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EXHIBIT 10.44
AGREEMENT FOR PURCHASE AND SALE
THIS AGREEMENT made as of the 12th day of May, 1998
BETWEEN:
AQUILINE RESOURCES INC., a company incorporated under the laws of
British Columbia having an office at Xxxxx 000, 000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
("Aquiline")
OF THE FIRST PART
AND:
GLAMIS GOLD LTD., a company incorporated under the laws of
British Columbia having its registered office at 1500, 0000 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
("Glamis")
OF THE SECOND PART
WHEREAS:
(A) Aquiline has a 40% and Glamis has a 60% interest in the Cieneguita Joint
Venture ("Cieneguita Joint Venture") formed by the Cieneguita Joint Venture
Agreement made between Glamis and Aquiline (the "Cieneguita Agreement") which
was effective May 29, 1995;
(B) Glamis has been funding Aquiline's obligations under the Cieneguita
Agreement by way of loan;
(C) Aquiline has accumulated certain technical and financial data and other
information pertaining to the Cieneguita Agreement and the mineral properties
related thereto; and
(D) Aquiline and Glamis wish to terminate the Cieneguita Agreement, the debt
owed by Aquiline to Glamis and to transfer the technical, financial and other
data held by Aquiline with respect to the Cieneguita Agreement and the mineral
properties related thereto to Glamis, all pursuant to the terms and conditions
contained herein.
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NOW THEREFORE in consideration of the mutual agreements and covenants contained
herein and the consideration set forth herein, the receipt and sufficiency of
which is acknowledged by Aquiline, the parties hereto agree as follows:
PART 1
PURCHASE AND SALE
1.1 Based upon the representations and warranties set forth herein, and subject
to the terms and conditions hereinafter set forth, Aquiline hereby irrevocably
agrees to the termination of the Cieneguita Agreement and to the sale by it to
Glamis of all of the technical and financial and other data which Aquiline has
in respect of the Cieneguita Agreement and the mineral properties related
thereto (collectively the "Aquiline Data") and Glamis hereby irrevocably agrees
to the termination of the Cieneguita Agreement and to the purchase from Aquiline
of the Aquiline Data, free and clear of all liens, charges and encumbrances, for
the Purchase Price set out in Part 2.
1.2 The obligations of Glamis and Aquiline hereunder are subject to receipt by
them of required regulatory approvals and the closing of the transaction
contemplated under the agreement of purchase and sale among Minera Glamis La
Cieneguita S.R.L. de C.V., Minera Glamis S.A. de C.V.
and Minera Aquilon, S.A. de C.V. dated May 12, 1998.
PART 2
PURCHASE PRICE
2.1 The purchase price (the "Purchase Price") for the Aquiline Data is, as
hereinafter provided, $732,611.
2.2 The Purchase Price will be paid at the closing ("Closing") described in Part
6 as follows:
(a) $318,750 by cheque or bank draft payable by Glamis to Aquiline;
(b) $106,250 by the issuance by Glamis to Aquiline of 25,000 of its
Common shares (the "Glamis Shares") at a price of $4.25 each; and
(c) $307,611 by the cancellation by Glamis of all amounts owing by
Aquiline to Glamis in respect of the Cieneguita Agreement and Cieneguita
Joint Venture and the mineral properties related thereto.
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PART 3
REPRESENTATIONS AND WARRANTIES
3.1 Each of Aquiline and Glamis hereby represent and warrant to the other that:
(a) it is a company duly incorporated, organized and validly subsisting
under the laws of its incorporating jurisdiction;
(b) it has full power and authority to carry on its business and to
enter into this Agreement and any agreement or instrument referred to or
contemplated by this Agreement;
(c) neither the execution and delivery of this Agreement nor of any of
the agreements referred to herein or contemplated hereby, nor the
consummation of the transactions hereby contemplated conflict with,
result in the breach of or accelerate the performance required by, any
agreement to which it is a party;
(d) the execution and delivery of this Agreement and the agreements
contemplated hereby will not violate or result in the breach of any laws
of any jurisdiction applicable or pertaining thereto or of its
constating documents; and
(e) the execution and delivery of this Agreement and all other
agreements and documents to be executed and delivered by it hereunder
and the consummation by it of all the transactions contemplated
hereunder have been duly authorized and approved by all necessary
corporate action.
3.2 Aquiline hereby represents and warrants to Glamis that:
(a) Aquiline is the legal and beneficial owner of the Aquiline Data free
and clear of all liens, charges and encumbrances;
(b) there is no litigation, administrative or governmental proceeding,
investigation, inquiry or claim of any nature or kind pending or, to
Aquiline's knowledge, threatened against Aquiline or the Cieneguita
Joint Venture relating to the Aquiline Data or any part thereof nor is
Aquiline aware of any facts, circumstances or basis which could lead to
any litigation, administrative or governmental proceedings,
investigation, inquiry or claim of any nature or kind;
(c) no person, firm or corporation has any proprietary or possessory
interest in the Aquiline Data and no person, firm or corporation is
entitled to any interest therein or to the proceeds of sale of such;
(d) Aquiline has not granted any mortgage, lien or charge in respect of,
or assigned its interest in the Aquiline Data;
(e) there are no outstanding agreements or options to acquire or
purchase the Aquiline Data or any part thereof; and
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(f) Aquiline makes the representations, warranties and covenants set
forth in Schedule A hereto and incorporated by reference herein with
respect to Regulation S of the United States Securities Act of 1933, as
amended.
3.3 Glamis hereby represents and warrants to Aquiline that the Glamis Shares
when issued in accordance with the terms hereof will be duly issued as fully
paid and non-assessable shares, free and clear of all liens, charges and
encumbrances and such shares when issued will be listed for trading on the New
York and Toronto Stock Exchanges.
3.4 The representations and warranties set out above are conditions on which the
parties have relied in entering into this Agreement and will survive the
Closing.
PART 4
COVENANTS
4.1 Each party hereby covenants and agrees with the others to
(a) do all things reasonably within its power to complete the
transactions contemplated herein;
(b) use all reasonable efforts to obtain any required consents and
approvals with respect to the consummation of the transactions
contemplated herein and, where necessary, convene all meetings necessary
to obtain such consents and approvals;
(c) not make any press releases and to cause its directors and officers
to agree not to publicly disclose any information relating to this
Agreement, except for disclosure required by law or pursuant to the
policies of the stock exchanges on which either party's shares are
listed, without the prior consent of the other, which consent shall not
be unreasonably withheld and any request for consent shall be given in a
timely manner; and
(d) use their best efforts to close the transaction contemplated hereby
on or before June 12, 1998, but in any event not later than June 26,
1998.
4.2 The Cieneguita Agreement will terminate as of the occurrence of the Closing
and be null and void thereafter.
4.3 Subject to the occurrence of the Closing:
(a) Aquiline will not, whether directly or indirectly or in concert with
an entity in which it has an interest, acquire any mineral interests
within the area of three kilometres from the external boundary of the
mineral properties subject to the Cieneguita Agreement at the time of
Closing; and
(b) Aquiline will not from the time of Closing disclose any information
which it has in respect of the Cieneguita Joint Venture and the mineral
properties subject thereto, provided
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that such restriction will not apply to information which is or becomes
part of the public domain other than through a breach of the terms
hereof by Aquiline.
PART 5
RELEASES, INDEMNITIES AND ASSUMPTION OF LIABILITIES
5.1 Aquiline will indemnify and save harmless Glamis and its directors,
officers, servants, agents or employees from all claims, actions, liabilities,
damages, costs and expenses resulting from:
(a) the falsity or inaccuracy of any representation and warranty made by
Aquiline to Glamis pursuant to Part 3 of this Agreement;
(b) any breach of any covenant or agreement made by Aquiline in this
Agreement; and
(c) the performance or failure of performance of any obligations,
agreements, conditions and commitments of Aquiline under this Agreement.
5.2 Glamis will indemnify and save harmless Aquiline and its directors,
officers, servants, agents or employees from all claims, actions, liabilities,
damages, costs and expenses resulting from:
(a) the falsity or inaccuracy of any representation and warranty made by
Glamis to Aquiline pursuant to Part 3 of this Agreement;
(b) any breach of any covenant or agreement made by Glamis in this
Agreement; and
(c) the performance or failure of performance of any obligations,
agreements, conditions and commitments of Glamis under this Agreement.
5.3 Effective upon the occurrence of the Closing, Glamis hereby releases
Aquiline from and will hold it harmless in respect of all amounts owing by
Aquiline to Glamis under the Cieneguita Agreement which are due or accruing due
at the time of the Closing and in respect of all other matters arising
thereunder.
5.4 Effective upon the occurrence of the Closing, Aquiline hereby releases
Glamis from and will hold it harmless in respect of all amounts owing by Glamis
to Aquiline under the Cieneguita Agreement which are due or accruing due at the
time of the Closing and in respect of all other matters arising thereunder.
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PART 6
DELIVERIES AT CLOSING
6.1 At the Closing:
(a) Aquiline will deliver the Aquiline Data to Glamis and will deliver
to Glamis such other instruments, documents and written representations
as may be reasonably necessary under applicable securities legislation
to enable Glamis to issue 25,000 Common shares of Glamis to Aquiline;
and
(b) Glamis will deliver a cheque or bank draft for $318,750 to Aquiline
together with a share certificate registered in the name of Aquiline for
25,000 Common shares of Glamis, such having noted thereon such legends
as are required by applicable Canadian and United States Securities
laws.
PART 7
NOTICES
7.1 All notices, designations or other documents required or authorized by the
terms of this Agreement will be in writing and will be personally delivered or
telecopied, addressed as follows:
(a) if to Aquiline:
Xxxxx 000, 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Fax: (000) 000-0000
Telephone: (000) 000-0000
(b) if to Glamis
0000 Xxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000
7.2 Any of the parties may change its address for notice by giving the other
parties notice of such change in the manner specified in this Part. Notices
personally delivered or telecopied will be deemed to have been made or received
on the date of such delivery or telecopy.
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PART 8
GENERAL
8.1 This Agreement may not be amended except in writing signed by the parties.
8.2 All references to currency herein are to the lawful currency of the United
States of America.
8.3 This Agreement is and will be deemed to have been made in British Columbia,
for all purposes will be governed exclusively by and construed and enforced in
accordance with the laws prevailing in British Columbia and the rights and
remedies of the parties will be determined in accordance with those laws.
8.4 No consent or waiver, express or implied, by any party to or of any breach
or default by any other party of any or all of its obligations under this
Agreement will
(a) be valid unless it is in writing and stated to be a consent or
waiver pursuant to this Part;
(b) be relied on 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.
8.5 Each party will, at its own expense (except where otherwise specified) and
without expense to any other party, execute and deliver such further agreements
and other documents and do such further acts and things as any other party
reasonably requests to evidence, carry out or give full force and effect to the
intent of this Agreement.
8.6 This Agreement is a complete and absolute sale of the Aquiline Data by
Aquiline to Glamis. Upon fulfilment of the provisions of Part 6 hereof, the
terms of this Agreement will be deemed to have been fulfilled and fully
exercised and the parties will not have any further rights and obligations
hereunder, save and except for the covenants described in paragraphs 3.4, 4.2
and 4.3 and the indemnity provisions of Part 5 hereof, which provisions will
survive such fulfilment and exercise.
8.7 This Agreement constitutes the entire agreement among the parties 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.
8.8 This Agreement may be executed in several counterparts, each of which so
executed will be deemed to be an original and such counterparts together will
constitute one and the same instrument.
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8.9 This Agreement will enure to the benefit of the respective successors and
assigns of the parties.
IN WITNESS WHEREOF the common seals of the parties have been affixed in the
presence of their duly authorized officer(s) as of the day and year first above
written.
AQUILINE RESOURCES INC.
Per:_________________________________
Per:_________________________________
GLAMIS GOLD LTD.
Per:_________________________________
Per:_________________________________
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SCHEDULE A
REPRESENTATIONS, WARRANTIES AND COVENANTS
REGARDING COMPLIANCE WITH REGULATION S OF THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
1. Aquiline Resources Inc ("AQI") hereby represents and warrants to and
covenants and agrees with Glamis Gold Ltd. ("Glamis") as follows:
(a) AQI acknowledges that the Common Shares have not been and will not
be registered under the United States Securities Act of 1933, as amended
(the "Securities Act"), or any applicable state securities law, and
therefore constitute "restricted securities" within the meaning of Rule
144 thereof, and that the contemplated issuance may not be offered or
sold in the United States or for the account or benefit of U.S. Persons
(as described below) except in reliance on an exclusion from such
registration pursuant to Regulation S of the Securities Act;
(b) AQI understands that if it decides to offer, sell or otherwise
transfer any of the Common Shares, it will not offer, sell or otherwise
transfer any of such securities, directly or indirectly, unless (i) the
disposition is to the Company; (ii) the disposition is made outside the
United States in compliance with the requirements of Rule 903 or Rule
904 of Regulation S, if available (or such successor rule or regulation
as then in effect); (iii) there is in effect a registration statement
under the Securities Act covering such proposed disposition and such
disposition is made in accordance with such registration statement; (iv)
the disposition complies in all respects with Rule 144 or Rule 145 under
the Securities Act, or (v) in a transaction that does not require
registration under the Securities Act and any applicable state
securities laws and it has, prior to such disposition, furnished to
Glamis an opinion of counsel of recognized standing reasonably
satisfactory to Glamis;
(c) AQI will not engage in hedging transactions with regard to the
Common Shares during the one year "distribution compliance period"
beginning on the date of the Closing unless in compliance with the
Securities Act;
(d) AQI (i) is not a U.S. Person (as such term is defined in Regulation
S) and is not acquiring the Common Shares for the account or benefit of
a U.S. Person and (ii) was not offered, did not execute and did not
deliver this Agreement while in the United States;
(e) The Common Shares are being acquired for investment purposes, not as
a nominee or agent, and not with a view to any resale, distribution or
other disposition of the Common Shares, of any part thereof, in
violation of the Securities Act or applicable state securities laws;
(f) AQI understands that upon the original issuance thereof, and until
such time as the same is no longer required under applicable
requirements of the Securities Act or applicable state securities laws,
certificates representing the Common Shares, and all
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certificates issued in exchange therefore or in substitution thereof,
shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE THE UNITED
STATES IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, IF AVAILABLE, (C) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (D) IN
A TRANSACTION THAT COMPLIES IN ALL RESPECTS WITH THE REQUIREMENTS
OF RULE 144 OR RULE 145 UNDER THE SECURITIES ACT, IF AVAILABLE,
AND IN COMPLIANCE WITH ANY STATE SECURITIES LAWS, (E) IN A
TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS AND,
PRIOR TO SUCH DISPOSITION, THE HOLDER HAS FURNISHED TO THE
COMPANY AN OPINION OF COUNSEL OF RECOGNIZED STANDING REASONABLY
SATISFACTORY TO THE COMPANY.
THE HOLDER HEREOF MAY NOT ENGAGE IN ANY HEDGING TRANSACTIONS WITH
RESPECT TO THE SECURITIES EVIDENCED HEREBY FOR A PERIOD OF ONE
YEAR FROM THE DATE OF ORIGINAL ISSUANCE UNLESS IN COMPLIANCE WITH
THE SECURITIES ACT.
(g) It acknowledges that the Company will refuse to register any
transfer of the Common Shares if such transfer is not made in accordance
with the legend set forth in subparagraph (f) above.
2. Solely with regard to the Common Shares to be issued to AQI pursuant to the
Agreement, Glamis will refuse to register any subsequent transfer of such Common
Shares if such transfer is not made in accordance with Regulation S of the
Securities Act, pursuant to registration under the Securities Act or pursuant to
an available exemption from registration under the Securities Act.
