AMENDING AGREEMENT TO ACQUISITION AGREEMENT Between: GLOBAL URANIUM CORP. (as the Vendor) And: URANIUM ENERGY CORP. (as the Purchaser) Uranium Energy Corp. 500 North Shoreline, Ste. 800N, Corpus Christi, Texas, U.S.A., 78471
__________
AMENDING AGREEMENT
TO ACQUISITION AGREEMENT
Between:
GLOBAL URANIUM CORP.
(as the Vendor)
And:
URANIUM ENERGY CORP.
(as the Purchaser)
Uranium Energy Corp.
000 Xxxxx Xxxxxxxxx, Xxx. 000X, Xxxxxx Xxxxxxx, Xxxxx, X.X.X., 00000
AMENDING AGREEMENT
THIS AMENDING AGREEMENT TO ACQUISITION AGREEMENT is made and dated for reference effective as at June 24, 2011 (the "Effective Date").
GLOBAL uranium corp., having an address for notice and delivery located Suite 910 - 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(the "Vendor");
OF THE FIRST PART
AND:
URANIUM ENERGY CORP., having an office located at 000 Xxxxx Xxxxxxxxx, Xxxxx 000X, Xxxxxx Xxxxxxx, Xxxxx, 00000
(the "Purchaser");
OF THE SECOND PART
(and each of the Vendor and the Purchaser being hereinafter singularly also referred to as a "Party" and collectively referred to as the "Parties" as the context so requires).
A. In accordance with the terms and conditions of a certain underlying "Acquisition Agreement", dated for reference effective as at April 11, 2011, 2005, as entered into between the Parties (the "Underlying Agreement"); a copy of which Underlying Agreement being attached hereto as Schedule "A" and forming a material part hereof; the Vendor thereby agreed to sell, and the Purchaser agreed to acquire, subject to the prior satisfaction of certain conditions precedent to the satisfaction of the Purchaser and including, without limitation, the Purchaser's concurrent acquisition of 100% of the issued and outstanding shares, options and warrants of Concentric Energy Corp. ("Concentric"; and, collectively, the "Concentric Acquisition"), all of the Vendor's rights and interests (collectively, the "Rights") under the terms and conditions of a certain "Option and Joint Venture Agreement" dated April 13, 2010 (the "Option Agreement"), as entered between the Vendor and Concentric, pursuant to which the Vendors' Rights entitle it, in part, to acquire up to a 100% undivided participating interest in and to certain mining claim mineral property interests which are more particularly described in "Exhibit A" to the Option Agreement; a copy of which Option Agreement being attached to the Underlying Agreement as Schedule "A" (collectively, the "Acquisition");
B. In accordance with section "5.2", as confirmed by paragraph "13.4(d)", of the Underlying Agreement it is thereby acknowledged and agreed that:
"5.2 Latest Closing Date. If the Closing Date has not occurred by July 31, 2011 this Agreement will be terminated and unenforceable unless the Parties agree in writing to grant an extension of the Closing Date..."; and
C. As a consequence, in part, of certain delays being experienced by the Purchaser in its proposed Concentric Acquisition, which must complete contemporaneously with the within Acquisition, and for other and good and valuable consideration; the sufficiency of which being hereby acknowledged by each of the Parties; the Parties have agreed to amend section "5.2" and paragraph "13.4(d)" of the Underlying Agreement in the manner as now set forth in this "Amending Agreement To Acquisition Agreement" (the "Agreement") and, correspondingly, the Parties have agreed to enter into Agreement which clarifies the respective duties and obligations of the Parties in those respects in relation to the completion of the Acquisition;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual promises, covenants and agreements herein contained, THE PARTIES COVENANT AND AGREE WITH EACH OTHER as follows:
Article 1
AMENDMENTS TO THE UNDERLYING AGREEMENT
1.1 Capitalized Definitions. Capitalized terms not otherwise herein defined shall have the meaning ascribed to them in the Underlying Agreement.
1.2 Amendments to the Underlying Agreement. As a consequence, in part, of certain delays being experienced by the Purchaser in its proposed Concentric Acquisition, which must complete contemporaneously with the within Acquisition, and, furthermore, in order to clarify certain of the terms and conditions of the Underlying Agreement for the benefit of each of the Parties, the Parties hereby acknowledge and agree that the following provisions of the Underlying Agreement are hereby deleted in their entirety with the following provisions of this Agreement being substituted therefore:
(a) section "5.2" of the Underlying Agreement is hereby deleted in its entirety with the following section being substituted in its stead:
"5.2 Latest Closing Date. If the Closing Date has not occurred by October 31, 2011 this Agreement will be terminated and unenforceable unless the Parties agree in writing to grant an extension of the Closing Date..."; and
(b) paragraph "13.4(d)" of the Underlying Agreement is hereby deleted in its entirety with the following paragraph being substituted in its stead:
"(d) the Closing has not occurred on or before October 31, 2011 or such other date as the Parties may agree to in accordance with section "5.2" hereinabove; or".
1.3 Effect of the Underlying Agreement. Save as hereby amended in accordance with section "1.2" hereinabove, the Underlying Agreement remains in full force and effect as unamended. This Agreement shall form a part of the Underlying Agreement for all purposes, and each of the Parties shall be bound hereby. From and after the execution of this Agreement by the Parties, any reference to the Underlying Agreement shall be deemed a reference to the Underlying Agreement as amended hereby.
Article 2
GENERAL PROVISIONS
2.1 Entire agreement. This Agreement constitutes the entire agreement to date between 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 hereto with respect to the subject matter of this Agreement. This Agreement constitutes the entire agreement between 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. Nothing in this Section "2.1" will limit or restrict the effectiveness and validity of any document with respect to the subject matter of this Agreement that is executed and delivered contemporaneously with or pursuant to this Agreement.
2.2 Enurement. This Agreement will enure to the benefit of and will be binding upon the Parties and their respective successors and assigns.
2.3 Schedule. The Schedule to this Agreement is hereby incorporated by reference into this Agreement in its entirety.
2.4 Time of the essence. Time will be of the essence of this Agreement.
2.5 Representation and costs. It is hereby acknowledged by each of the Parties that XxXxxxxx LLP, Lawyers - Patent & Trade Xxxx Agents, act solely for the Purchaser and, correspondingly, that the Vendor has been required by each of XxXxxxxx LLP and the Purchaser to obtain independent legal advice with respect to its review and execution of this Agreement. In addition, it is hereby further acknowledged and agreed by the Parties that XxXxxxxx LLP, and certain or all of its principal owners or associates, from time to time, may have both an economic or shareholding interest in and to the Purchaser and/or a fiduciary duty to the same arising from either a directorship, officership or similar relationship arising out of the request of the Purchaser for certain of such persons to act in a similar capacity while acting for the Purchaser as counsel. Correspondingly, and even where, as a result of this Agreement, the consent of each Party to the role and capacity of XxXxxxxx LLP, and its principal owners and associates, as the case may be, is deemed to have been received, where any conflict or perceived conflict may arise, or be seen to arise, as a result of any such capacity or representation, each Party acknowledges and agrees to, once more, obtain independent legal advice in respect of any such conflict or perceived conflict and, consequent thereon, XxXxxxxx LLP, together with
any such principal owners or associates, as the case may be, shall be at liberty at any time to resign any such position if it or any Party is in any way affected or uncomfortable with any such capacity or representation. Each Party to this Agreement will also bear and pay its own costs, legal and otherwise, in connection with its respective preparation, review and execution of this Agreement and, in particular, that the costs involved in the preparation of this Agreement, and all documentation necessarily incidental thereto, by XxXxxxxx LLP, shall be at the cost of the Purchaser.
2.6 Applicable law. The situs of this Agreement is Vancouver, British Columbia, Canada, and for all purposes this Agreement will be governed exclusively by and construed and enforced in accordance with the laws and Courts prevailing in the Province of British Columbia, Canada, together with the federal laws of Canada applicable therein.
2.7 Further assurances. The Parties hereby, jointly and severally, covenant and agree to forthwith, upon request, execute and deliver, or cause to be executed and delivered, such further and other deeds, documents, assurances and instructions as may be required by the Parties or their respective counsel in order to carry out the true nature and intent of this Agreement.
2.8 Severability and construction. 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 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 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).
2.9 Captions. The captions, section numbers, Article numbers and Schedule letter 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.
2.10 Counterparts. This Agreement may be signed by the Parties in as many counterparts as may be necessary and, if required, by facsimile, each of which so signed being deemed to be an original, and such counterparts together shall constitute one and the same instrument and, notwithstanding the date of execution, will be deemed to bear the Effective Date as set forth on the front page of this Agreement.
IN WITNESS WHEREOF each of the Parties has executed this Agreement by its duly authorized signatory as of the Effective Date as set forth on the front page of this Agreement.
GLOBAL URANIUM CORP.,
Per:
/s/ Xxxxxx Xxxxx
Authorized Signatory
URANIUM ENERGYCORP.,
Per:
/s/ Xxxx Xxxxxx
Authorized Signatory
Schedule A
This is Schedule "A" to that certain Amending Agreement To Acquisition Agreement as entered into between the Vendor (Global Uranium Corp.) and the Purchaser (Uranium Energy Corp.).
Underlying Agreement
Refer to the materials attached hereto.
Between:
GLOBAL URANIUM CORP.
(as the Vendor)
And:
URANIUM ENERGY CORP.
(as the Purchaser)
Uranium Energy Corp.
000 Xxxxx Xxxxxxxxx, Xxx. 000X, Xxxxxx Xxxxxxx, Xxxxx, X.X.X., 00000
__________
THIS ACQUISITION AGREEMENT is made and dated for reference effective as at April 11, 2011 (the "Effective Date") as fully executed on this 11th day of April, 2011.
BETWEEN:
GLOBAL URANIUM CORP., having an address for notice and
delivery located Suite 910 - 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0
(the "Vendor");
OF THE FIRST PART
AND:
URANIUM ENERGY CORP., having an office located at 000
Xxxxx Xxxxxxxxx, Xxxxx 000X, Xxxxxx Xxxxxxx, Xxxxx, 00000
(the "Purchaser");
OF THE SECOND PART
(and each of the Vendor and the Purchaser being hereinafter
singularly also referred to as a "Party" and collectively referred to
as the "Parties" as the context so requires).
A. The Vendor holds certain rights and interests (collectively, the "Rights") under the terms and conditions of a certain "Option and Joint Venture Agreement" dated April 13, 2010 (the "Option Agreement"), as entered between the Vendor and Concentric Energy Corp. ("Concentric"), pursuant to which the Vendors' Rights entitle it, in part, to acquire up to a 100% undivided participating interest in and to certain mining claim mineral property interests which are more particularly described in "Exhibit A" to the Option Agreement (collectively, the "Property"); a copy of which Option Agreement being attached to this Agreement as Schedule "A" and forming an integral part hereof;
B. As a consequence of recent discussions and negotiations as between the Parties, the Vendor has agreed to sell, and the Purchaser has agreed to acquire, subject to the prior satisfaction of certain conditions precedent to the satisfaction of the Purchaser and including, without limitation, the Purchaser's concurrent acquisition of 100% of the issued and outstanding shares, options and warrants of Concentric (collectively, the "Concentric Acquisition"), all of the Rights (collectively, the "Acquisition"); and
C. The Parties have agreed to enter into this "Acquisition Agreement" (the "Agreement") which formalizes and replaces, in their entirety, all such recent discussions and negotiations and which clarifies each of the Parties' respective duties and obligations in connection with the proposed purchase by the Purchaser from the Vendor of all of the Rights currently with the Concentric Acquisition.
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NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual promises, covenants and agreements herein contained, THE PARTIES COVENANT AND AGREE WITH EACH OTHER as follows:
Article 1
ACQUISITION TRANSACTION
1.1 Acquisition of the Rights and Acquisition Payment. Subject to and conditional upon the concurrent completion by the Purchaser of the Concentric Acquisition, the Vendor hereby agrees to sell, assign and transfer all of the Rights (as defined above) under the Option Agreement (as defined above) in exchange for the payment and delivery by the Purchaser to the Vendor of the following consideration in the following manner:
(a) an initial U.S. $150,000 by way of wire transfer within two business days of the Effective Date as directed by the Vendor to the Purchaser (the "Initial Cash Payment"),which shall be non-refundable;
(b) a further U.S. $200,000 by way of additional wire transfer within five business days of the Effective Date (the "Additional Cash Payment"); with said additional wire transfer representing the acknowledged repayment by Concentric to the Vendor of any and all monies presently due and owing by Concentric to the Vendor under their Option Agreement and all related loans thereunder and, consequent thereby, and without any further act being required on behalf of either Party, immediately releasing and fully assigning to the Purchaser any security previously granted by Concentric to the Vendor associated with the same (the "Assignment of Debt and Security by the Vendor to the Purchaser");
(c) 350,000 restricted common shares of the Purchaser's common stock (the "Acquisition Shares"), which the Parties acknowledge and agree shall be valued at a deemed issuance price of U.S. $4.00 per Acquisition Share, and which Acquisition Shares shall be issued and delivered by the Purchaser to the Vendor simultaneously with and on the date on which the Purchaser completes its current Concentric Acquisition (the "Concentric Closing"); provided that such Concentric Closing occurs on or before July 31, 2011, or on such earlier or later date as mutually agreed upon by the Parties in writing from time to time (such date being the "Closing Date"); and
(d) a final U.S. $150,000 by way of wire transfer on the Closing Date as directed by the Vendor to the Purchaser (the "Final Cash Payment");
(and each of the Initial Cash Payment, the Additional Cash Payment, the issuance and delivery of the Acquisition Shares and the Final Cash Payment being, collectively, the "Acquisition Payment" herein).
In this regard the Vendor hereby acknowledges and agrees that the Purchaser makes no representations as to any resale or other restriction affecting the Acquisition Shares and the Vendor in reliance upon the registration and prospectus exemptions contained in "Regulation S" promulgated under the United States Securities Act of 1933 (the "Securities Act") which will continue to impose a trading restriction in the United States on the Acquisition Shares for a period of at least six months from the date of issuance. The Purchaser hereby also acknowledges and understands that neither the sale of the Acquisition Shares, nor any of the Acquisition Shares themselves, have been registered under the Securities Act or any state securities laws, and, furthermore, that the Acquisition Shares must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available. The Purchaser also acknowledges and understands that the certificate(s) representing the Acquisition Shares will be stamped with the following legend (or substantially equivalent language) restricting transfer in the following manner if such restriction is required by applicable securities laws:
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"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT") OR APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, (B) TO THE CORPORATION, (C) IN ACCORDANCE WITH RULE 144 UNDER THE 1933 ACT, IF AVAILABLE, AND IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS, (D) IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S, IF AVAILABLE, OR (E) IN A TRANSACTION THAT DOES NOT OTHERWISE REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS IF AN OPINION OF COUNSEL, OF RECOGNIZED STANDING REASONABLY SATISFACTORY TO THE CORPORATION, HAS BEEN PROVIDED TO THE CORPORATION TO THAT EFFECT. THE SECURITIES REPRESENTED BY THE CERTIFICATE CANNOT BE THE SUBJECT OF HEDGING TRANSACTIONS UNLESS SUCH TRANSACTIONS ARE CONDUCTED IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE SECURITIES LAWS."; and
"UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [four months and one day from the Closing Date]";
and the Vendor hereby consents to the Purchaser making a notation on its records or giving instructions to any transfer agent of the Acquisition Shares in order to implement the restrictions on transfer set forth and described hereinabove.
1.2 Right of Purchaser to terminate Agreement. Prior to the Closing Date the Purchaser may terminate this Agreement by providing a notice of termination to the Vendor in writing of its desire to do so at least 14 calendar days prior to its decision to do so. After such 14-calendar days' period the Purchaser shall have no further obligations, financial or otherwise, under this Agreement, except for the provisions and obligations set forth in section "1.3" and Article "9" hereinbelow. If this Agreement is so terminated by the Purchaser, then the Purchaser shall have no right, entitlement or interest, legally or equitably, in and to any of the Rights.
1.3 Obligations upon termination of the Agreement. If this Agreement is terminated in accordance with either of section "1.2" hereinabove or section "5.2" or Article "13" hereinbelow, then the Purchaser shall deliver at no cost to the Vendor, within 30 calendar days of such termination, all originals and all copies of any materials with respect to the Rights, and including, without limitation, all reports, maps, assay results and other relevant technical data compiled by or in the possession of the Purchaser with respect to the interests comprising the Rights and the Property and not theretofore already furnished to the Vendor.
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1.4 Standstill. In consideration of the Parties' within agreement to effect the Acquisition and to enter into the terms and conditions of this Agreement, and as a necessary consequence of the terms of this Agreement requiring the completion of the Concentric Closing as a condition precedent to the Closing of this Acquisition, each of the Parties hereby undertakes for themselves, and for each of their respective agents and advisors, that they will not until the earlier of the Closing Date or the termination of this Agreement approach or consider any other potential purchasers, or make, invite, entertain or accept any offer or proposal for the proposed sale of any interest in and to any of the Rights or, for that matter, disclose any of the terms of this Agreement except as may be required by applicable laws or the policies of any applicable stock exchange, without the Parties' prior written consent (collectively, the "Standstill"). In this regard each of the Parties hereby acknowledges that the foregoing Standstill restrictions are important to the respective businesses of the Parties and that a breach by any of the Parties of any of the covenants herein contained would result in irreparable harm and significant damage to each affected Party that would not be adequately compensated for by monetary award. Accordingly, the Parties hereby agree that, in the event of any such breach, in addition to being entitled as a matter of right to apply to a Court of competent equitable jurisdiction for relief by way of restraining order, injunction, decree or otherwise as may be appropriate to ensure compliance with the provisions hereof, any such Party will also be liable to the other Parties, as liquidated damages, for an amount equal to the amount received and earned by such Party as a result of and with respect to any such breach. The Parties hereby also acknowledge and agree that if any of the aforesaid Standstill restrictions, activities, obligations or periods are considered by a Court of competent jurisdiction as being unreasonable, they agree that said Court shall have authority to limit such Standstill restrictions, activities or periods as the Court deems proper in the circumstances.
Article 2
DUE DILIGENCE
2.1 Due Diligence by the Purchaser. From the Effective Date of this Agreement and up to including 5 p.m. (PST) on the day prior to the Closing Date (such period in time being the "Purchaser's Due Diligence Period" herein) the Purchaser may conduct all manner of due diligence investigations in respect of the Vendor and the Rights in order to determine the merits of any of the Property mineral interests underlying the Rights. For purposes of such investigations the Vendor will use its reasonable commercial efforts to arrange for the Purchaser and its agents and representatives effective on the Effective Date to have full access to the Property underlying the Rights together with all books, records, financial and operating data and other information concerning the Rights and the Property in the Vendor's possession as the Purchaser and its agents and representatives may reasonably request. If, at any time during the Purchaser's Due Diligence Period, the Purchaser determines that it is not satisfied, in its sole discretion, with the results of such investigations, it may elect not to proceed with the transactions contemplated hereby. In such instance the Purchaser will notify the Vendor of such fact and thereupon this Agreement will terminate and the Parties will have no further obligations hereunder except for the obligations as set forth in section "1.3" and Article "9" herein.
Article 3
WARRANTIES, REPRESENTATIONS AND COVENANTS
3.1 Warranties, representations and covenants by the Vendor. In order to induce the Purchaser to enter into this Agreement, the Vendor hereby warrants to, represents to and covenants with the Purchaser that, to the best of the knowledge, information and belief of the Vendor herein, after making due inquiry:
(a) the Vendor is 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;
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(b) subject to the terms of the Option Agreement, the Vendor is the legal and beneficial owner of the Rights free and clear of all actual or threatened liens, charges, options, encumbrances, voting agreements, voting trusts, demands, limitations and restrictions of any nature whatsoever, except for how such Rights might be affected by that certain petition (case number 2:10-bk-18796-SSC) as filed in the United States Bankruptcy Court, District of Arizona, by the petitioning creditors, AWM Holding, LLC, Blue Sky Securities Ltd., Xxxxx X. Xxxxxxxxx, Xxxxxxx Xxxxxx, and Xxxx X. X'Xxxx, against the debtor, Concentric (collectively, the "Bankruptcy Petition");
(c) save and except as provided for under the Option Agreement, the Vendor has the power and capacity to own and dispose of the Rights;
(d) there are no claims of any nature whatsoever affecting the right of the Vendor to transfer the Rights to the Purchaser, except for the claims made under the Bankruptcy Petition;
(e) the activities conducted on the Property by or on behalf of the Vendor are in compliance with all applicable laws, regulations or orders and including, without limitation, all laws relating to environmental matters, waste disposal and storage and reclamation;
(f) there are no actions, suits, proceedings or investigations (whether or not purportedly against or on behalf of the Vendor), pending or threatened, which may affect, without limitation, the rights of the Vendor to transfer any interest in the Rights to the Purchaser at law or in equity, or before or by any federal, state, provincial, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, except for the claims made under the Bankruptcy Petition, and, in addition, the Vendor is not now aware of any existing ground on which any such action, suit or proceeding might be commenced with any reasonable likelihood of success;
(g) this Agreement constitutes a legal, valid and binding obligation of the Vendor, enforceable against the Vendor in accordance with its respective terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(h) the Vendor has the full authority and capacity required to enter into this Agreement and to perform its respective obligations hereunder;
(i) 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 Vendor, after making due inquiry, threatened against or affecting the Rights at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau or agency, except for the claims made under the Bankruptcy Petition;
(j) the Vendor is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which the Vendor is subject or which apply to the Vendor that would have a material adverse effect on the transactions contemplated by this Agreement;
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(k) no proceedings are pending for, and the Vendor is unaware of, any basis for the institution of any proceedings leading to the placing of the Vendor in bankruptcy or subject to any other laws governing the affairs of insolvent persons;
(l) 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 any law, judgment, order, injunction, decree, regulation or ruling of any court or governmental authority, domestic or foreign, to which the Vendor is subject, or constitute or result in a default under any agreement, contract or commitment to which the Vendor is a party; or
(ii) 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 Vendor which is necessary or desirable in connection with the ownership of any of Rights to the mineral interests comprising the Property; and
(m) the Vendor has delivered to the Purchaser all information and documentation within the Vendor's possession or control respecting the mineral interests comprising the Property; and
(n) the Vendor is not aware of any fact or circumstance which has not been disclosed to the Purchaser which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Purchaser to enter into this Agreement.
3.2 Warranties, representations and covenants by the Purchaser. In order to induce the Vendor to enter into this Agreement, the Purchaser hereby warrants to, represents to and covenants with the Vendor that, to the best of the knowledge, information and belief of the Purchaser herein, after making due inquiry:
(a) the Purchaser is 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;
(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 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;
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(d) this Agreement constitutes a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its respective terms, except as enforcement may be limited by laws of general application affecting the rights of creditors;
(e) 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 constating documents of the Purchaser; or
(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;
(f) the Purchaser is not in breach of any laws, ordinances, statutes, regulations, by-laws, orders or decrees to which the Purchaser is subject or which apply to the Purchaser that would have a material adverse effect on the transactions contemplated by this Agreement;
(g) no proceedings are pending for, and the Purchaser is unaware of, any basis for the institution of any proceedings leading to the placing of the Purchaser in bankruptcy or subject to any other laws governing the affairs of insolvent persons;
(h) the Purchaser is a reporting issuer in the United States pursuant to the United States Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the Purchaser has filed all documents (the "SEC Documents") required to be filed by it with the United States Securities and Exchange Commission (the "SEC") since the date that is two years preceding the Effective Date pursuant to the reporting requirements of the Exchange Act and including, without limitation, the provisions of the United States Xxxxxxxx-Xxxxx Act of 2002 that are applicable to the Purchaser. As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents;
(i) the Purchaser's shares are listed and posted for trading on the NYSE Amex Equities exchange; and
(j) the Purchaser is not aware of any fact or circumstance which has not been disclosed to the Vendor which should be disclosed in order to prevent the representations, warranties and covenants contained in this section from being misleading or which would likely affect the decision of the Vendor to enter into this Agreement.
3.3 Continuity of the representations, warranties and covenants. The representations, warranties and covenants contained herein, or in any certificates or documents delivered pursuant to the provisions of this Agreement or in connection with the transactions contemplated hereby, will be true at and as of the Closing Date as though such representations, warranties and covenants were made at and as of such time. Notwithstanding any investigations or inquiries made by either of the Parties or by their respective professional advisors prior to the Closing Date, or the waiver of any condition by any Party, the representations, warranties and covenants contained herein shall survive the Closing Date and shall continue in full force and effect for a period of one year from the Effective Date.
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Article 4
CONDITIONS PRECEDENT TO CLOSING
4.1 Parties' conditions precedent. All of the rights, duties and obligations of each of the Parties under this Agreement are subject to the following conditions precedent for the exclusive benefit of each of the Parties to be fulfilled in all material aspects in the reasonable opinion of each of the Parties or to be waived by each or any of the Parties, as the case may be, as soon as possible after the Effective Date; however, unless specifically indicated as otherwise, not later than five calendar days prior to the Closing Date (such date being the "Subject Removal Date"):
(a) the delivery by the Vendor to the Purchaser of written evidence, satisfactory to the Purchaser in its sole and absolute discretion, acting reasonably, that each of the Vendor's representations, warranties and covenants contained hereinabove are true and accurate and including, without limitation, confirming that:
(i) the underlying Option Agreement is in good standing and that the Vendor's Rights thereunder are in full force and effect without limitation; and
(ii) the Vendor has waived and continues to waive its current right of first refusal in respect of the Concentric Acquisition under "Section 9.4.3"of the Option Agreement pending the completion of this Acquisition and the Concentric Closing;
(collectively, the "Conditions Precedent");
(b) the specific ratification of the terms and conditions of this Agreement by the Board of Directors of each of the Vendor and the Purchaser within one business day of the Effective Date (collectively, the "Ratification");
(c) the completion by each of the Vendor and the Purchaser of an initial due diligence and operations review of the other Party's respective businesses and operations within 10 calendar days of Effective Date (collectively, the "Initial Due Diligence");
(d) if required under applicable corporate and securities laws and the policies of applicable stock exchanges, the receipt of all necessary approvals from any regulatory authority having jurisdiction over the transactions contemplated by this Agreement on or before May 15, 2011; and
(e) if required under applicable corporate and securities laws, the respective shareholders of the Purchaser and the Vendor passing an ordinary resolution or, where required, a special resolution, approving the terms and conditions of this Agreement and all of the transactions contemplated hereby.
4.2 Parties' waiver of conditions precedent. The conditions precedent set forth in section "4.1" hereinabove are for the exclusive benefit of each of the Parties and may be waived by each or any of the Parties in writing and in whole or in part at any time; however, not later than the Subject Removal Date.
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4.3 Vendor's conditions precedent. The rights, duties and obligations of the Vendor under this Agreement are also subject to the following conditions precedent for the exclusive benefit of the Vendor to be fulfilled in all material aspects in the reasonable opinion of the Vendor or to be waived by the Vendor as soon as possible after the Effective Date, however; unless specifically indicated as otherwise, not later than the Subject Removal Date:
(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 delivery by the Purchaser to the Vendor of written evidence, satisfactory to the Vendor in its sole and absolute discretion, acting reasonably, that each of the Purchaser's representations, warranties and covenants contained hereinabove are true and accurate;
(c) the Purchaser shall have complied with all applicable securities laws in connection with the issuance of the Acquisition Shares to the Vendor on the Closing Date;
(d) the Purchaser will have obtained all authorizations, approvals, or waivers that may be necessary or desirable in connection with the transactions contemplated in this Agreement, and other actions by, and have made all filings with, any and all regulatory authorities required to be made in connection with the transactions contemplated herein, and all such authorizations, approvals and other actions will be in full force and effect, and all such filings will have been accepted by the Purchaser who will be in compliance with, and have not committed any breach of, any securities laws, regulations or policies of any regulatory authority to which the Purchaser may be subject; and
(e) all matters which, in the opinion of counsel for the Vendor, are material in connection with the transactions contemplated by this Agreement shall be subject to the favourable opinion of such counsel, and all relevant records and information shall be supplied to such counsel for that purpose.
4.4 Vendor's waiver of conditions precedent. The conditions precedent set forth in section "4.3" hereinabove are for the exclusive benefit of the Vendor and may be waived by the Vendor in writing and in whole or in part at any time after the Effective Date; however, unless specifically indicated as otherwise, not later than the Subject Removal Date.
4.5 Purchaser's conditions precedent. The rights, duties and obligations of the Purchaser under this Agreement are also subject to the following conditions precedent for the exclusive benefit of the Purchaser to be fulfilled in all material aspects in the reasonable opinion of the Purchaser or to be waived by the Purchaser as soon as possible after the Effective Date; however, unless specifically indicated as otherwise, not later than the Subject Removal Date:
(a) the Vendor shall have complied with all warranties, representations, covenants and agreements herein agreed to be performed or caused to be performed by the Vendor on or before the Closing Date and including, without limitation, the Conditions Precedent;
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(b) the Vendor will have obtained all authorizations, approvals or waivers that may be necessary or desirable in connection with the transactions contemplated in this Agreement, and other actions by, and have made all filings with, any and all regulatory authorities 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 will be in full force and effect, and all such filings will have been accepted by the Vendor who will be in compliance with, and have not committed any breach of, any securities laws, regulations or policies of any regulatory authority to which the Vendor may be subject;
(c) all matters which, in the opinion of counsel for the Purchaser, are material in connection with the transactions contemplated by this Agreement shall be subject to the favourable opinion of such counsel, and all relevant records and information shall be supplied to such counsel for that purpose;
(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 Rights contemplated by this Agreement or the right of the Vendor to dispose of any of the Rights, except for the claims made under the Bankruptcy Petition; or
(ii) the right of the Vendor 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 delivery to the Purchaser by the Vendor, on a confidential basis, of any and all documentation in the Vendor's possession respecting the Option Agreement and the Property interests (collectively, the "Business Documentation") and including, without limitation, the following documentation and information:
(i) a copy of all material contracts, agreements, reports and information of any nature in the Vendor's possession respecting the Option Agreement and the Property interests; and
(ii) details of any lawsuits, claims or potential claims relating to either the Option Agreement or the Property interests of which the Vendor is aware and the Purchaser is unaware; and
(f) the completion by the Purchaser and by the Purchaser's professional advisors of a thorough due diligence and operations review of the Property interests together with the transferability of the Rights as contemplated by this Agreement, to the sole and absolute satisfaction of the Purchaser.
4.6 Purchaser's waiver of conditions precedent. The conditions precedent set forth in section "4.5" hereinabove are for the exclusive benefit of the Purchaser and may be waived by the Purchaser in writing and in whole or in part at any after the Effective Date; however, unless specifically indicated as otherwise, not later than the Subject Removal Date.
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Article 5
CLOSING AND EVENTS OF CLOSING
5.1 Closing and Closing Date. The closing (the "Closing") of the within purchase and assignment of the Rights, as contemplated in the manner as set forth in Article "1" hereinabove, together with all of the transactions contemplated by this Agreement and the Acquisition, shall occur on such day which is five business days following the due and complete satisfaction of all of the conditions precedent which are set out in Article "4" hereinabove and including, without limitation, the completion of the Concentric Closing (herein 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, and will be closed, in each such instance, at the offices of XxXxxxxx LLP, Lawyers - Patent & Trade Xxxx Agents, counsel for the Purchaser, located at 1500 Royal Centre, 1055 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0, at 2:00 p.m. (Vancouver time) on the Closing Date.
5.2 Latest Closing Date. If the Closing Date has not occurred by July 31, 2011 this Agreement will be terminated and unenforceable unless the Parties agree in writing to grant an extension of the Closing Date.
5.3 Documents to be delivered by the Vendor prior to the Closing Date. Not later than two business days 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 Vendor shall also execute and deliver, or cause to be delivered, to the Purchaser and/or the Escrow Agent (as defined below), as applicable, all such other documents, resolutions and instruments as may be necessary, in the opinion of counsel for the Purchaser, acting reasonably, to complete all of the transactions contemplated by this Agreement and including, without limitation, the necessary assignment all of the Rights to the Purchaser under the Acquisition free and clear of all liens, charges and encumbrances, and in particular including, but not being limited to, the following materials:
(a) if required by applicable corporate law, a certified copy of an ordinary (or special) resolution of the shareholders of the Vendor approving the terms and conditions of this Agreement and the transactions contemplated hereby and thereby;
(b) all documentation as may be necessary and as may be required by counsel for the Purchaser, acting reasonably, to ensure that all of the Rights have been transferred, assigned and are registerable in the name of and for the benefit of the Purchaser under all applicable corporate and securities laws;
(c) a certified copy of the resolutions of the Board of Directors of the Vendor authorizing the transfer by the Vendor to the Purchaser of the Rights;
(d) written evidence, satisfactory to the Purchaser in its sole and absolute discretion, acting reasonably, that each of the Conditions Precedent continue to be satisfied;
(e) any remaining Business Documentation not previously provided;
(f) all necessary consents and approvals in writing to the completion of the transactions contemplated herein;
(g) a certificate of an officer from the Vendor, dated as of the Closing Date, acceptable in form to counsel for the Purchaser, acting reasonably, certifying that the warranties, representations, covenants and agreements of 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 Vendor on the Closing Date; and
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(h) all such other documents and instruments as the Purchaser's counsel may reasonably require.
5.4 Documents to be delivered by the Purchaser prior to the Closing Date. Not later than two business days 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, to the Vendor and/or the Escrow Agent, as applicable, all such other documents, resolutions and instruments as are necessary, in the opinion of counsel for the Vendor, acting reasonably, to complete the Acquisition, to make the Acquisition Payment and to issue the Acquisition Shares free and clear of all liens, charges and encumbrances, however, subject to the normal resale provisions applicable thereto, and in particular including, but not being limited to, the following materials:
(a) a Closing agenda;
(a) if required by applicable corporate law, a certified copy of an ordinary (or special) resolution of the shareholders of the Purchaser approving the terms and conditions of this Agreement and the transactions contemplated hereby and thereby;
(c) a certified copy of the resolutions of the directors of the Purchaser providing for the approval of all of the transactions contemplated hereby;
(d) the remaining Acquisition Payment comprised of the Final Cash Payment and the Acquisition Shares, in the form of a Purchaser common stock share certificate subject to the normal resale provisions applicable thereto, and representing all of the Acquisition Shares issued and registered in the name of the Vendor;
(e) all necessary consents and approvals in writing to the completion of the transactions contemplated herein;
(f) confirmation of the Purchaser's satisfaction with its due diligence in accordance with section "2.1" hereinabove;
(g) written evidence, satisfactory to the Purchaser in its sole and absolute discretion, acting reasonably, that the Concentric Closing has closed or is closed into escrow pending the Closing of this Acquisition;
(h) a certificate of an officer of the Purchaser, dated as of the Closing Date, acceptable in form to counsel for the Vendor, acting reasonably, certifying that the warranties, representations, covenants and agreements of the Purchaser contained in this 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
(i) all such other documents and instruments as the Vendor's counsel may reasonably require.
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Article 6
APPOINTMENT OF ESCROW AGENT AND TRANSFER DOCUMENTS
6.1 Appointment of Escrow Agent. The Parties hereby acknowledge and initially appoint XxXxxxxx LLP, Lawyers - Patent & Trade Xxxx Agents, located at 0000 Xxxxx Xxxxxx, 0000 Xxxx Xxxxxxx Street, Vancouver, British Columbia, V6E 4N7, counsel for the Purchaser herein, as escrow agent (the "Escrow Agent") herein, or such other Escrow Agent as may be mutually determined by the Parties prior to the Subject Removal Date.
6.2 Escrow of Transfer Documents. Subject to and in accordance with the terms and conditions hereof and the requirements of Articles "1", "3", "4" and "5" hereinabove, and without in any manner limiting the obligations of each of the Parties as contained therein and hereinabove, it is hereby acknowledged and confirmed by the Parties that each of the Parties will execute, deliver, or cause to be delivered, all such documentation as may be required by the requirements of Articles "1", "4" and "5" hereinabove (herein, collectively, the "Transfer Documents") and deposit the same with the Escrow Agent, or with such other mutually agreeable escrow agent, together with a copy of this Agreement, there to be held in escrow for release by the Escrow Agent to the Parties in accordance with the strict terms and provisions of Articles "1", "4" and "5" hereinabove.
6.3 Resignation of Escrow Agent. The Escrow Agent may resign from its duties and responsibilities if it gives each of the Parties three calendar days' written notice in advance. Upon receipt of notice of the Escrow Agent's intention to resign, the Parties shall, within three calendar days, select a replacement escrow agent and jointly advise the Escrow Agent in writing to deliver the Transfer Documents to the replacement escrow agent. If the Parties fail to agree on a replacement escrow agent within three calendar days of such notice, the replacement escrow agent shall be selected by a Judge of the Supreme Court of the Province of British Columbia upon application by any Party. The Escrow Agent shall continue to be bound by this Agreement until the replacement escrow agent has been selected and the Escrow Agent receives and complies with the joint instructions of the Parties to deliver the Transfer Documents to the replacement escrow agent. The Parties agree to enter into an escrow agreement substantially in the same form of this Agreement with the replacement escrow agent.
6.4 Instructions to Escrow Agent. Instructions given to the Escrow Agent pursuant to this Agreement shall be given by duly authorized signatories of the respective Parties.
6.5 No other duties or obligations. The Escrow Agent shall have no duties or obligations other than those specifically set forth in this Article.
6.6 No obligation to take legal action. The Escrow Agent shall not be obligated to take any legal action hereunder which might, in its judgment, involve any expense or liability unless it shall have been furnished with a reasonable indemnity by all of the Parties together with such other third parties as the Escrow Agent may require in its sole and absolute discretion.
6.7 Not bound to any other agreements. The Escrow Agent is not bound in any way by any other contract or agreement between the Parties whether or not it has knowledge thereof or of its terms and conditions and its only duty, liability and responsibility shall be to hold and deal with the Transfer Documents as herein directed.
6.8 Notice. The Escrow Agent shall be entitled to assume that any notice and evidence received by it pursuant to these instructions from anyone has been duly executed by the Party by whom it purports to have been signed and that the text of any notice and evidence is accurate and the truth. The Escrow Agent shall not be obliged to inquire into the sufficiency or authority of the text or any signatures appearing on such notice or evidence.
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6.9 Indemnity. The Parties, jointly and severally, covenant and agree to indemnify the Escrow Agent and to hold it harmless against any loss, liability or expense incurred, without negligence or bad faith on its part, arising out of or in connection with the administration of its duties hereunder including, without limitation, the costs and expenses of defending itself against any claim or liability arising therefrom.
6.10 Not required to take any action. In the event of any disagreement between any of the Parties to these instructions or between them or either or any of them and any other person, resulting in adverse claims or demands being made in connection with the Transfer Documents, or in the event that the Escrow Agent should take action hereunder, it may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in any such event, it shall not be or become liable in any way or to any person for its failure or refusal to act, and it shall be entitled to continue so to refrain from acting until:
(a) the rights of all Parties shall have been fully and finally adjudicated by a court of competent jurisdiction; or
(b) all differences shall have been adjusted and all doubt resolved by agreement among all of the interested persons, and it shall have been notified thereof in writing signed by all such persons.
Article 7
DUE DILIGENCE INVESTIGATION
7.1 Due diligence. Each of the Parties shall forthwith conduct such further due diligence examination of the other Party as it deems appropriate.
7.2 Confidentiality. 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 of Articles "8" and "9" 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 Parties, 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.
Article 8
NON-DISCLOSURE
8.1 Non-disclosure. 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:
(a) the fact or existence of this Agreement or discussions and/or negotiations between them involving, inter alia, possible business transactions;
(b) the possible substance or content of those discussions;
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(c) the possible terms and conditions of any proposed transaction;
(d) any statements or representations (whether verbal or written) made by either Party in the course of or in connection with those discussions; or
(e) 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 or the policies of any applicable stock exchanges, pursuant to any order of a Court or on a "need to know" basis to each of the Parties' respective professional advisors. In this regard, and owing to the agreed upon Standstill and the sensitivities surrounding the proposed completion of the Concentric Acquisition which is a condition precedent to the Closing of this Acquisition, the Parties agree to use their reasonable commercial efforts to delay any announcement respecting either this Agreement or the proposed Acquisition until such time as each of the Purchaser and Concentric are able to enter into a definitive agreement respecting the Concentric Acquisition; which is presently expected to occur within 60 calendar days of the Effective Date.
8.2 Documentation. Any document or written material generated by either Party in the course of, or in connection with, the due diligence investigations conducted pursuant to this Agreement shall be marked or deemed "Confidential" and shall be treated by each Party as a trade secret of the other Parties. Upon termination of this Agreement prior to Closing all copies of any and all documents obtained by any Party from any other Party herein, whether or not marked "Confidential", shall be returned to the other Party forthwith.
Article 9
PROPRIETARY INFORMATION AND
ADDITIONAL OBLIGATIONS OF THE PARTIES
9.1 Confidential Information. Each Party acknowledges that any and all information which a Party may obtain from, or have disclosed to it, about the other Parties constitutes valuable trade secrets and proprietary confidential information of the other Parties (collectively, the "Confidential Information"). No such Confidential Information shall be published by any Party without the prior written consent of the other Party, however, such consent in respect of the reporting of factual data shall not be unreasonably withheld, and shall not be withheld in respect of information required to be publicly disclosed pursuant to applicable securities or corporation laws or the policies of any applicable stock exchange. Furthermore, each Party undertakes not to disclose the Confidential Information to any third party without the prior written approval of the other Party and to ensure that any third party to which the Confidential Information is disclosed shall execute an agreement and undertaking on the same terms as contained herein.
9.2 Exclusions to Confidential Information. The term Confidential Information shall not include any information which:
(a) was in the possession of Party who received the information from the other Party at the time of receipt from the other Party;
(b) at the time of disclosure by one Party to the other Party, the information is, or thereafter becomes, part of the public domain;
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(c) is disclosed to the Party who received the information by a third party, which disclosure does not breach a confidentiality obligation owed to the other Party by the third party; or
(d) is independently developed by a Party or by any of its subsidiaries, affiliates, associated or related companies, entirely without reference to the information.
9.3 Exceptions to Non-disclosure....Notwithstanding section "9.1" or any other provision of this Agreement, the obligation of the Parties not to publish or disclose any Confidential Information are as follows:
(a) the Confidential Information may be disclosed to affiliates of the Parties and the directors, officers, employees, consultants, contractors, agents, representatives, advisors, accountants, auditors of the Parties or their respective affiliates or other parties acting on behalf of the Parties or their respective affiliates (collectively referred to as "Representatives") solely to assist that Party in conducting due diligence investigations and for the purpose of the Acquisition, and to those of the Representatives who need to know, or have access to, the Confidential Information for the purpose of the Acquisition;
(b) each Party shall require its affiliates to agree to be bound by the terms of this Agreement and, before permitting a Representative to examine the Confidential Information, that Party shall require such Representative to agree to be bound by the terms of this Agreement;
(c) each Party agrees (i) that it is responsible for (A) any breach or threatened breach of this Agreement by any of its affiliates or any Representative, and (B) any unauthorized use or disclosure of any Confidential Information by any affiliate of such Party or any Representative, (ii) to take all reasonable measures (including, but not limited to, Court proceedings) to restrain such affiliates and Representatives from disclosure or improper use of the Confidential Information or from breaching or threatening to breach any other provision of this Agreement, and (iii) that such Party will not be required to first assert a claim against any of such persons as a condition of seeking or obtaining a remedy against the Party who received the Confidential Information; and
(d) disclosure of the Confidential Information may be made to any other persons to whom the Party who received the Confidential Information may specifically consent, in advance, in writing from time to time, provided that this person first gives its undertaking to the Parties to be bound by this Agreement.
9.4 Impact of breach of confidentiality. The Parties acknowledge that the Confidential Information is important to the respective businesses of each of the Parties and that, in the event of disclosure of the Confidential Information, except as authorized hereunder, the damage to each of the Parties, or to either of them, may be irreparable. For the purposes of the foregoing sections the Parties recognize and hereby agree that a breach by any of the Parties of any of the covenants therein contained would result in irreparable harm and significant damage to the other Party that would not be adequately compensated for by monetary award. Accordingly, the Parties agree that in the event of any such breach, in addition to being entitled as a matter of right to apply to a Court of competent equitable jurisdiction for relief by way of restraining order, injunction, decree or otherwise as may be appropriate to ensure compliance with the provisions hereof, any such Party will also be liable to the other Party, as liquidated damages, for an amount equal to the amount received and earned by such Party as a result of and with respect to any such breach. The Parties also acknowledge and agree that if any of the aforesaid restrictions, activities, obligations or periods are considered by a Court of competent jurisdiction as being unreasonable, the Parties agree that said Court shall have authority to limit such restrictions, activities or periods as the Court deems proper in the circumstances. In addition, the Parties further acknowledge and agree that all restrictions or obligations in this Agreement are necessary and fundamental to the protection of the respective businesses of each of the Parties and are reasonable and valid, and all defenses to the strict enforcement thereof by either of the Parties are hereby waived by the other Party.
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9.5 Compliance with applicable laws. The Parties will comply with all United States, Canadian and foreign laws, whether federal, provincial or state, applicable to their respective duties hereunder and, in addition, hereby represent and warrant that any information which they may provide to any person or company hereunder will, to the best of their respective knowledge, information and belief, be accurate and complete in all material respects and not misleading, and will not omit to state any fact or information which would be material to such person or company.
9.6 Opinions, reports and advice of the Vendor. The Vendor hereby acknowledges and agrees that all written and oral opinions, reports, advice and materials provided by the Vendor to the Purchaser in connection with Acquisition contemplated herein are intended solely for the Purchaser's benefit and for the Purchaser's use only, and that any such written and oral opinions, reports, advice and information are the exclusive property of the Purchaser. In this regard the Vendor hereby covenants and agrees that the Purchaser may, with the prior written consent of the author of the opinion, report, advice or materials, utilize any such opinion, report, advice and materials for any other purpose whatsoever and, furthermore, may reproduce, disseminate, quote from and refer to, in whole or in part, at any time and in any manner, any such opinion, report, advice and materials in the Purchaser's sole and absolute discretion. The Vendor further covenants and agrees that no public references to the Purchaser or disclosure of the Vendor's role in respect of the Purchaser may be made by the Vendor without the prior written consent of the Purchaser in each specific instance and, furthermore, that any such written opinions, reports, advice or materials shall, unless otherwise required by the Purchaser, be provided by the Vendor to the Purchaser in a form and with such substance as would be acceptable for filing with and approval by any regulatory authority having jurisdiction over the affairs of the Purchaser from time to time.
Article 10
ASSIGNMENT AND VARIATIONS
10.1 Assignment. Save and except as provided herein, no Party may sell, assign, pledge or mortgage or otherwise encumber all or any part of its respective interest herein without the prior written consent all of the other Party.
10.2 Amendment. This Agreement and any provision thereof may only be amended in writing and only by duly authorized signatories of each of the respective Parties.
10.3 Variation in the terms of this Agreement upon review. It is hereby acknowledged and agreed by each of the Parties that where any variation in the terms and/or conditions of this Agreement is reasonably required by any of the regulatory authorities or any applicable stock exchange as a condition of their respective "Regulatory Approval" to any of the terms and conditions of this Agreement, any such reasonable variation, having first been notified to all Parties, will be deemed to be accepted by each of the Parties and form part of the terms and conditions of this Agreement. If any such Party, acting reasonably, deems any such notified variation unreasonable, that Party may, in its sole and absolute discretion, and within a period of not greater than 10 calendar days from its original notification and at its cost, make such further applications or submissions to the relevant regulatory authority as it considers necessary in order to seek an amendment to any such variation; provided, however, that the final determination by any such regulatory authority or stock exchange to any such application or submission by such objecting Party will be deemed binding upon such Party who must then provide notification to all other Parties as provided for hereinabove.
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Article 11
FORCE MAJEURE
11.1 Events. If any Party is at any time prevented or delayed in complying with any provisions of this Agreement by reason of strikes, walk-outs, labour shortages, power shortages, fires, wars, acts of God, earthquakes, storms, floods, explosions, accidents, protests or demonstrations by environmental lobbyists or native rights groups, delays in transportation, breakdown of machinery, inability to obtain necessary materials in the open market, unavailability of equipment, governmental regulations restricting normal operations, shipping delays or any other reason or reasons beyond the control of that Party, 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.
11.2 Notice. A Party shall, within seven calendar days, give notice to the other Parties of each event of force majeure under section "11.1" hereinabove, and upon cessation of such event shall furnish the other Parties 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.
Article 12
ARBITRATION
12.1 Matters for Arbitration. The Parties agree that all questions or matters in dispute with respect to this Agreement shall be submitted to arbitration pursuant to the terms hereof.
12.2 Notice. 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 five 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 five calendar days the Party who gave such notice may proceed to refer the dispute to arbitration as provided in section "12.3" hereinbelow.
12.3 Appointments. The Party desiring arbitration shall appoint one arbitrator, and shall notify the other Party of such appointment, and the other Party shall, within five 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 five calendar days after receiving notice of the appointment of the first arbitrator, or 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 British Columbia Commercial Arbitration Act (the "Arbitration Act"). Except as specifically otherwise provided in this section, the arbitration herein provided for shall be conducted in accordance with such 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, Canada, 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.
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12.4 Award. 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.
Article 13
DEFAULT AND TERMINATION
13.1 Default. The Parties agree that if any Party is in default with respect to any of the provisions of this Agreement (herein called the "Defaulting Party"), the non-defaulting Party (herein called the "Non-Defaulting Party") shall give notice to the Defaulting Party specifying the nature of such default, and within five calendar days after its receipt of such notice, the Defaulting Party shall either:
(a) cure such default, 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.
13.2 Arbitration. 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 "12" hereinabove.
13.3 Curing the Default. 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 this Agreement and this Agreement will be of no further force and effect other than the obligations set forth under Articles "8" and "9" hereinabove.
13.4 Termination. In addition to the foregoing it is hereby acknowledged and agreed by the Parties that this Agreement will be immediately terminated, unless otherwise extended in accordance with section "5.2" hereinabove, in the event that:
(a) the entire Ratification is not received within one business day of the Effective Date;
(b) either of the Parties has not either satisfied or waived each of their respective conditions precedent prior to the Subject Removal Date in accordance with the provisions of Article "4" hereinabove;
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(c) either of the Parties has failed to deliver or caused to be delivered any of their respective documents required to be delivered by Articles "4", "5" and "6" hereinabove prior to each of the Subject Removal Date and the Closing Date in accordance with the provisions of Articles "4", "5" and "6";
(d) the Closing has not occurred on or before July 31, 2011 or such other date as the Parties may agree to in accordance with section "5.2" hereinabove; or
(e) by agreement in writing by each of the Parties;
and in such event this Agreement will be terminated and be of no further force and effect other than the obligations under Articles "8" and "9" hereinabove.
Article 14
INDEMNIFICATION AND LEGAL PROCEEDINGS
14.1 Indemnification. Each of the Parties agrees to indemnify and save harmless the other Party and including, where applicable, their respective affiliates, directors, officers, employees and agents (each such party being an "Indemnified Party") harmless from and against any and all losses, claims, actions, suits, proceedings, damages, liabilities or expenses of whatever nature or kind, including any investigation expenses incurred by any Indemnified Party, to which an Indemnified Party may become subject by reason of the terms and conditions of this Agreement.
14.2 No indemnification. This indemnity will not apply in respect of an Indemnified Party in the event and to the extent that a court of competent jurisdiction in a final judgment shall determine that the Indemnified Party was grossly negligent or guilty of willful misconduct.
14.3 Claim of indemnification. The Parties agree to waive any right they might have of first requiring the Indemnified Party to proceed against or enforce any other right, power, remedy, security or claim payment from any other person before claiming this indemnity.
14.4 Notice of claim. In case any action is brought against an Indemnified Party in respect of which indemnity may be sought against the other Party, the Indemnified Party will give the relevant Party prompt written notice of any such action of which the Indemnified Party has knowledge and such Party will undertake the investigation and defense thereof on behalf of the Indemnified Party, including the prompt consulting of counsel acceptable to the Indemnified Party affected and the payment of all expenses. Failure by the Indemnified Party to so notify shall not relieve any Party of such Party's obligation of indemnification hereunder unless (and only to the extent that) such failure results in a forfeiture by any Party of substantive rights or defenses.
14.5 Settlement. No admission of liability and no settlement of any action shall be made without the consent of each of the Parties and the consent of the Indemnified Party affected, such consent not to be unreasonable withheld.
14.6 Legal proceedings. Notwithstanding that the relevant Party will undertake the investigation and defense of any action, an Indemnified Party will have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel will be at the expense of the Indemnified Party unless:
(a) such counsel has been authorized by the relevant Party;
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(b) the relevant Party has not assumed the defense of the action within a reasonable period of time after receiving notice of the action;
(c) the named parties to any such action include any Party and the Indemnified Party shall have been advised by counsel that there may be a conflict of interest between any Party and the Indemnified Party; or
(d) there are one or more legal defenses available to the Indemnified Party which are different from or in addition to those available to any Party.
14.7 Contribution. If for any reason other than the gross negligence or bad faith of the Indemnified Party being the primary cause of the loss claim, damage, liability, cost or expense, the foregoing indemnification is unavailable to the Indemnified Party or insufficient to hold them harmless, the relevant Party shall contribute to the amount paid or payable by the Indemnified Party as a result of any and all such losses, claim, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by any Party on the one hand and the Indemnified Party on the other, but also the relative fault of the Parties and other equitable considerations which may be relevant. Notwithstanding the foregoing, the relevant Party shall in any event contribute to the amount paid or payable by the Indemnified Party, as a result of the loss, claim, damage, liability, cost or expense (other than a loss, claim, damage, liability, cost or expenses, the primary cause of which is the gross negligence or bad faith of the Indemnified Party), any excess of such amount over the amount of the fees actually received by the Indemnified Party hereunder.
Article 15
NOTICE
15.1 Notice. Each notice, demand or other communication required or permitted to be given under this Agreement shall be in writing and shall be sent by prepaid registered mail deposited in a post office addressed 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 registered mail as aforesaid, shall be deemed conclusively to be the third calendar day after the same shall have been so mailed, or 15 calendar days in the case of an addressee with an address for service in a country other than a country in which the Party giving the notice, demand or other communication resides, except in the case of interruption of postal services for any reason whatsoever, in which case the date of receipt shall be the date on which the notice, demand or other communication is actually received by the addressee.
15.2 Change of address. 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.
Article 16
GENERAL PROVISIONS
16.1 Entire agreement. This Agreement constitutes the entire agreement to date between 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.
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16.2 Enurement. This Agreement will enure to the benefit of and will be binding upon the Parties and their respective successors and assigns.
16.3 Schedule. The Schedule to this Agreement is hereby incorporated by reference into this Agreement in its entirety.
16.4 Time of the essence. Time will be of the essence of this Agreement.
16.5 Representation and costs. It is hereby acknowledged by each of the Parties that XxXxxxxx LLP, Lawyers - Patent & Trade Xxxx Agents, act solely for the Purchaser and, correspondingly, that the Vendor has been required by each of XxXxxxxx LLP and the Purchaser to obtain independent legal advice with respect to its review and execution of this Agreement. In addition, it is hereby further acknowledged and agreed by the Parties that XxXxxxxx LLP, and certain or all of its principal owners or associates, from time to time, may have both an economic or shareholding interest in and to the Purchaser and/or a fiduciary duty to the same arising from either a directorship, officership or similar relationship arising out of the request of the Purchaser for certain of such persons to act in a similar capacity while acting for the Purchaser as counsel. Correspondingly, and even where, as a result of this Agreement, the consent of each Party to the role and capacity of XxXxxxxx LLP, and its principal owners and associates, as the case may be, is deemed to have been received, where any conflict or perceived conflict may arise, or be seen to arise, as a result of any such capacity or representation, each Party acknowledges and agrees to, once more, obtain independent legal advice in respect of any such conflict or perceived conflict and, consequent thereon, XxXxxxxx LLP, together with any such principal owners or associates, as the case may be, shall be at liberty at any time to resign any such position if it or any Party is in any way affected or uncomfortable with any such capacity or representation. Each Party to this Agreement will also bear and pay its own costs, legal and otherwise, in connection with its respective preparation, review and execution of this Agreement and, in particular, that the costs involved in the preparation of this Agreement, and all documentation necessarily incidental thereto, by XxXxxxxx LLP, shall be at the cost of the Purchaser.
16.6 Applicable law. The situs of this Agreement is Vancouver, British Columbia, Canada, and for all purposes this Agreement will be governed exclusively by and construed and enforced in accordance with the laws and Courts prevailing in the Province of British Columbia, Canada, together with the federal laws of Canada applicable therein.
16.7 Further assurances. The Parties hereby, jointly and severally, covenant and agree to forthwith, upon request, execute and deliver, or cause to be executed and delivered, such further and other deeds, documents, assurances and instructions as may be required by the Parties or their respective counsel in order to carry out the true nature and intent of this Agreement.
16.8 Invalid provisions. If any provision of this Agreement is at any time unenforceable or invalid for any reason it will be severable from the remainder of this Agreement and, in its application at that time, this Agreement will be construed as though such provision was not contained herein and the remainder will continue in full force and effect and be construed as if this Agreement had been executed without the invalid or unenforceable provision.
16.9 Currency. Unless otherwise stipulated, all payments required to be made pursuant to the provisions of this Agreement and all money amount references contained herein are in lawful currency of the United States.
16.10 Severability and construction. 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 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 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).
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16.11 Captions. The captions, section numbers, Article numbers and Schedule letter 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.
16.12 Counterparts. This Agreement may be signed by the Parties in as many counterparts as may be necessary and, if required, by facsimile, each of which so signed being deemed to be an original, and such counterparts together shall constitute one and the same instrument and, notwithstanding the date of execution, will be deemed to bear the Effective Date as set forth on the front page of this Agreement.
16.13 No partnership or agency. 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.
16.14 Consents and waivers. No consent or waiver expressed or implied by either Party in respect of any breach or default by any other Party 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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IN WITNESS WHEREOF each of the Parties has executed this Agreement by its duly authorized signatory as of the Effective Date as set forth on the front page of this Agreement.
GLOBAL URANIUM CORP.,
Per:
/s/ Xxxxxx Xxxxx
Authorized Signatory
URANIUM ENERGYCORP.,
Per:
/s/ Xxxx Xxxxxx
Authorized Signatory
__________
Schedule A
This is Schedule "A" to that certain Acquisition Agreement as entered into between the Vendor (Global Uranium Corp.) and the Purchaser (Uranium Energy Corp.).
Option Agreement
Refer to the materials attached hereto.
__________
