ASSET PURCHASE AGREEMENT
EXHIBIT
4.4
THIS
AGREEMENT DATED AS OF THE 7th
DAY OF
NOVEMBER, 2005 (the “Effective
Date”).
BETWEEN:
XX.
XXXXXXX XXXXXX, a
business person having a place of business at 000 Xxxxxx Xxxx, Xxxxxxx XXX
0000,
Xxxxxxxxx,
(“Xx.
Xxxxxx”)
AND:
CYBELE
RESOURCES INC.,
a
company incorporated under the laws of British Columbia having a place of
business at 000 - 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX X0X 0X0
(“Cybele”)
WHEREAS:
A. Xx.
Xxxxxx is in possession of intellectual property used for targeting gold and
copper properties and has defined a database (the “Assets”) comprising of the
latitude and longitude of the centre of priority areas that constitute
exploration targets and the Assets have been delivered on a computer disk by
Xx.
Xxxxxx to Cybele;
B. Cybele
would like to purchase the Assets from Xx. Xxxxxx, and Xx. Xxxxxx would like
to
sell the Assets to Cybele on the terms and conditions set forth in this
Agreement;
NOW
THEREFORE THIS AGREEMENT WITNESSES that in consideration of the covenants and
agreements herein contained, the parties hereto do covenant and agree (the
“Agreement”) each with the other as follows:
| 1. |
Representations
And Warranties
|
1.1 In
order
to induce Xx. Xxxxxx to enter into this Agreement and complete his obligations
hereunder, Cybele represents and warrants to Xx. Xxxxxx that:
| (a) |
Cybele
was and remains duly incorporated under the laws of British Columbia
and
is in good standing with respect to the filing of annual reports with
the
Director of the B.C. Business Corporations Act;
|
| (b) |
Cybele
holds all licences and permits that are required for carrying on its
business in the manner in which such business will need to be carried
on
in order for Cybele to meet its obligations under this
Agreement;
|
| (c) |
Cybele
has the corporate power to carry on the business carried on by it and
to
be carried on by it to meet its obligations under this Agreement, and
Cybele is duly qualified to carry on business in all jurisdictions
in
which it carries on business;
|
| (d) |
Cybele
has good and sufficient right and authority to enter into this Agreement
and to carry out its obligations under this Agreement on the terms
and
conditions set forth herein, and this Agreement is a binding agreement
on
Cybele enforceable against it in accordance with its terms and conditions;
and
|
| (e) |
the
execution and delivery of this Agreement and the performance of its
obligations under this Agreement will
not:
|
| (i) |
conflict
with, or result in the breach of or the acceleration of any indebtedness
under, or constitute default under, the Memorandum or Articles of
Cybele,
or any indenture, mortgage, agreement, lease, licence or other instrument
of any kind whatsoever to which it is a party or by which it is bound,
or
any judgement or order of any kind whatsoever of any court or
administrative body of any kind whatsoever by which it is bound;
or
|
| (ii) |
to
the best of its knowledge, result in the violation of any law, ordinance,
statute, regulation, by-law, order or decree of any kind whatsoever
by
Cybele.
|
1.2 The
representations and warranties of Cybele are true and correct as of the
Effective Date and shall be true and correct as of the Time of Closing as though
they were made at that time, and should such not be the case, Xx. Xxxxxx shall
be entitled, for a period of one year following Closing, to seek remedy against
Cybele for any such misrepresentation or breach of warranty.
1.3 In
order
to induce Cybele to enter into this Agreement and complete its obligations
hereunder, Xx. Xxxxxx represents and warrants to Cybele that:
| (a) |
Xx.
Xxxxxx is the beneficial owner of all the
Assets;
|
| (b) |
Xx.
Xxxxxx has good and marketable title to the Assets free and clear of
all
liens, charges and encumbrances of any
kind;
|
| (c) |
Xx.
Xxxxxx has good and sufficient right and authority to enter into this
Agreement and to carry out his obligations under this Agreement on
the
terms and conditions set forth herein, and this Agreement is a binding
agreement on Xx. Xxxxxx enforceable against him in accordance with
its
terms and conditions; and
|
| (d) |
to
the extent that they might prevent Xx. Xxxxxx from meeting his obligations
under this Agreement, there are no outstanding actions, suits, judgements,
investigations or proceedings of any kind whatsoever against or affecting
Xx. Xxxxxx at law or in equity or before or by any federal, provincial,
state, municipal or other governmental department, commission, board,
bureau or agency of any kind whatsoever nor are there, to the best
of his
knowledge, any pending or threatened.
|
1.4 The
representations and warranties of Xx. Xxxxxx are true and correct as of the
Effective Date and shall be true and correct as of the Time of Closing as though
they were made at that time, and should such not be the case, Cybele shall
be
entitled, for a period of one year following Closing, to seek remedy against
Xx.
Xxxxxx for any such misrepresentation or breach of warranty.
| 2. |
Purchase
and Sale
|
2.1 Subject
to the terms and conditions of this Agreement, Xx. Xxxxxx agrees to sell the
Assets to Cybele, and Cybele agrees to purchase the Assets from Xx. Xxxxxx,
on
the Closing Date in exchange for a 0.5% Net Smelter Return (“NSR”), as defined
in Schedule “A” to
this
Agreement. The NSR will apply to the Assets as set out in the computer disk
delivered by Xx. Xxxxxx to Cybele and will apply to any resource extracted
by
Cybele that falls within or overlaps with an area defined by a circle whose
radius is 10km of the latitude and longitude of the centre of the target listed
in the Assets.
| 3. |
Covenants,
Agreements and
Acknowledgements
|
3.1 Xx.
Xxxxxx covenants and agrees with Cybele that he shall:
| (a) |
provide
to Cybele and its advisors, reasonable access to the Assets, accounting
records, legal records and other business records related to the revenue
attributed to the Assets;
|
| (b) |
from
and including the Effective Date through to and including the Time
of
Closing, do all such acts and things necessary to ensure that all of
the
representations and warranties of Xx. Xxxxxx remain true and correct,
and
not do any such act or thing that would render any representation or
warranty of Xx. Xxxxxx untrue or
incorrect;
|
| (c) |
from
and including the Effective Date through to and including the Time
of
Closing, preserve and protect the Assets and, without limiting the
generality of the foregoing, preserve and protect the Assets in a
reasonable and prudent manner; and
|
| (d) |
not
negotiate with any other person in respect of a purchase and sale of
any
part of the Assets.
|
3.2 Cybele
covenants and agrees with Xx. Xxxxxx that it shall use reasonable commercial
efforts to raise US$400,000 by December 7, 2005 failing which Xx. Xxxxxx has
the
option to demand in writing by December 31, 2005 that the Assets be returned
to
him in exchange for the return of the NSR. The parties acknowledge that Cybele
intends to raise an additional US$1,000,000, but there are no assurances that
such funds will be obtained on terms acceptable to Cybele. If, for any reason
the Board of Directors of Cybele determine that it is in the best interest
of
the Company to delay or curtail any additional funding beyond the US$400,000,
Cybele, in good faith, will discuss alternate business or funding arrangements
with Xx. Xxxxxx in order that Cybele can continue reasonable
operations.
| 4. |
Conditions
Precedent
|
4.1 Xx.
Xxxxxx’x obligations under this Agreement including, without limitation, his
obligation to close this Agreement, are subject to the fulfilment, to its
satisfaction, of the following conditions that:
| (a) |
as
of the Time of Closing, Cybele shall have complied with all of its
covenants and agreements contained in this Agreement;
and
|
| (b) |
as
of the Time of Closing, the representations and warranties of Cybele
contained in this Agreement shall be completely true and correct as
if
such representations and warranties had been made by Cybele as of the
Time
of Closing.
|
The
conditions precedent set forth above are for the exclusive benefit of Xx. Xxxxxx
and may be waived by him in whole or in part on or before the Time of
Closing.
4.2 Cybele’s
obligations under this Agreement including, without limitation, its obligation
to close this Agreement, are subject to the fulfilment, to its satisfaction,
of
the following conditions that:
| (a) |
as
of the Time of Closing, Xx. Xxxxxx shall have complied with all of
his
covenants and agreements contained in this Agreement;
and
|
| (b) |
as
of the Time of Closing, the representations and warranties of Xx. Xxxxxx
contained in this Agreement shall be completely true and correct as
if
such representations and warranties had been made by Xx. Xxxxxx as
of the
Time of Closing.
|
The
conditions precedent set forth above are for the exclusive benefit of Cybele
and
may be waived by it in whole or in part on or before the Time of
Closing.
| 5. |
Closing
|
5.1 The
completion of the transactions contemplated under this Agreement shall be closed
(the “Closing”) at the offices of Catalyst Corporate Finance Lawyers, Suite
1400, 1055 West Hastings Street, Vancouver, British Columbia, at 9:00 a.m.
local
time in Vancouver, B.C. (the “Time of Closing”) on 7th
day of
November, 2005 (the “Closing Date”) .
5.2 At
the
Time of Closing on the Closing Date, Xx. Xxxxxx shall deliver to Cybele the
following Closing documents: all the books, records, data, know how, maps,
results, programs, electronic data and all other information comprising of
the
Assets.
5.3 At
the
Time of Closing on the Closing Date, Cybele shall deliver to Xx. Xxxxxx the
following Closing documents: a certified true copy of the resolutions of the
board of directors of Cybele evidencing that the board of Cybele has approved
this Agreement and all of the transactions of Cybele contemplated
hereunder.
| 6. |
General
|
6.1 Time
and
each of the terms and conditions of this Agreement shall be of the essence
of
this Agreement and any waiver by the parties of this paragraph or any failure
by
them to exercise any of their rights under this Agreement shall be limited
to
the particular instance and shall not extend to any other instance or matter
in
this Agreement or otherwise affect any of their rights or remedies under this
Agreement.
6.2 The
schedules to this Agreement and the recitals to this Agreement constitute a
part
of this Agreement. The headings in this Agreement are for reference only and
do
not constitute terms of the Agreement. Whenever the singular or masculine is
used in this Agreement the same shall be deemed to include the plural or the
feminine or the body corporate as the context may require.
6.3 This
Agreement constitutes the entire agreement between the parties hereto in respect
of the matters referred to herein and there are no representations, warranties,
covenants or agreements, expressed or implied, collateral hereto other than
as
expressly set forth or referred to herein.
6.4 The
parties hereto shall execute and deliver all such further documents and
instruments and do all such acts and things as any party may, either before
or
after the Closing, reasonably require of the other in order that the full intent
and meaning of this Agreement is carried out. The provisions contained in this
Agreement which, by their terms, require performance by a party to this
Agreement subsequent to the Closing of this Agreement, shall survive the Closing
of this Agreement.
6.5 No
alteration, amendment, modification or interpretation of this Agreement or
any
provision of this Agreement shall be valid and binding upon the parties hereto
unless such alteration, amendment, modification or interpretation is in written
form executed by all of the parties to this Agreement.
6.6 Any
notice, request, demand or other communication of any kind whatsoever to be
given under this Agreement shall be in writing and shall be delivered by hand,
email or by fax to the parties at their following respective
addresses:
To
Xx.
Xxxxxxx Xxxxxx:
000
Xxxxxx Xxxx
Xxxxxxx
XXX 0000
Xxxxxxxxx
Fax: (000)
0000-0000
To
Cybele
Resources Inc.:
000
- 000
Xxxxxxxxx Xxxxxx
Xxxxxxxxx,
XX
X0X
0X0
Attention: Xxxxxx
Xxxxxxxx
Fax: (000)
000-0000
or
to
such other addresses as may be given in writing by the parties hereto in the
manner provided for in this paragraph, and the party sending such notice should
request acknowledgement of delivery and the party receiving such notice should
provide such acknowledgement. Notwithstanding whether or not a request for
acknowledgement has been made or replied to, whether or not delivery has
actually occurred will be a question of fact. If a party can prove that delivery
was made as provided for above, then it will constitute delivery for the
purposes of this Agreement whether or not the receiving party acknowledged
receipt.
6.7 This
Agreement may not be assigned by any party hereto without the prior written
consent of all of the parties hereto.
6.8 This
Agreement shall be subject to, governed by, and construed in accordance with
the
laws of the Province of British Columbia and the federal laws of Canada
applicable therein, and the parties hereby attorn to the jurisdiction of the
Courts of British Columbia.
6.9 This
Agreement may be signed by fax and in counterpart and each copy so signed shall
be deemed to be an original, and all such counterparts together shall constitute
one and the same instrument.
IN
WITNESS WHEREOF the parties have hereunto set their hands and seals effective
as
of the Effective Date first above written.
|
“Xx.
Xxxxxxx Xxxxxx
Xx.
Xxxxxxx Xxxxxx
|
|
|
THE
CORPORATE SEAL of CYBELE
RESOURCES INC. was
hereunto affixed in the presence of:
“Cybele
Resources Inc.
Authorized
Signatory
|
)
)
)
)
)
) c/s
)
)
)
)
|
SCHEDULE
“A” TO THE AGREEMENT MADE
BETWEEN
XX. XXXXXX AND CYBELE
Net
Smelter Return
1. Net
Smelter Returns shall mean any and all amounts received, from time to time,
by
the party obligated to pay the royalty (the “Owner”) for product extracted from
ore mined from the Assets, deducting therefrom all expenses relating to the
treatment of such product at any smelter, refinery or mint, including all costs
and charges for the treatment, tolling, smelting, refining or minting of such
product and all costs and weighing, sampling, assaying and marketing, as well
as
penalties, representation charges, referee’s fees and expenses, import taxes and
export taxes; that is to say, Net Smelter Returns shall mean the net amount
received by the Owner from a smelter, refinery or mint, as the case my be,
less
all costs and charges associated with marketing, selling and delivering the
product to the smelter, refinery or mint, as the case may be.
2. If
the
product is treated at a smelter, refinery or mint owned, operated or controlled
by the Owner or an affiliate of it, all costs and charges referred to in
paragraph 1 hereof shall be equivalent to the prevailing competitive rates
charges by similar smelters, refineries or mints, as the case may be, in arm’s
length transactions for the treatment of like quantities and quality of
product.
3. Net
Smelter Returns shall be calculated by the Owner at the end of the calendar
quarter in which the ores or concentrates from the Assets were sold or otherwise
deemed disposed of and payment to the party entitled to receive such payment
(the “Royalty Holder”) shall be made by the Owner within 45 days after the end
of each quarter.
4. The
Owner
shall provide the Royalty Holder with an annual statement of the Net Smelter
Returns as of the end of each December 31st on or before the 31st day of March
following such 31st day of December. The Owner shall maintain adequate records
which shall be made available to the Royalty Holder for a period of eight (8)
months following the delivery of such annual statement by the Owner so as to
enable the Royalty Holder to verify the correctness of its determination of
Net
Smelter Returns. The determination of whether an entry has been properly
categorized or calculated shall be finally made by an independent auditor to
be
appointed by the Owner if the parties cannot agree between themselves, provided,
however, that after the eighth month following the delivery of an annual
statement, such annual statement shall be deemed to be correct and the Royalty
Holder shall waive all of its rights to challenge same.
5. For
the
purposes of determining whether an amount received by the Owner is properly
received on account of “product extracted from ore mined from the Assets,” as
defined in paragraph 1 hereof, the parties agree that all amounts received
by
the Owner on account of future sales contracts, hedging programs or other
commodity arrangements which relate to product extracted (or to be extracted)
from ore mined (or to be mined) from the Assets shall be deemed to be subject
to
the Net Smelter Returns Royalty and the Royalty Holder shall be entitled to
receive payments in respect thereof.
