SHARE PURCHASE AGREEMENT
EXHIBIT 23.14
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SHARE PURCHASE AGREEMENT
THIS AGREEMENT dated for reference September 3, 2003 is made
BETWEEN:
NORTHERN ORION RESOURCES INC., (“XXX”) a company incorporated under the laws of British Columbia and GMA HOLDINGS S.A., (“GMA”) a company incorporated under the laws of the Cayman Islands,
(collectively the “Vendor” which term when used herein shall mean jointly and severally, except where the case may otherwise require)
AND:
LUMINA COPPER CORP., a company incorporated under the laws of British Columbia,
(the “Purchaser”)
WHEREAS:
X. XXX is the registered and beneficial owner of 119 shares (the “XXX Shares”) of Minera San Jorge S.A. (the “Company”) and GMA is the holder of one share of the Company (the “GMA Share”);
B. The XXX Shares and the GMA Share collectively constitute 100% of the issued and outstanding shares of the Company;
X. XXX has agreed to sell to the Purchaser and the Purchaser has agreed to purchase the XXX Shares and GMA has agreed to sell to the Purchaser and the Purchaser has agreed to purchase the GMA Shares.
TERMS OF AGREEMENT
In consideration of the premises, covenants and agreements contained in this Agreement, the parties agree with each other as follows:
| 1. | DEFINITIONS |
|
| In this Agreement: | ||
| (a) | “Agreement” means this agreement
and all Schedules. |
|
| (b) | "AMD Agreement" means the agreement
between Argentina Mineral Development S.A. and Grupo Minera Aconcagua
S.A. dated March 2, 1999, attached as Schedule 2 hereto. |
|
| (c) | “Closing” shall have the meaning
ascribed thereto in Section 10.1. |
|
| (d) | “Closing Date” means the earlier
of three (3) business days after receipt of all necessary regulatory approvals
and 30 days from the date hereof or such other date as may be agreed in
writing by the parties. |
|
| (e) | “Environmental Laws” means
any applicable statute, bylaw or regulation relating to protection of
the environment or any lawful order under any of them and any common law
rule giving rise to liability in connection with pollution. |
|
| (f) | “Financial Statements” means
the financial statements of the Company attached to this Agreement as
Schedule 1, for the year ended December 31, 2002. |
|
| (g) | “Hazardous Materials” means
any contaminant, pollutant, waste, hazardous material, toxic substance,
radioactive substance, petroleum and its derivatives and by products and
other hydrocarbons, dangerous substances and dangerous goods, all as identified
or defined in Environmental Laws applicable to the Company and the Property. |
|
| (h) | “Property” means the property
as described as the GMA properties in Schedule A to the AMD Agreement. |
|
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| (i) | “Purchase Price” means the
sum of US$300,000 payable by the Purchaser to the Vendor in accordance
with the terms of this Agreement. |
|
| (j) | “Schedules” means the schedules
referred to in Section 2. |
|
| (k) | “Shares” means the GMA Shares
and the XXX Shares. |
|
| (l) | “Technical Reports and Data”
means all reports and data pertaining to the Property which are in the
possession and control of the Company. |
|
| (m) | “Time of Closing” means 10:00
a.m. (Vancouver time) on the Closing Date. |
|
| Definitions herein apply to the Schedules. | ||
| 2. | SCHEDULES |
|
| The following schedules are attached to and incorporated in this Agreement by reference and deemed to be part of this Agreement: | ||
Schedule 1 – Financial Statements
of the Company Schedule 2 – AMD Agreement |
||
| 3. | PURCHASED SHARES AND PURCHASE PRICE | |
| 3.1 | Purchase Price |
|
Subject to the terms and
conditions of this Agreement and based on the representations and warranties
of the Vendor set forth in this Agreement, on the Closing Date the Vendor
will sell, assign and transfer to the Purchaser and the Purchaser will
purchase from the Vendor all (but not less than all) of the Shares for
the Purchase Price, payable as follows: |
||
| a) | US$200,000 by certified cheque or bank
draft drawn on a Canadian chartered bank on the Closing Date; and |
|
| b) | US$100,000 in common shares of the Purchaser
(the "Consideration Shares") at a deemed price per share valued
on the basis of the 20 day average trading price of such shares for the
period ending September 4, 2003. |
|
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Any payment required hereunder
may be made by the Purchaser to the Vendor or either of them and any such
payment to either shall be deemed a payment to both or to the required
recipient, as the case may be. |
||
| 3.2 |
Consideration Shares |
|
The Consideration Shares
will be validly issued as fully paid and non-assessable shares in the
capital of the Purchaser, shall have a hold period not to exceed four
months and be listed for trading on the TSX Venture Exchange (“TSX
Venture”). |
||
4. |
VENDOR’S REPRESENTATIONS
AND WARRANTIES |
|
The Vendor represents and
warrants to the Purchaser as follows, such representations and warranties
to be true and correct as of the date of this Agreement and on the Closing
Date as if they were made on the Closing Date (except insofar as such
representations and warranties are stated to be given as of a particular
date): |
||
4.1 |
Corporate and Share Representations |
|
(a) |
The Company is a company duly incorporated
under the laws of Argentina, is not a reporting or public company, or
listed on any stock exchange and is a valid and subsisting company in
good standing in accordance with applicable law. |
|
(b) |
The Company was established for the
purpose of owning and managing concessions in Argentina, has the corporate
power to own the assets owned by it, carry on the business carried on
by it and to the knowledge of the Vendor has all licences requisite to
carry on its business as presently carried on. |
|
(c) |
The authorized capital of the Company
consists of 120 common, nominative, non-endorsable, single vote shares
with a nominal par value of Argentine $1.00, of which the Shares are the
only shares of the Company issued and outstanding. |
|
(d) |
The GMA Shares and the XXX Shares are
validly issued and outstanding as fully paid and non-assessable shares
in the capital of the Company. |
|
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| (e) | Other than to change the name of the
Company from Minera Tres Hermanas S.A. to its current name the memorandum
and articles and(or) constating documents, as the case may be, of the
Company have not been altered since incorporation of the Company. |
|
| (f) | The Vendor owns the Shares as legal
and beneficial owner, free and clear of all liens, claims, charges and
encumbrances. |
|
| (g) | Subject to the AMD Agreement, the Vendor
has due and sufficient right and authority to enter into this Agreement
on the terms and conditions set forth in this Agreement and to transfer
the legal and beneficial title to and ownership of the Shares to the Purchaser
and this Agreement is enforceable against the Vendor in accordance with
its terms. |
|
| (h) | Other than as set forth in the AMD Agreement
and in this Agreement no person, firm or corporation has any agreement
or option or any right capable of becoming an agreement to purchase or
otherwise acquire the Shares or any of the unissued shares in the capital
of the Company or any other interest in the Company. |
|
| 4.2 | Financial and Tax Representations | |
| (a) | To the knowledge of the Vendor and subject
to Section 4.3 hereof, the Financial Statements are true and correct in
every material respect and present fairly the assets, liabilities and
financial position of the Company as at December 31, 2002 and the results
of operations to that date and there has been no material change to those
Financial Statements between the period January 1, 2003 and the date hereof. |
|
| (b) | The Company has not guaranteed, or agreed
to guarantee, any debt, liability or other obligation of any person, firm
or corporation. |
|
| (c) | Since December 31, 2002 the business of the Company has been carried on in the ordinary course. | |
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| (d) | To the best of the Vendor’s
knowledge, all material transactions of the Company have been promptly
and properly recorded or filed in or with its books and records and to
the Vendors knowledge the minute books of the Company contain records
of all material meetings and proceedings of shareholders and directors
of the Company required to be contained therein. |
||
| (e) | To the knowledge of the
Vendor all tax returns and reports of the Company required by law to be
filed before the date of this Agreement have been filed and, to the best
of the Vendor’s knowledge, are true, complete and correct and all
taxes and other government charges have been paid or accrued and to the
best of the Vendor’s knowledge there will be no unpaid taxes or government
charges in respect of the operations of the Company for the period ending
on the Closing Date. |
||
| (f) | To the best of the Vendor’s
knowledge, adequate provision has been made for taxes payable for each
current period for which tax returns are not yet required to be filed
by the Company, and there are no waivers or other arrangements providing
for an extension of time for the filing of any tax return, or payment
of any tax, government charge or deficiency, by the Company. |
||
| (g) | To the best of the Vendor’s
knowledge, the Company has been reviewed, determined and assessed for
all applicable income taxes, other like taxes, other taxes payable including,
without limitation, value added type taxes for all years to and including
the fiscal year end of the Company ended December 31, 2002. |
||
| (h) | The Company has not, prior
to the date hereof: |
||
(i) |
Acquired or had the use of any property
from a person with whom the Company was not dealing at arm’s length;
or |
||
(ii) |
Disposed of anything to a person with
whom the Company was not dealing with at arm’s length for proceeds
less than fair market value thereoF. |
||
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| (i) | To the best of the Vendor’s
knowledge the Company has made all elections required to be made under
the applicable income tax legislation in connection with any distributions
by the Company and all such elections were true and correct. |
||
| (j) | To the best of the Vendor’s
knowledge, there are no amounts outstanding and unpaid for which the Company
has previously claimed a deduction under the applicable income tax legislation; |
||
| 4.3 | Property Representations | ||
| (a) | To the knowledge of the
Vendor all steps necessary have been taken to transfer to the Company
title to the claims referred to in Schedule A of the AMD Agreement as
San Xxxxx I and San Xxxxx XX as contemplated in the AMD Agreement, and
the Company has not charged or granted to any other person any right,
title or interest in such claims, other than as contemplated by the AMD
Agreement. |
||
| (b) | The Purchaser expressly
acknowledges and agrees that: |
||
(i) |
the Shares are being sold by the Vendor
to the Purchaser on an “as is where is” basis and that except
as contained herein, the Vendor has made and makes no representations
or warranties of any kind whatsoever, whether express or implied, with
respect to the Shares, the Company or the Property including and without
limiting the generality of the foregoing as to the completeness and accuracy
of Technical Reports and Data respecting the Property; |
||
(ii) |
without limiting the generality of the
foregoing and notwithstanding any other representation or warranty contained
herein, the Vendor has made and makes no representation or warranties
of any kind whatsoever, whether express or implied, with respect to environmental
matters, Environmental Laws or Hazardous Materials with respect to the
Company or the Property; |
||
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(iii) |
no oral or written information
or advice given by the Vendor or any party acting on behalf of the Vendor,
shall create a warranty or representation or in any way increase the scope
of the representations and warranties contained in this Agreement; |
|||
(iv) |
the Purchaser has: |
|||
(A) |
been given unrestricted access to the
records of the Company, the Property and the Technical Reports and Data; |
|||
(B) |
been given the opportunity to conduct
and has conducted due diligence in respect of the Shares, the Company,
the Property and Technical Reports and Data to its satisfaction; and |
|||
(C) |
has made its own assessment of the merit
of the Property, Technical Reports and Data and the Shares. |
|||
| 4.4 | Contractual Representations | |||
| (a) | To the Vendor’s actual
knowledge and subject to the proviso that the Vendor has made no inquiry
and has not conducted any searches to ascertain the following, the Vendor
has not received written notice of any administrative or judicial judgment,
order, decree or proceeding alleging a violation of Environmental Laws
in respect of the Property. |
|||
| (b) | The Company has no pension
plan, profit sharing plan, bonus plan, group insurance, deferred compensation
plans, or similar plans, contracts or agreements. |
|||
| (c) | There are no employees of
the Company and the Company has never been party to any collective agreement. |
|||
| (d) | Other than the AMD Agreement
there are no material contracts of the Company. |
|||
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| 4.5 | General Vendor Representations Unless otherwise referred to herein: |
|
(a) |
The Company does not carry on business
anywhere other than Argentina. |
|
(b) |
The execution and delivery of this Agreement
and all documents related to the Closing of the transaction contemplated
in this Agreement have been or will on the Closing Date have been duly
authorized by all necessary and appropriate corporate proceedings of both
the Company and the Vendor. |
|
(c) |
To the actual knowledge of the Vendor
and subject to the proviso that the Vendor has made no inquiry and has
not conducted any searches to ascertain the following, no litigation,
claim or proceeding has been commenced against the Company which would
materially and adversely affect the interest of the Company in the Property. |
|
| 5. | PURCHASER’S REPRESENTATIONS
AND WARRANTIES |
|
| 5.1 | The Purchaser represents
and warrants that: |
|
(a) |
The Purchaser is a company duly incorporated
under the Company Act of British Columbia, is a reporting issuer
not in default, and is a valid and subsisting company in good standing
with respect to the filing of annual reports with the Office of the Registrar
of Companies of British Columbia. |
|
(b) |
Neither the making of this Agreement,
the completion of the transactions contemplated by it, nor the performance
of or compliance with its terms will violate the Memorandum or Articles
of the Purchaser or any agreement to which the Purchaser is a party; nor
will they result in the creation or imposition of any lien, claim, charge,
encumbrance or restriction of any nature in favour of a third party upon
or against the assets of the Company or the Shares. |
|
(c) |
The Purchaser is not a non-Canadian
as that term is defined in the Investment Canada Act. |
|
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(d) |
The execution and delivery of this Agreement and all documents related to the Closing of the transaction contemplated in this Agreement have been or will on the Closing Date have been duly authorized by all necessary and appropriate corporate proceedings of the Purchaser. | |
5.2 |
Purchaser’s Authority |
|
The Purchaser has legal
capacity and due and sufficient right and authority to enter into this
Agreement on the terms and conditions set forth in this Agreement and
to perform its obligations under this Agreement. |
||
6. |
VENDOR’S COVENANTS |
|
The Vendor covenants and
agrees with the Purchaser as follows: |
||
6.1 |
Possession |
|
At or before the Time of
Closing, the Vendor will deliver to the Purchaser’s representative
in Argentina possession of all books, records, book accounts and lists
of suppliers of the Company and all other documents, files, records and
other data, financial or otherwise, relating to the Company, including
without limitation the Technical Reports and Data. Notwithstanding the
foregoing, the Vendor will be entitled to retain all books and records
reasonably necessary to enable the Vendor to prepare the financial statements
and tax return as described in Section 6.4 hereof. |
||
6.2 |
Interim Management—Positive
Covenants |
|
From the date of this Agreement
to the Closing Date, the Vendor will cause the Company to: |
||
(a) |
Provided the Vendor, its auditors and its authorized persons shall keep same confidential unless otherwise required by law or regulation, at any time up to the Closing Date, permit the Purchaser, and its auditors, solicitors and other authorized persons, to make such investigation of the Company and of its financial and legal condition as the Purchaser deems necessary or advisable to | |
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familiarize itself with such matters
and to have reasonable access to all records, documents and other information
related to the Company, including all working papers (internal and external)
and details of accounts and inventories prepared, obtained or used in
connection with the preparation of the Financial Statements; |
||
(b) |
carry on the business of the Company
in the ordinary course, in a prudent, businesslike and efficient manner;
and |
|
(c) |
take reasonable care to protect and
safeguard the assets of the Company. |
|
6.3 |
Interim Management-Negative
Covenants |
|
From the date of this Agreement
to the Closing Date, the Vendor will not permit the Company, without the
prior written consent of the Purchaser, to: |
||
(a) |
purchase or sell, consume or otherwise
dispose of any of its assets except in the ordinary course of business; |
|
(b) |
enter into any contract or assume or
incur any liability except in the ordinary course of business and which
is not material; |
|
(c) |
settle any account receivable of a material
nature at less than face value net of the reserve for that account; |
|
(d) |
waive or surrender any material right; |
|
(e) |
discharge, satisfy or pay any mortgage,
pledge, deed of trust, lien, claim, encumbrance, charge, obligation or
liability except in the ordinary course of business; or |
|
(f) |
make any capital expenditure or commitment
for any capital expenditure, distributions, share issuances or undertake
any activity which will adversely affect the Company. |
|
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6.4 |
Closing Financial Statements
and Tax Return |
|
| Within 60 days after the
Closing Date, the Vendor will deliver to the Purchaser unaudited financial
statements of the Company made up as of the Closing Date. |
||
7. |
PURCHASER’S COVENANTS |
|
7.1 |
Records |
|
The Purchaser will maintain
in safekeeping for 10 years following the Closing Date all financial records
of the Company which are in the possession of the Company on the Closing
Date and which relate to the period before the Closing Date and will allow
the Vendor access thereto if the Purchaser makes any claim against the
Vendor relating to this Agreement, if the Vendor is investigated or audited
by a taxation or other authority or for any other reasonable bona fide
business purpose relating to the ownership or sale of the Company. |
||
7.2 |
Stamp Duties and Taxes |
|
The Purchaser will be responsible
for and shall pay all taxes, duties and other charges imposed by any governmental
or other authority having jurisdiction in connection with the sale of
the Shares as contemplated hereunder excluding only taxes on income or
capital gains of the Vendor. |
||
8. |
PURCHASER’S CONDITIONS
OF CLOSING |
|
8.1 |
Conditions |
|
The obligations of the Purchaser
under this Agreement are subject to the following conditions for the exclusive
benefit of the Purchaser being fulfilled in all material respects in the
reasonable opinion of the Purchaser at the Time of Closing or waived by
the Purchaser at or before the Time of Closing: |
||
(a) |
the representations and warranties of
the Vendor contained in this Agreement will be true and correct in all
material respects on and as of the Closing Date; |
|
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(b) |
the Vendor will have complied
in all material respects with all covenants and agreements in this Agreement
agreed to be performed or caused to be performed by it on or before the
Closing Date; |
||
(c) |
no action or proceeding
against the Company is pending or threatened by any person, company, firm,
governmental authority, regulatory body or agency to: |
||
(i) |
enjoin or prohibit the purchase and
sale of the Shares contemplated by this Agreement or the right of the
Purchaser to own the Shares; |
||
(ii) |
enjoin or prohibit the right of the
Company to conduct its operations in the ordinary course as its operations
have been carried on in the past; or |
||
(d) |
constitute a material adverse
change to or effect on the Company; and |
||
(e) |
the Vendor shall have completed
satisfactory financial, legal and technical due diligence which shall
be completed on or before 30 days from the date this Agreement is signed. |
||
8.2 |
Release of Obligations |
||
If any of the conditions
in Section 8.1 are not fulfilled or waived, the Purchaser, on the Closing
Date may rescind this Agreement by notice in writing to the Vendor. In
such event, the Purchaser and the Vendor shall be released from all obligations
under this Agreement (subject only to the survival of Section 11.11. and
of the Confidentiality Agreement dated January 15, 2003). |
|||
8.3 |
Waiver |
||
The conditions in Section
8.1 may be waived in whole or in part without prejudice to any right of
rescission or any other right in the event of the non-fulfilment of any
other condition or conditions. A waiver will be binding only if it is
in writing. |
|||
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9. |
VENDOR’S CONDITIONS
OF CLOSING |
|
9.1 |
Conditions |
|
The obligations of the Vendor
under this Agreement are subject to the following conditions for the exclusive
benefit of the Vendor being fulfilled in all material respects in the
reasonable opinion of the Vendor at the Time of Closing or waived by the
Vendor at or before the Time of Closing or agreed by the Purchaser and
the Vendor to be indemnified for by the Purchaser: |
||
(a) |
the representations and warranties of
the Purchaser contained in this Agreement will be true and correct in
all material respects on and as of the Closing Date; |
|
(b) |
the Purchaser will have complied in
all material respects with all covenants and agreements in this Agreement
agreed to be performed or caused to be performed by it on or before the
Closing Date; |
|
(c) |
no action or proceeding against the
Purchaser will be pending or threatened by any person, company, firm,
governmental authority, regulatory body or agency to enjoin or prohibit
the purchase and sale of the Shares contemplated by this Agreement or
the right of the Purchaser to own the Shares; and |
|
(d) |
the Purchaser has taken all steps as
may be required under applicable law to consummate the transaction herein
contemplated. |
|
9.2 |
Release of Obligations |
|
If any of the conditions
in Section 9.1 are not fulfilled or waived, the Vendor, on the Closing
Date may rescind this Agreement by notice in writing to the Purchaser.
In such event, each of the Vendor and the Purchaser shall be released
from all obligations under this Agreement (subject only to the survival
of Section 11.11. and of the Confidentiality Agreement dated January 15,
2003). |
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9.3 |
Waiver | |
The conditions in Section
9.1 may be waived in whole or in part by the Vendor without prejudice
to any right of rescission or any other right in the event of non-fulfillment
of any other condition or conditions. A waiver will be binding only if
it is in writing. |
||
10. |
CLOSING ARRANGEMENTS | |
10.1 |
Closing Location | |
The closing of the purchase
and sale and the other transactions contemplated by this Agreement (the
“Closing”) will take place at the Time of Closing at the offices
of the Purchaser, Vancouver, or such earlier or later date as the parties
may agree in writing. |
||
10.2 |
Vendor’s Closing Documents | |
At the Closing, the Vendor
will tender to the Purchaser: |
||
| (a) | Resignations or removal in writing of all directors, alternate directors, attorneys in fact and officers of the Company and confirmation of payment of all fees owing to such directors, alternate directors, attorneys in fact and officers and revocation of any powers of attorney granted; | |
| (b) | certified copies of resolutions of the directors of the Company approving cancellation of the current Share certificate representing the Shares and approving the issue of new share certificates representing the Shares in the name of the Purchaser; | |
| (c) | duly executed share certificates representing the Shares in the name of the Purchaser or the Purchaser’s nominee as directed by the Purchaser and a Section 215 under Argentine Law 19,550 notice with respect thereto; | |
| (d) | the register of members of the Company recording that the Purchaser or the Purchaser’s nominee, as the case may be is the holder of all issued and outstanding shares of the Company; | |
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(e) |
all corporate records and books of account
of the Company including minute books, share registers and annual reports;
and |
|
(f) |
the common seal of the Company, if any. |
|
10.3 |
Purchaser’s Closing
Documents |
|
At the Closing, the Purchaser
will tender to the Vendor: |
||
(a) |
An executed form of release and indemnification
in respect of each of the directors and officers of the Company, XXX and
GMA in form and content acceptable to the Vendor. The indemnification
but not the release shall be limited to claims arising on or after the
closing date; |
|
(b) |
a certified copy of a resolution of
the directors of the Purchaser in form satisfactory to the Vendor, acting
reasonably, authorizing the execution and delivery of this Agreement and
the purchase of the Shares; |
|
(c) |
a certified cheque or bank draft payable
to the Vendor for the amount described in Section 3.1(a); and |
|
(d) |
certificates representing the Consideration
Shares. |
|
11. |
GENERAL |
|
11.1 |
Indemnification by the
Purchaser |
|
Provided the Vendor has
fully disclosed all agreements relating to transfer of the Property with
Xx Xxxxxxx Xxxxxxxx, the Purchaser covenants and agrees to indemnify and
save harmless the Vendor from any loss, damage, liability, cost and expense
(including without limitation any tax liability) suffered by the Vendor
directly or indirectly as a result of or arising out of any claim made
by Xxxxxxx Xxxxxxxx in connection with the Purchaser’s acquisition
of the Company and thereby the Property. |
||
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| 11.2 | Survival of Vendor’s Representations |
| The representations, warranties, covenants and agreements of the Vendor contained in this Agreement and in any document or certificate given under this Agreement will survive the Closing of the transactions contemplated by this Agreement for a period of one year only after the Closing Date and thereafter shall be extinguished. | |
| 11.3 | Indemnification by the Vendor |
| The Vendor covenants and agrees to indemnify and save harmless the Purchaser from any loss, damage, liability, cost and expense (including without limitation any tax liability) actually incurred by the Purchaser directly as a result of or arising out of any breach of representation, warranty, covenant or agreement of the Vendor contained in this Agreement. | |
| 11.4 | Survival of Purchaser’s Representations |
| The representations, warranties, covenants and agreements of the Purchaser contained in this Agreement and in any document or certificate given under this Agreement survive the Closing of the transactions contemplated by this Agreement for a period of one year only after the Closing Date and thereafter shall be extinguished. | |
| 11.5 | Notices |
| Any notice, direction or other instrument required or permitted to be given under this Agreement will be in writing and may be given by facsimile or by mailing the same postage prepaid or delivering the same addressed as follows: | |
To the Vendor or either of them: Northern Orion Resources Inc. 000-0000
Xxxx Xxxxxxx Xxxxxx Attention:
Mr. Xxxxx Xxxxx |
|
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To the Purchaser:
Lumina Copper Corp. Attention: Xx. Xxxxxxx Xxxxx |
|
or to such other address
as a party may specify by notice and shall be deemed to have been received,
if sent by facsimile, on the date sent, if delivered, on the date of delivery
if it is a business day and otherwise on the next succeeding business
day and, if mailed, on the fifth business day following the posting of
the notice except if there is a postal dispute, in which case all communications
shall be delivered. |
|
11.6 |
Time of Essence |
Time is of the essence of
this Agreement. |
|
11.7 |
Further Assurances |
Each of the parties will
execute and deliver such further documents and instruments and do such
acts and things as may, before or after the Closing Date, be reasonably
required by another party to carry out the intent and meaning of this
Agreement and to assure to the Purchaser the Shares, at the cost and expense
of the requesting party. |
|
11.8 |
Proper Law |
This Agreement will be construed
and enforced in accordance with, and the rights of the parties shall be
governed by, the law of British Columbia. |
|
11.9 |
Entire Agreement |
This Agreement contains
the whole agreement between the Vendor and Purchaser pertaining to the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and |
|
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discussions between the
parties and there are no representations, warranties, covenants, conditions
or other terms other than expressly contained in this Agreement. |
|||
11.10 |
Assignment |
||
This Agreement may not be
assigned by either party without the prior written consent of the other
party, such consent not to be unreasonably withheld. No assignment of
this Agreement shall be effective unless the assignee agrees in writing
to assume and be bound by the obligations of the assigning party under
this Agreement. |
|||
11.11 |
Confidentiality |
||
(a) |
From and after Closing,
the Vendor shall use reasonable commercial efforts to keep confidential
and cause its consultants, advisors, agents, and solicitors to keep confidential
this Agreement and its contents and all confidential information and financial
statements relating to the Company and the Property. This Confidential
Information shall not include: |
||
(i) |
public information or information in
the public domain at the time of receipt by the Vendor or its agents,
consultants, advisors and solicitors; |
||
(ii) |
information which becomes public through
no fault or act of the Vendor or its agents, consultants, advisors, lenders
and solicitors; and |
||
(iii) |
subject to Section 11.12(b) hereof information
required to be disclosed by law. |
||
(iv) |
public information or information in
the public domain at the time of receipt by the Purchaser or its consultants,
agents, advisors, lenders and solicitors; |
||
(v) |
information which becomes public through
no fault or act of the Purchaser or the Purchaser’s consultants,
agents, advisors, lenders and solicitors; |
||
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(vi) |
information in the possession of the
Purchaser not provided by the Vendor or the Vendor’s consultants,
agents, advisors, lenders and solicitors; and |
||
(vii) |
information received in good faith from
a third party lawfully in possession of the information and not in breach
of any confidentiality obligations. |
||
(b) |
If the Vendor is required
or requested by legal process to disclose any Confidential Information,
such party will provide the Purchaser with prompt notice of such requirement
or request so that the Purchaser may seek an appropriate protective order
or waive compliance with the provisions of this requirement or both. If
the Vendor is compelled to disclose Confidential Information to any court
or tribunal or else stand liable for contempt or suffer other censures
or penalty, the Vendor may disclose same without liability hereunder provided
that, unless ordered by a court of competent jurisdiction to disclose
such Confidential Information immediately, it shall give the Purchaser
advance written notice of the information to be disclosed and, at the
request of the Purchaser, shall seek to obtain assurances that such information
will be accorded confidential treatment. |
||
(c) |
Provided the Closing shall
have occurred, the Purchaser shall thereupon be released from the terms
of the Confidentiality Agreement dated January 15, 2003. |
||
11.12 |
Arbitration |
||
All disputes arising out
of or in connection with this Agreement or in respect of any defined legal
relationship associated therewith or derived therefrom, shall be referred
to and finally resolved by arbitration under the rules of the British
Columbia International Commercial Arbitration Centre. The appointing authority
shall be the British Columbia International Commercial Arbitration Centre.
The case shall be administered by the British Columbia International Commercial
Arbitration Centre in accordance with its “Procedures for Cases under
the BCICAC Rules”. The place of arbitration shall be Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx. The arbitration shall be conducted in English. The arbitration
shall be confidential. |
|||
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11.13 |
Benefit and Binding Nature of the Agreement |
This Agreement enures to
the benefit of and is binding upon the parties and their respective successors
and permitted assigns. |
|
11.14 |
Counterparts |
This Agreement may be executed
in any number of counterparts. Each executed counterpart of each such
agreement shall be deemed to be an original. All executed counterparts
taken together shall constitute one agreement. |
|
11.15 |
Facsimile Execution |
An executed copy of this
Agreement may be delivered by either party by facsimile. In such event,
such party shall forthwith deliver to the other party an original copy
of such agreement executed by such party. |
|
11.16 |
Regulatory Approval |
To the extent now or at
any time hereafter applicable, this Agreement shall be subject to regulatory
approvals to which Lumina may be subject. |
|
11.17 |
No Recovery of Expenses |
Each Party shall pay all
expenses it incurs in authorizing, preparing, executing and performing
this Agreement and the transactions contemplated hereunder and thereunder,
whether or not this Agreement shall be signed, including all fees and
expenses of its legal counsel, bankers, investment bankers, brokers, accountants
or other representatives or consultants |
|
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AS EVIDENCE OF THEIR AGREEMENT the parties have executed this Agreement as of the _______ day of __________________ , 2003.
NORTHERN ORION RESOURCES INC.
per: __________________________
Authorized Signatory
GMA HOLDINGS S.A.
per: __________________________
per: __________________________
Authorized Signatory
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SCHEDULE 1
PART I
FINANCIAL STATEMENTS OF THE COMPANY AS OF DECEMBER 31,
2002
(See attached)
- 1 -
SCHEDULE 2
AMD AGREEMENT
- 2 -
