter into this Agreement and
consummate the purchase and sale of the Purchased Shares each of the Company
and the Vendor hereby warrant to, represent to and covenant with the
Purchaser that now and as at the Closing Date, that:
(a) the Company is duly incorporated under the laws of Nevada, is validly
existing and is in good standing with respect to all statutory filings
required by the applicable corporate laws;
(b) the Company has the requisite power, authority and capacity to own and
use all of its business assets and to carry on the Company's Business as
presently conducted by it;
(c) the Company owns and possesses and has good and marketable title to
its JV Interest and all of its other mineral claims and assets free and
clear of all actual or threatened liens, charges, options, encumbrances,
voting agreements, voting trusts, demands, limitations and restrictions of
any nature whatsoever;
(d) the Company holds all licenses and permits required for the conduct in
the ordinary course of the operations of the Company's Business and for the
uses to which its business assets have been put and neither the execution
and delivery of this Agreement nor the completion of the transactions
contemplated hereby will give any person the right to terminate or cancel
any right or interest held by the Company;
(e) there are at present no other shares in the capital of the Company
issued or allotted or agreed to be issued or allotted to any person and the
authorized and issued share capital of the Company is 1,000 common shares
with a par value of $1.00 per share of which 100 common shares are issued
and outstanding and registered in the name of the Vendor;
(f) the Vendor has good and marketable title to and is the sole legal and
beneficial owner of all of the Purchased Shares free and clear of liens,
bank security interests or other encumbrances of any kind or nature;
(g) the Purchased Shares are validly issued and outstanding and fully paid
and non-assessable in the capital of the Company, and the Purchased Shares
are free and clear of all actual or threatened liens, charges, options,
encumbrances, voting agreements, voting trusts, demands, limitations and
restrictions of any nature whatsoever;
(h) there are no restrictions of any nature whatsoever affecting the right
of the Vendor to transfer the Purchased Shares to the Purchaser;
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(i) the Vendor has the power and capacity to own and dispose of the
Purchased Shares;
(j) this Agreement constitutes a legal, valid and binding obligation of
each of the Company and the Vendor, enforceable against each of the Company
and the Vendor in accordance with its respective terms, except as
enforcement may be limited by laws of general application affecting the
rights of creditors;
(k) the Company has not and has not committed itself to provide any
person, firm or corporation with any agreement, option or right, consensual
or arising by law, present or future, contingent or absolute, or capable of
becoming an agreement, option or right:
(i) to require it to issue any further or other shares in its
share capital, or any other security convertible or exchangeable
into shares in its share capital, or to convert or exchange any
securities into or for shares in its share capital;
(ii) for the issue and allotment of any of the authorized but
unissued shares in its share capital;
(iii) to require it to purchase, redeem or otherwise acquire
any of the issued and outstanding shares in its share capital; or
(iv) to purchase or otherwise acquire any shares in its share
capital;
(l) no other person, firm or corporation has any agreement, option or
right capable of becoming an agreement for the purchase of any of the
Purchased Shares;
(m) save and except as may be set forth on the Schedules hereto, there
are no material liabilities, contingent or otherwise, existing on the
date hereof in respect of which either of the Company may be liable on
or after the completion of the transactions contemplated by this
Agreement other than:
(i) liabilities disclosed or referred to in this Agreement;
and
(ii) liabilities incurred in the ordinary course of the
Company's Business, none of which are materially adverse to the
business, operations, affairs or financial conditions of the
Company;
(n) no dividend or other distribution by the Company will be declared,
paid or authorized up to and including the Closing Date, and the Company
has not and has not committed itself to confer upon, or pay to or to the
benefit of, any entity, any benefit having monetary value, any bonus or any
salary;
(o) there is no basis for and there are no actions, suits, judgments,
investigations or proceedings outstanding or pending or, to the best of the
knowledge, information and belief of each of the Company and the Vendor,
after making due inquiry, threatened
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against or affecting the Company at law or in equity or before or by any
federal, state, municipal or other governmental department, commission,
board, bureau or agency;
(p) the Company is not in breach of any laws, ordinances, statutes,
regulations, by-laws, orders or decrees to which it is subject or which
apply to it;
(q) the Company has not experienced, nor are the Company and the Vendor
aware of, any occurrence or event which has had, or might reasonably be
expected to have, a materially adverse affect on the Company's Business;
(r) the Company is not, nor until or at the Closing Date will it be, in
breach of any provision or condition of, nor has it done or omitted
anything that, with or without the giving of notice or lapse or both, would
constitute a breach of any provision or condition of, or give rise to any
right to terminate or cancel or accelerate the maturity of any payment
under, any deed of trust, contract, certificate, consent, permit, license
or other instrument to which it is a party, by which it is bound or from
which it derives benefit, any judgment, decree, order, rule or regulation
of any court or governmental authority to which it is subject, or any
statute or regulation applicable to it, to an extent that, in the
aggregate, has a material adverse affect on it;
(s) the Company has not committed to making and until the Closing Date
will not make or commit itself to:
(i) guarantee, or agree to guarantee, any indebtedness or
other obligation of any person or corporation; or
(ii) waive or surrender any right of material value;
(t) until the Closing Date the Company will:
(i) maintain its assets in a manner consistent with and in
compliance with applicable law; and
(ii) not enter into any material transaction or assume or
incur any material liability outside the normal course of its
business;
(u) the Vendor acknowledges that the Shares will be issued, and reserved
for issuance where applicable, under certain exemptions from the
registration and prospectus filing requirements otherwise applicable under
the Securities Act, and that, as a result, the Vendor may be restricted
from using most of the remedies that would otherwise be available to it and
will not receive information that would otherwise be required to be
provided to it, and the Purchaser is relieved from certain obligations that
would otherwise apply to it, in either case, under applicable securities
legislation;
(v) the Vendor acknowledges and agrees that the Shares have not been and
will not be qualified or registered under the securities laws of the
Province of British Columbia or
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under any federal or state laws of the United States and, as such, the
Vendor may be restricted from selling or transferring such Shares under
applicable law and by terms of this Agreement; and
(w) the making of this Agreement, the completion of the transactions
contemplated hereby and the performance of and compliance with the terms
hereof does not and will not:
(i) conflict with or result in a breach of or violate any of
the terms, conditions or provisions of the incorporation documents
of the Company or the Vendor;
(ii) conflict with or result in a breach of or violate any of
the terms, conditions or provisions of any law, judgment, order,
injunction, decree, regulation or ruling of any court or
governmental authority, domestic or foreign, to which either the
Company or the Vendor are subject, or constitute or result in a
default under any agreement, contract or commitment to which either
the Company or the Vendor are a party;
(iii) give to any party the right of termination, cancellation
or acceleration in or with respect to any agreement, contract or
commitment to which the Company is a party;
(iv) give to any government or governmental authority, or any
municipality or any subdivision thereof, including any governmental
department, commission, bureau, board or administration agency, any
right of termination, cancellation or suspension of, or constitute
a breach of or result in a default under, any permit, license,
control or authority issued to the Company which is necessary or
desirable in connection with the conduct and operations of the
Company's Business and the ownership or leasing of its business
assets; or
(v) constitute a default by the Company, or any event which,
with the giving of notice or lapse of time or both, might
constitute an event of default, under any agreement, contract,
indenture or other instrument relating to any indebtedness of the
Company which would give any party to that agreement, contract,
indenture or other instrument the right to accelerate the maturity
for the payment of any amount payable under that agreement,
contract, indenture or other instrument;
(x) the financial statements attached as Schedule "A" hereto are true and
complete and consistent with generally accepted accounting principles
consistently applied;
(y) the Company has filed all U.S. tax returns for previous years and has
not received any notice of objection or reassessment;
(z) the Vendor covenants to promptly seek the approval of its shareholders
for the consummation of the transactions herein and shall recommend to its
shareholders that they vote in favour of these transactions. The Vendor
also covenants to promptly seek
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the approval of any regulatory authority where such approval can be
reasonably seen to be necessary or desirable to consummate the
transaction herein;
(aa) the Company is not indebted to the Vendor for any amount
whatsoever; and
(bb) on or before the Closing, the Company shall complete the
transactions set out in the footnote to Schedule B in a manner that
is satisfactory to the Purchaser so that the Company's only asset
will be the 25% working interest in the Ivanhoe Project and its tax
pools and the Company will have no liabilities whatsoever;
ARTICLE 3
WARRANTIES, REPRESENTATIONS AND COVENANTS BY THE PURCHASER
WARRANTIES, REPRESENTATIONS AND COVENANTS BY THE PURCHASER
3.1 In order to induce each of the Company and the Vendor to enter into
this Agreement, the Purchaser hereby represents to and covenants with each of
the Company and the Vendor that:
(a) the Purchaser is a corporation duly incorporated under the laws of the
Province of British Columbia, is validly existing and is in good standing
with respect to all statutory filings required by the COMPANY ACT (British
Columbia);
(b) the Purchaser has the requisite power, authority and capacity to own
and use all of its business assets and to carry on its business as
presently conducted by it;
(c) the Purchaser owns and possesses and has good and marketable title to
and possession of all of its business assets free and clear of all actual
or threatened liens, charges, options, encumbrances, voting agreements,
voting trusts, demands, limitations and restrictions of any nature
whatsoever;
(d) the Purchaser holds all licenses and permits required for the conduct
in the ordinary course of the operations of its business and for the uses
to which its business assets have been put and are in good standing, and
such conduct and uses are in compliance with all laws, zoning and other
by-laws, building and other restrictions, rules, regulations and ordinances
applicable to the Purchaser, and neither the execution and delivery of this
Agreement nor the completion of the transactions contemplated hereby will
give any person the right to terminate or cancel any said license or permit
or affect such compliance;
(e) the authorized capital of the Purchaser consists of 100,000,000 common
shares without par value of which, according to the records of the
Purchaser, 16,918,271 common shares are issued and outstanding as fully
paid and non-assessable (21,764,671 fully diluted);
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(f) all of the issued and outstanding shares of the Purchaser are listed
and posted for trading on the Vancouver Stock Exchange ("VSE"), and the
Purchaser is not in material default of any of the terms and conditions of
its listing agreement with the VSE or of any of the rules and policies of
the VSE;
(g) the Purchaser will allot and issue the Shares and Warrants to the
Vendor on the Closing Date as fully paid and non-assessable in the capital
of the Purchaser free and clear of all actual or threatened liens, charges,
options, encumbrances, voting agreements, voting trusts, demands,
limitations and restrictions of any nature whatsoever, other than hold
periods or other restrictions imposed under applicable securities
legislation or by securities regulatory authorities, including the VSE or
this Agreement;
(h) up to and including the Closing Date the Purchaser will not commit
itself to:
(i) redeem or acquire any shares in its share capital;
(ii) declare or pay any dividend;
(iii) make any reduction in or otherwise make any payment on
account of its paid-up capital; or
(iv) effect any subdivision, consolidation or reclassification
of any of its share capital;
(i) up to and including the Closing Date the Purchaser will not commit
itself to:
(i) acquire or have the use of any property from a person,
corporation or entity with whom it was not dealing with at arm's
length; or
(ii) dispose of anything to a person, corporation or entity
with whom it was not dealing with at arm's length for proceeds less
than the fair market value thereof;
(j) there are no material liabilities, contingent or otherwise, existing
on the date hereof in respect of which the Purchaser may be liable on or
after the completion of the transactions contemplated by this Agreement
other than:
(i) liabilities disclosed or referred to in this Agreement or
in the public record; and
(ii) liabilities incurred in the ordinary course of business,
none of which are materially adverse to the business, operations,
affairs or financial conditions of the Purchaser;
(k) no dividend or other distribution by the Purchaser has been made,
declared or authorized since its incorporation, nor will any be declared,
paid or authorized up to and including the Closing Date, and the Purchaser
will not commit itself to confer upon, or
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pay to or to the benefit of, any entity, any benefit having monetary
value, any bonus or any salary increases except in the normal course of
its business;
(l) there is no basis for and there are no actions, suits, judgments,
investigations or proceedings outstanding or pending or, to the best of the
knowledge, information and belief of the Purchaser, after making due
inquiry, threatened against or affecting the Purchaser at law or in equity
or before or by any federal, state, municipal or other governmental
department, commission, board, bureau or agency;
(m) the Purchaser is not in material breach of any laws, ordinances,
statutes, regulations, by-laws, orders or decrees to which it is subject or
which apply to it;
(n) the Purchaser has not experienced, nor is the Purchaser aware of,
any occurrence or event which has had, or might reasonably be expected to
have, a materially adverse affect on the Purchaser's business or on the
results of its operations;
(o) up to and including the Closing Date there has been and will be
prepared and filed on a timely basis all Canadian Federal and Provincial
income tax returns, elections and designations, and all other governmental
returns, notices and reports of which the Purchaser had or ought reasonably
to have had knowledge, required to be or reasonably capable of being filed
up to the Closing Date, with respect to the operations of the Purchaser,
and no such returns, elections, designations, notices or reports contain
any material misstatement or omit any material statement that should have
been included, and each such return, election, designation, notice or
report, including accompanying schedules and statements, is true, correct
and complete in all material respects;
(p) the Purchaser is not, nor until or at the Closing Date will it be,
in breach of any provision or condition of, nor has it done or omitted
anything that, with or without the giving of notice or lapse or both, would
constitute a breach of any provision or condition of, or give rise to any
right to terminate or cancel or accelerate the maturity of any payment
under, any deed of trust, contract, certificate, consent, permit, license
or other instrument to which it is a party, by which it is bound or from
which it derives benefit, any judgment, decree, order, rule or regulation
of any court or governmental authority to which it is subject, or any
statute or regulation applicable to it, to an extent that, in the
aggregate, has a material adverse affect on it;
(q) no payments of any kind have been made or authorized by or on behalf
of the Purchaser to or on behalf of directors, officers, shareholders or
employees of the Purchaser or under any management agreements with the
Purchaser other than in the ordinary course of business;
(r) none of directors, officers or employees of the Purchaser are now
indebted or under obligation to the Purchaser on any account whatsoever,
other than in the ordinary course of business;
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(s) the Purchaser has not committed to making and until the Closing Date
will not make or commit itself to:
(i) guarantee, or agree to guarantee, any indebtedness or
other obligation of any person or corporation; or
(ii) waive or surrender any right of material value;
(t) the shares in the capital of the Purchaser are not subject to or
affected by any actual or, to the best of the knowledge, information and
belief of the Purchaser, after making due inquiry, pending or threatened
cease trading, compliance or denial of use of exemptions orders of, or
action, investigation or proceeding by or before, any securities regulatory
authority, court, administrative agency or other tribunal; and
(u) the making of this Agreement, the completion of the transactions
contemplated hereby and the performance of and compliance with the terms
hereof does not and will not:
(i) conflict with or result in a breach of or violate any of
the terms, conditions or provisions of the incorporation documents
of the Purchaser;
(ii) conflict with or result in a breach of or violate any of
the terms, conditions or provisions of any law, judgment, order,
injunction, decree, regulation or ruling of any court or
governmental authority, domestic or foreign, to which the Purchaser
is subject, or constitute or result in a default under any
agreement, contract or commitment to which the Purchaser is a party;
(iii) give to any party the right of termination, cancellation
or acceleration in or with respect to any agreement, contract or
commitment to which the Purchaser is a party;
(iv) give to any government or governmental authority, or any
municipality or any subdivision thereof, including any governmental
department, commission, bureau, board or administration agency, any
right of termination, cancellation or suspension of, or constitute
a breach of or result in a default under, any permit, license,
control or authority issued to the Purchaser which is necessary or
desirable in connection with the conduct and operations of its
business and the ownership or leasing of its business assets; or
(v) constitute a default by the Purchaser or any event which,
with the giving of notice or lapse of time or both, might
constitute an event of default, under any agreement, contract,
indenture or other instrument relating to any indebtedness of the
Purchaser which would give any party to that agreement, contract,
indenture or other instrument the right to accelerate the maturity
for the payment of any amount payable under that agreement,
contract, indenture or other instrument; and
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(v) all the Purchaser's publicly filed disclosure is materially accurate
and complete and may be relied upon by the Vendor in consummating the
transactions contemplated hereby.
ARTICLE 4
CONDITIONS PRECEDENT TO CLOSING
PURCHASER'S CONDITIONS PRECEDENT PRIOR TO THE CLOSING DATE
4.1 The obligations of the Purchaser under this Agreement to Close are
further subject to the following conditions for the exclusive benefit of the
Purchaser to be fulfilled in all material aspects in the reasonable opinion
of the Purchaser or in the Purchaser's discretion to be waived by the
Purchaser prior to or at the Closing:
(a) the Company and the Vendor shall have complied with all warranties,
representations, covenants and agreements herein agreed to be performed or
caused to be performed by the Company and the Vendor on or before the
Closing Date;
(b) the Purchaser shall have obtained all authorizations, approvals and
other actions by, and have made all filings with, any securities regulatory
authority from whom any such authorization, approval or other action is
required to be obtained or to be made in connection with the transactions
contemplated herein, and all such authorizations, approvals and other
actions are in full force and effect and all such filings have been
accepted;
(c) there shall have occurred no material loss or destruction of or
damage to the Company, any of its assets, any of the Company's Business or
the Purchased Shares in the reasonable opinion of the Purchaser, based upon
an updated Schedule "B";
(d) no action or proceeding at law or in equity shall be pending or
threatened by any person, company, firm, governmental authority, regulatory
body or agency to enjoin or prohibit:
(i) the purchase or transfer of any of the Purchased Shares
contemplated by this Agreement or the right of the Vendor to
dispose of any of the Purchased Shares; or
(ii) the right of the Company to conduct its operations and
carry on, in the normal course, its business and operations as it
has carried on in the past;
(e) the Company and the Vendor will cause the Company until Closing,
during normal business hours, and limited to the verification only of the
Vendor's and the Company's representations herein:
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(i) make available for inspection by the solicitors, auditors
and representatives of the Purchaser, at such location as is
appropriate, the Company's books, records, contracts, documents,
correspondence and other written materials, and afford such persons
every reasonable opportunity to make copies thereof and take
extracts therefrom at the sole cost of the Purchaser, provided such
persons do not unduly interfere in the operations of the Company;
(ii) authorize and permit such persons at the risk and the
sole cost of the Purchaser, and only if such persons do not unduly
interfere in the operations of the Company, to attend at all of its
places of business, inspect its assets and financial records; and
(iii) require the Company's management personnel to respond to
all reasonable inquiries concerning the Company's Business, its
assets or the conduct of its business relating to its liabilities
and obligations;
(f) the delivery by the Company and Vendor to the Purchaser of an
opinion of the solicitors for the Company and the Vendor, in a form
satisfactory to the Purchaser's solicitors, dated as at the date of Closing
together with certificates of an officer of the Vendor and an officer of
the Company, to the effect that:
(i) the Company is a corporation duly incorporated under the
laws of its jurisdiction of incorporation, is validly existing and
is in good standing with respect to all statutory filings required
by the applicable corporate laws;
(ii) the Company has the requisite power, authority and
capacity to own and use all of its assets and to carry on its
business as presently conducted by it;
(iii) the Vendor has taken all necessary corporate proceedings
and has all necessary regulatory approvals to sell and transfer all
the Purchased Shares under this Agreement;
(iv) the number of authorized and issued shares in the share
capital of the Company are as warranted by the Company and the
Vendor, and all of such issued shares are duly authorized, validly
issued and outstanding as fully paid and non-assessable;
(v) all necessary steps and corporate proceedings have been
taken by the Company and the Vendor to permit the Purchased Shares
to be duly and validly transferred to and registered in the name of
the Purchaser as at the Closing Date;
(vi) based on actual knowledge and belief, such solicitors and
officers know of no claims, judgments, actions, suits, litigation,
proceedings or investigations, actual, pending or threatened,
against either the Company or the Vendor which might materially
affect either the Company, its assets or the Company's Business or
which could result in any material liability to either of the
Company, its assets
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or the Company's Business and the officers shall confirm the
accuracy of the updated Schedule "B"; and
(vii) as to all other legal matters of a like nature pertaining
to the Vendor, the Company, its assets, the Company's Business and
to the transactions contemplated hereby as the Purchaser or the
Purchaser's solicitors may require on reasonable notice.
COMPANY'S AND VENDOR'S CONDITIONS PRECEDENT
4.2 The obligations of the Vendor under this Agreement to Close are
further subject to the following conditions for the exclusive benefit of the
Vendor to be fulfilled in all material aspects in the reasonable opinion of
the Vendor or in the Vendor's discretion, to be waived by the Vendor prior to
or at the Closing:
(a) the Purchaser shall have complied with all warranties,
representations, covenants and agreements herein agreed to be performed or
caused to be performed by the Purchaser on or before the Closing Date;
(b) the Vendor shall have received the approval of its shareholders for
the consummation of the purchase and sale contemplated hereby;
(c) there should have occurred no material loss or destruction of or
damage to the Purchaser's business or material assets;
(d) no action or proceeding at law or in equity shall be pending or
threatened by any person, company, firm, governmental authority, regulatory
body or agency to enjoin or prohibit:
(i) the purchase or transfer of any of the Purchased Shares
contemplated by this Agreement or the right of the Vendor to sell
the Purchased Shares; or
(ii) the right of the Company to conduct its operations and
carry on, in the normal course, its business and operations as it
has carried on in the past;
(e) the Purchaser will, until Closing, during normal business hours and
limited to the verification only of the Purchaser's representations herein:
(i) make available for inspection by the solicitors, auditors
and representatives of the Company and the Vendor, at such location
as is appropriate, all of the Purchaser's books, records,
contracts, documents, correspondence and other written materials,
and afford such persons every reasonable opportunity to make copies
thereof and take extracts therefrom at the sole cost of the Company
and the Vendor, provided such persons do not unduly interfere in
the operations of the Purchaser;
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(ii) authorize and permit such persons at the risk and the
sole cost of the Company and the Vendor, and only if such persons
do not unduly interfere in the operations of the Purchaser, to
attend at all of its places of business and operations to inspect
its properties and assets;
(iii) require the Purchaser's management personnel to respond
to all reasonable inquiries concerning the Purchaser's business
assets or the conduct of its business relating to its liabilities
and obligations; and
(f) the Purchaser shall have provided to Vendor a favourable opinion of
its solicitors respecting, as pertains the Purchaser, materially the same
legal matters as are referred to in Section 4.1(g) regarding the
solicitor's opinion pertaining to the Company and the Vendor.
PARTIES' MUTUAL CONDITIONS PRECEDENT
4.3 The closing shall also be conditional upon and subject to the
following conditions which may not be waived by the parties:
(a) the receipt of all necessary regulatory approvals by the Vendor on
or before May 31, 1999; and
(b) the Vancouver Stock Exchange having approved in principle of the
issuance by the Purchaser to the Vendor of the Purchase Consideration by
the Closing Date which acceptance or approval the Purchaser hereby agrees
to diligently seek after execution hereof.
FAIRNESS OPINION
4.4 The Vendor and the Purchaser acknowledge that the negotiations
resulting in the entering into of this Agreement were done with reference to
a fairness opinion prepared with respect to this acquisition by Xxxx
Xxxxxxxxx of Xxxx Xxxxxxxxx & Associates Ltd. Each of the parties has
enjoyed all necessary opportunity to review, make inquiries of and provide
input to Xx. Xxxxxxxxx with respect to the contents of his fairness opinion.
4.5 Each of the Vendor, Purchaser and the Company shall be responsible
to bear their own costs related to the transactions contemplated hereby
whether or not the transactions consummate. The cost of the fairness opinion
referred to in Section 4.4 shall be borne by the Purchaser.
ARTICLE 5
CLOSING AND EVENTS OF CLOSING
CLOSING AND CLOSING DATE
5.1 The closing (the "Closing") of the within purchase and delivery of
the Purchased Shares, together with all of the transactions contemplated by
this Agreement shall occur on the
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earlier of May 31, 1999 and the day which is 3 calendar days following the
satisfaction of all of the conditions precedent which are set out in Article
"4" hereinabove (the "Closing Date"), or on such earlier or later Closing
Date as may be agreed to in advance and in writing by each of the Parties
hereto. The Closing will occur at the offices of solicitors for the
Purchaser, Lang Xxxxxxxx Xxxxxxxx & Xxxx, at 2:00 p.m. (Vancouver time) on
the Closing Date.
LATEST CLOSING DATE
5.2 If the Closing Date has not occurred by May 31, 1999 the obligation
to close will be terminated unless the Parties hereto agree in writing to
grant an extension of the Closing Date.
DOCUMENTS TO BE DELIVERED BY THE COMPANY AND THE VENDOR PRIOR TO THE CLOSING
DATE
5.3 Not less than one business day prior to the Closing Date, and in
addition to the documentation which is required by the agreements and
conditions precedent which are set forth hereinabove, the Company and the
Vendor shall also execute and deliver or cause to be delivered all such other
documents, resolutions and instruments as may be necessary, in the opinion of
counsel for the Purchaser, acting reasonably, to transfer all of the
Purchased Shares to the Purchaser free and clear of all liens, charges and
encumbrances, and in particular including, but not being limited to:
(a) all documentation as may be necessary to ensure that all of the
Purchased Shares have been transferred, assigned and are registrable in the
name of and for the benefit of the Purchaser under the laws of the
Company's jurisdiction of incorporation;
(b) certificates representing the Purchased Shares registered in the
name of the Vendor, duly endorsed for transfer to the Purchaser with
irrevocable stock powers instructing and authorizing the Purchaser's
solicitors or its assigns to transfer the Purchased Shares to the
Purchaser;
(c) subject to cancellation of the certificate in Section 5.3(b), a
certificate representing the Purchased Shares registered in the name of the
Purchaser;
(d) a certified copy of the resolutions of the directors of the Company
authorizing the transfer by the Vendor to the Purchaser of the Purchased
Shares;
(e) a copy of all corporate records, material agreements, geology
reports and books of account of the Company and including, without limiting
the generality of the foregoing, a copy of all minute books, share register
books, share certificate books and annual reports and business records of
the Company;
(f) evidence of any necessary approval in writing of any regulatory
authority to the completion of the transactions contemplated herein;
(g) a certificate of an officer of the Vendor and the Company, dated as
of the Closing Date, acceptable in form to the solicitors for the
Purchaser, acting reasonably, certifying
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that the warranties, representations, covenants and agreements of the
Company and the Vendor contained in this Agreement are true and correct
in all respects and will be true and correct as of the Closing Date as
if made by the Company and the Vendor on the Closing Date and confirming
the accuracy of the updated Schedule "B";
(h) an opinion of counsel to the Company and the Vendor, dated as at the
Closing Date, and addressed to the Purchaser and its counsel, in form
referred to in Section 4.1(f).
(i) consents to act or other documents as may be required in connection
with the appointment of the nominee of the Vendor to the Board of Directors
of the Purchaser;
(j) resignations of all directors and officers of the Company and a
resolution appointing the Purchaser's nominee as director of the Company;
and
(k) all such other documents and instruments as the Purchaser's
solicitors may reasonably require.
DOCUMENTS TO BE DELIVERED BY THE PURCHASER PRIOR TO THE CLOSING DATE
5.4 Not less than one business day prior to the Closing Date, and in
addition to the documentation which is required by the agreements and
conditions precedent which are set forth hereinabove, the Purchaser shall
also execute and deliver or cause to be delivered all such documents,
resolutions and instruments as are necessary, in the opinion of counsel for
the Company and the Vendor, acting reasonably, to effectively issue to the
Vendor the Purchased Consideration free and clear of all liens, charges and
encumbrances, and in particular including, but not being limited to:
(a) a certified copy of the resolutions of the directors of the
Purchaser providing for:
(i) the allotment and issuance by the Purchaser to the Vendor
the Shares and Warrants comprised in the Purchase Consideration; and
(ii) the approval of all of the transaction contemplated
hereby and the appointment of a nominee of the Vendor to the
Purchaser's board of directors;
(b) the consents in writing of the Vancouver Stock Exchange to the
completion of the transactions contemplated herein;
(c) a certificate of an officer of the Purchaser, dated as of the
Closing Date, acceptable in form to the solicitors for the Company and the
Vendor, acting reasonably, certifying that the warranties, representations,
covenants and agreements of the Purchaser contained in the Agreement are
true and correct and will be true and correct as of the Closing Date as if
made by the Purchaser on the Closing Date and confirming the accuracy and
currency of the Purchaser's publicly filed information;
(d) an opinion of counsel to the Purchaser, dated as at the Closing
Date, and addressed to the Company, the Vendor and their respective
counsel, in form and
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substance satisfactory to the Company's and the Vendor' respective
counsel, corresponding generally to the matters requested of Vendor's
counsel set forth in Section 4.1(f);
(e) all such other documents and instruments as the Company's and the
Vendor' respective solicitors may reasonably require.
ARTICLE 6
DUE DILIGENCE AND NON-DISCLOSURE
DUE DILIGENCE
6.1 Each of the Parties shall have the right until Closing to conduct
any further compliance due diligence examination of the other Party as it
deems appropriate. Such due diligence shall be completed prior to Closing
and shall be conducted only with a view to confirming the accuracy of the
representations made by a party hereunder (except as provided in Section
4.1(e) and Section 4.2(d).
CONFIDENTIALITY
6.2 Each Party may in a reasonable manner carry out such investigations
and due diligence as to the other Party, at all times subject to the
confidentiality provisions hereinbelow, as each Party deems necessary. In
that regard the Parties agree that each shall have full and complete access
to the other Party's books, records, financial statements and other
documents, articles of incorporation, by-laws, minutes of Board of Directors'
meetings and its committees, investment agreements, material contracts and as
well such other documents and materials as the Vendor, the Company or the
Purchaser, or their respective solicitors, may deem reasonable and necessary
to conduct an adequate due diligence investigation of each Party, its
respective operations and financial condition prior to the Closing Date with
a view to verifying the accuracy of representations made hereunder.
NON-DISCLOSURE
6.3 Subject to the provisions hereinbelow, the Parties, for themselves,
their officers, directors, shareholders, consultants, employees and agents
agree that they each will not disseminate or disclose, or knowingly allow,
permit or cause others to disseminate or disclose to third parties who are
not subject to express or implied covenants of confidentiality, without the
other Party's express written consent, either: (i) the fact or existence of
this Agreement or discussions and/or negotiations between them involving,
INTER ALIA, possible business transactions; (ii) the possible substance or
content of those discussions; (iii) the possible terms and conditions of any
proposed transaction; (iv) any statements or representations (whether verbal
or written) made by either Party in the course of or in connection with those
discussions; or (v) any written material generated by or on behalf of any
Party and such contacts, other than such disclosure as may be required under
applicable securities legislation or regulations, pursuant
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to any order of a court or on a "need to know" basis to each of the Parties
respective professional advisors.
PUBLIC ANNOUNCEMENTS
6.4 Notwithstanding the provisions of this Article, the Parties agree
to make such public announcements of this Agreement promptly after its
execution in accordance with the requirements of applicable securities
legislation and regulations.
ARTICLE 7
ASSIGNMENT
ASSIGNMENT
7.1 Save and except as provided herein, no Party may sell, assign,
pledge or mortgage or otherwise encumber all or any part of its interest
herein without the prior written consent of the other Party; provided that
any Party may at anytime at its sole discretion and without the prior
approval of the other Party assign and transfer any benefit or right herein
to any wholly owned subsidiary, subject at all times to the requirement that
any such subsidiary remain wholly owned by the Party hereto failing which any
such interest must be immediately transferred back to such Party hereto; and
provided further that any transfer of all or any part of a Party's interest
herein to its wholly owned subsidiary shall be accompanied by the written
agreement of any such subsidiary to assume the obligations of such Party
hereunder and to be bound by the express terms and conditions hereof.
ARTICLE 8
FORCE MAJEURE
EVENTS
8.1 If any Party hereto is at any time prevented or delayed in
complying with any provisions of this Agreement by reason of acts of God, or
any other reason or reasons beyond the control of that Party (causes due to
insufficient finances excluded), then the time limited for the performance by
that Party of its respective obligations hereunder shall be extended by a
period of time equal in length to the period of each such prevention or delay.
NOTICE
8.2 A Party shall, within seven calendar days, give notice to the other
Party of each event of FORCE MAJEURE under section "8.1" hereinabove, and
upon cessation of such event shall furnish the other Party with notice of
that event together with particulars of the number of days by which the
obligations of that Party hereunder have been extended by virtue of such
event of FORCE MAJEURE and all preceding events of FORCE MAJEURE.
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ARTICLE 9
ARBITRATION
MATTERS FOR ARBITRATION
9.1 The Parties agree that all questions or matters in dispute with
respect to this Agreement shall, in so far as lawfully possible, be submitted
to arbitration pursuant to the terms hereof.
NOTICE
9.2 It shall be a condition precedent to the right of any Party to
submit any matter to arbitration pursuant to the provisions hereof that any
Party intending to refer any matter to arbitration shall have given not less
than two calendar days' prior written notice of its intention to do so to the
other Party together with particulars of the matter in dispute. On the
expiration of such two calendar days the Party who gave such notice may
proceed to refer the dispute to arbitration as provided in section "9.3"
hereinbelow.
APPOINTMENTS
9.3 The Party desiring arbitration shall appoint one arbitrator, and
shall notify the other Party of such appointment, and the other Party shall,
within two calendar days after receiving such notice, appoint an arbitrator,
and the two arbitrators so named, before proceeding to act, shall, within
five calendar days of the appointment of the last appointed arbitrator,
unanimously agree on the appointment of a third arbitrator, to act with them
and be chairman of the arbitration herein provided for. If the other Party
shall fail to appoint an arbitrator within two calendar days after receiving
notice of the appointment of the first arbitrator, and if the two arbitrators
appointed by the Parties shall be unable to agree on the appointment of the
chairman, the chairman shall be appointed under the provisions of the
COMMERCIAL ARBITRATION ACT (British Columbia) (the "ARBITRATION ACT").
Except as specifically otherwise provided in this section, the arbitration
herein provided for shall be conducted in accordance with the Arbitration
Act. The chairman, or in the case where only one arbitrator is appointed,
the single arbitrator, shall fix a time and place in Vancouver, British
Columbia, for the purpose of hearing the evidence and representations of the
Parties, and he shall preside over the arbitration and determine all
questions of procedure not provided for under such Arbitration Act or this
section. After hearing any evidence and representations that the Parties may
submit, the single arbitrator, or the arbitrators, as the case may be, shall
make an award and reduce the same to writing, and deliver one copy thereof to
each of the Parties. The expense of the arbitration shall be paid as
specified in the award.
AWARD
9.4 The Parties agree that the award of a majority of the arbitrators,
or in the case of a single arbitrator, of such arbitrator, shall be final and
binding upon each of them and such award may include the costs of the
arbitrator and of the parties in respect of the Arbitration.
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ARTICLE 10
TERMINATION
DEFAULT
10.1 The Parties hereto agree that if any Party hereto is in material
default with respect to any of its representations or covenants in this
Agreement (herein called the "DEFAULTING PARTY"), the non-defaulting Party
(herein called the "NON-DEFAULTING PARTY") shall give notice to the
Defaulting Party designating such default, and within 14 calendar days after
its receipt of such notice, the Defaulting Party shall either:
(a) cure such default, if reasonably possible, or commence proceedings
to cure such default and prosecute the same to completion without undue
delay; or
(b) give the Non-Defaulting Party notice that it denies that such
default has occurred and that it is submitting the question to arbitration
as herein provided.
ARBITRATION
10.2 If arbitration is sought, a Party shall not be deemed in default
until the matter shall have been determined finally by appropriate
arbitration under the provisions of Article "9" hereinabove.
CURING THE DEFAULT
10.3 If:
(a) the default is not so cured or the Defaulting Party does not
commence or diligently proceed to cure the default; or
(b) arbitration is not so sought; or
(c) the Defaulting Party is found in arbitration proceedings to be in
default, and fails to cure it within five calendar days after the rendering
of the arbitration award,
the Non-Defaulting Party may, by written notice given to the Defaulting Party
at any time while the default continues, terminate the interest of the
Defaulting Party in and to this Agreement.
TERMINATION
10.4 In addition to the foregoing it is hereby acknowledged and agreed
by the Parties hereto that the obligation to close under this Agreement will
be terminated without liability to the terminating party in the event that:
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(a) either the Company and the Vendor or alternatively the Purchaser,
has not either satisfied or waived each of their respective conditions
precedent prior to Closing in accordance with the provisions of Article "4"
hereinabove;
(b) either the Company, the Vendor or the Purchaser has failed to
deliver or caused to be delivered any of their respective documents
required to be delivered by Articles "4" and "5" hereinabove prior to
Closing in accordance with the provisions of Articles "4" and "5"
hereinabove and the other party does not waive receipt of such document;
(c) the conditions specified in section "4.3" hereinabove have not been
satisfied by the dates indicated;
(d) the Closing has not occurred on or before May 31, 1999 unless it is
due to a default of a party or a breach of a party's representation or
covenant hereunder; or
(e) by agreement, in writing, of each of the Company, the Vendor and the
Purchaser;
and in such event this Agreement will be terminated and be of no further
force and effect other than the obligations under Article "6" and Section 4.5
hereinabove.
ARTICLE 11
NOTICE
NOTICE
11.1 Each notice, demand or other communication required or permitted to
be given under this Agreement shall be in writing and shall be sent by
courier to the Party entitled to receive the same, or delivered to such
Party, at the address for such Party specified above. The date of receipt of
such notice, demand or other communication shall be the date of delivery
thereof if delivered, or, if given by facsimile transmission after 4:00 p.m.
in the place of receipt, the next day.
CHANGE OF ADDRESS
11.2 Either Party may at any time and from time to time notify the other
Party in writing of a change of address and the new address to which notice
shall be given to it thereafter until further change.
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ARTICLE 12
GENERAL PROVISIONS
ENTIRE AGREEMENT
12.1 This Agreement constitutes the entire agreement to date between the
Parties hereto and supersedes every previous agreement, communication,
expectation, negotiation, representation or understanding, whether oral or
written, express or implied, statutory or otherwise, between the Parties with
respect to the subject matter of this Agreement.
ENUREMENT
12.2 This Agreement will enure to the benefit of and will be binding
upon the Parties, their respective heirs, executors, administrators and
assigns.
APPLICABLE LAW
12.3 The situs of this Agreement is Vancouver, British Columbia, and for
all purposes this Agreement will be governed exclusively by and construed and
enforced in accordance with the laws prevailing in the Province of British
Columbia.
FURTHER ASSURANCES
12.4 The Parties hereto hereby covenant and agree to forthwith, upon
request and without payment of further consideration, execute and deliver, or
cause to be executed and delivered, such further and other deeds, documents,
assurances and instructions as may be reasonably required by another Party
hereto or its counsel in order to carry out the terms of this Agreement taken
as a whole.
SEVERABILITY AND CONSTRUCTION
12.5 Each Article, section, paragraph, term and provision of this
Agreement, and any portion thereof, shall be considered severable, and if,
for any reason, any portion of this Agreement is determined to be invalid,
contrary to or in conflict with any applicable present or future law, rule or
regulation in a final unappealable ruling issued by any court, agency or
tribunal with valid jurisdiction in a proceeding to any of the Parties hereto
is a party, that ruling shall not impair the operation of, or have any other
effect upon, such other portions of this Agreement as may remain otherwise
intelligible (all of which other terms shall remain binding on the Parties
and continue to be given full force and agreement as of the date upon which
the ruling becomes final).
CAPTIONS
12.6 The captions, section numbers and Article numbers appearing in this
Agreement are inserted for convenience of reference only and shall in no way
define, limit, construe or describe the scope or intent of this Agreement nor
in any way affect this Agreement.
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CURRENCY
12.7 Unless otherwise stipulated, all references to money amounts
hereunder shall be in lawful money of Canada.
COUNTERPARTS
12.8 This Agreement may be signed by the Parties hereto in as many
counterparts as may be necessary, and via facsimile if necessary, each of
which so signed being deemed to be an original and such counterparts together
constituting one and the same instrument and, notwithstanding the date of
execution, being deemed to bear the effective execution date as set forth on
the front page of this Agreement.
NO PARTNERSHIP OR AGENCY
12.9 The Parties have not created a partnership and nothing contained in
this Agreement shall in any manner whatsoever constitute any Party the
partner, agent or legal representative of any other Party, nor create any
fiduciary relationship between them for any purpose whatsoever. No Party
shall have any authority to act for, or to assume any obligations or
responsibility on behalf of, any other party except as may be, from time to
time, agreed upon in writing between the Parties or as otherwise expressly
provided.
CONSENTS AND WAIVERS
12.10 No consent or waiver expressed or implied by either Party in
respect of any breach or default by the other in the performance by such
other of its obligations hereunder shall:
(a) be valid unless it is in writing and stated to be a consent or
waiver pursuant to this section;
(b) be relied upon as a consent to or waiver of any other breach or
default of the same or any other obligation;
(c) constitute a general waiver under this Agreement; or
(d) eliminate or modify the need for a specific consent or waiver
pursuant to this section in any other or subsequent instance.
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Please acknowledge your acceptance of the general terms of this Agreement by
kindly executing the same in the space provided hereinbelow. This offer is
only open for acceptance until 5:00 p.m. (Vancouver time) on March 2, 1999.
Yours very truly,
GREAT BASIN GOLD LTD.
Per: (SIGNED)
Authorized Signatory
The within offer and terms of Agreement are hereby accepted by the following
authorized representatives of the Company and the Vendor effective on this 2nd
day of March, 1999:
CORNUCOPIA RESOURCES LTD.
Per: (SIGNED)
Authorized Signatory
TOUCHSTONE RESOURCES COMPANY
Per: (SIGNED)
Authorized Signatory
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