EXHIBIT 4.8
SHARE PURCHASE AGREEMENT
BY AND AMONG
CENTRASIA MINING CORP.
MAGELLAN HOLDINGS (BVI) CORP.
AND
STARGATE SOLUTIONS LTD.
DATED MAY 11, 2007
(as amended June 8, 2007, June 22, 2007, July 11, 2007 and July 13, 2007)
SHARE PURCHASE AGREEMENT
MADE THIS 11TH DAY OF MAY, 2007
BETWEEN
STARGATE SOLUTIONS LTD.
- AND -
CENTRASIA MINING CORP.
- AND -
MAGELLAN HOLDINGS ( BVI ) CORP.
1. DEFINITIONS, INTERPRETATION AND SCHEDULES............................2
1.1. DEFINED TERMS 2
1.2. CURRENCY 9
1.3. GENDER, NUMBER AND OTHER TERMS 9
1.4. DIVISION AND HEADINGS 9
1.5. CALCULATION OF TIME 9
1.6. PERFORMANCE ON HOLIDAYS 10
1.7. WAIVER OF RIGHTS 10
1.8. KNOWLEDGE 10
1.9. SCHEDULES 10
1.10. HEADINGS 10
1.11. NO STRICT CONSTRUCTION 11
2. SALE AND PURCHASE OF PURCHASED SHARES...............................11
2.1. SALE AND PURCHASE 11
2.2. PURCHASE PRICE 11
2.3. $200,000 LETTER OF CREDIT; FOREGIVENESS OF LOAN 11
2.4. INCREASE TO PURCHASE PRICE 12
2.5. DECREASES TO PURCHASE PRICE 13
2.6. CONTROL OF THE CENTRASIA SHARES 13
2.7. RESTRICTIONS ON THE CENTRASIA SHARES 13
2.8. PAYMENT BY WIRE TRANSFER 14
3. CLOSING DATE AND LOCATION...........................................14
4. REPRESENTATIONS AND WARRANTIES OF THE VENDOR........................14
4.1. AUTHORITY AND AUTHORIZATION 14
4.2. VALIDITY AND ENFORCEABILITY 14
4.3. ORGANIZATION, QUALIFICATION AND GOOD STANDING 15
4.4. PREVIOUS NAMES OR SUBSIDIARIES 15
4.5. AUTHORIZED AND ISSUED CAPITAL 15
4.6. TITLE TO THE PURCHASED SHARES AND THE RPI SHARES 16
4.7. CORPORATE RECORDS 17
4.8. NO OPTIONS 17
4.9. CONSENTS AND APPROVALS 17
4.10. NO VIOLATION 17
4.11. ABSENCE OF OTHER INTERESTS 18
4.12. NATURE OF BUSINESSES 18
4.13. COMPLIANCE WITH LAWS, LICENCES AND PERMITS 18
4.14. AGREEMENTS 19
4.15. MATERIAL CONTRACTS 19
4.16. NO CONTRACTUAL CONSENTS REQUIRED 19
4.17. LITIGATION 19
4.18. LEASED ASSETS 19
4.19. THE LICENCES 20
4.20. AGREEMENTS 20
4.21. CONDUCT OF BUSINESS 20
4.22. PERMITS 20
4.23. TITLE TO THE ASSETS 21
4.24. NO OPTIONS, ETC. 21
4.25. BOOKS AND RECORDS 21
4.26. UNAUDITED FINANCIAL STATEMENTS 21
4.27. ABSENCE OF CHANGES 21
4.28. ABSENCE OF UNUSUAL TRANSACTIONS 22
4.29. CONDITION OF THE COMPANY 23
4.30. BANK ACCOUNTS AND POWERS OF ATTORNEY 23
4.31. TAXES 23
4.32. ABSENCE OF GUARANTEES 24
4.33. INDEBTEDNESS TO VENDOR 24
4.34. BANKRUPTCY, ETC. 24
4.35. EMPLOYEES AND EMPLOYEE PLANS 24
4.36. NO DISSOLUTION, WINDING-UP, ETC. 24
4.37. WITHHOLDING 24
4.38. ENVIRONMENTAL MATTERS 24
4.39. UNDISCLOSED INFORMATION 26
4.40. COPIES OF DOCUMENTS 26
4.41. OTHER REPRESENTATIONS 26
5. RELIANCE BY PURCHASER...............................................26
6. COVENANTS OF THE VENDOR.............................................27
6.1. CONDUCT OF BUSINESS PRIOR TO CLOSING 27
6.2. EXECUTION OF DOCUMENTS 28
6.3. REGISTRATION OF DOCUMENTS 28
6.4. POST-CLOSING COVENANT 28
7. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.....................28
7.1. AUTHORITY AND AUTHORIZATION 28
7.2. VALIDITY AND ENFORCEABILITY 28
7.3. ORGANIZATION, QUALIFICATION AND GOOD STANDING 29
7.4. PREVIOUS NAMES OR SUBSIDIARIES 29
7.5. AUTHORIZED AND ISSUED CAPITAL 29
7.6. TITLE TO THE CENTRASIA SHARES 29
7.7. CORPORATE RECORDS 29
7.8. NO VIOLATION 29
7.9. NO CONTRACTUAL CONSENTS REQUIRED 30
7.10. BOOKS AND RECORDS 30
7.11. BANKRUPTCY, ETC. 30
7.12. OTHER REPRESENTATIONS 30
7.13. UNDISCLOSED INFORMATION 30
8. RELIANCE BY VENDOR..................................................30
9. COVENANTS OF THE PURCHASER..........................................31
9.1. EXECUTION OF DOCUMENTS 31
9.2. REGISTRATION OF DOCUMENTS 31
9.3. PAYMENT OF THE PURCHASE PRICE 31
9.4. VENDOR'S RIGHT TO APPOINT A DIRECTOR 31
10. AGENCY SERVICES.....................................................31
10.1. DIRECTION TO PAY COMMISSION. 31 10.2. NO OTHER FEES 32
11. DUE DILIGENCE AND DISCLOSURE ISSUES.................................32
11.1. ACCESS FOR INVESTIGATION 32
11.2. CONFIDENTIALITY 32
11.3. NEWS RELEASES AND DISCLOSURE 33
11.4. DISCLOSURE ACKNOWLEDGEMENTS 33
12. PURCHASER'S CONDITIONS OF CLOSING...................................33
12.1. TRUTH AND ACCURACY OF REPRESENTATIONS OF THE
VENDOR AT CLOSING 33
12.2. PERFORMANCE OF OBLIGATIONS 34
12.3. ABSENCE OF INJUNCTIONS 34
12.4. ABSENCE OF CHANGE OF CONDITIONS 34
12.5. CLOSING DOCUMENTATION 34
12.6. LEGAL OPINION 36
12.7. GOOD TITLE TO PURCHASED SHARES 36
12.8. NO ACTION 36
12.9. NO DEFAULT 36
12.10. NI 43-101 REPORT 37
12.11. FINANCING 37
12.12. CONSENTS, AUTHORIZATIONS AND REGULATORY APPROVAL 37
13. VENDOR'S CONDITIONS OF CLOSING......................................37
13.1. TRUTH AND ACCURACY OF REPRESENTATIONS OF THE
PURCHASER AT CLOSING 37
13.2. PERFORMANCE OF OBLIGATIONS 38
13.3. ABSENCE OF INJUNCTIONS 38
13.4. PURCHASE PRICE 38
14. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS...............38
14.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES 38
14.2. SURVIVAL OF COVENANTS 39
15. INDEMNITIES.........................................................39
15.1. VENDOR'S INDEMNITY 39
15.2. PURCHASER'S INDEMNITY 39
15.3. CLAIMS 40
15.4. VENDOR'S CERTIFICATE 40
16. TERMINATION.........................................................40
16.1. TERMINATION 40
16.2. REMEDIES 41
16.3. DAMAGE OR EXPROPRIATION 41
17. POST-CLOSING TRANSACTION............................................42
18. MISCELLANEOUS.......................................................42
18.1. PUBLIC NOTICES 42
18.2. NOTICES 42
18.3. SEVERABILITY 43
18.4. ENTIRE AGREEMENT 43
18.5. SURVIVAL 44
18.6. NOTICES 44
18.7. MODIFICATION; WAIVER 44
18.8. TIME 44
18.9. DISPUTE RESOLUTION AND GOVERNING LAW 44
18.10. FURTHER ASSURANCES 44
18.11. ASSIGNMENT 45
18.12. ENUREMENT 45
18.13. COUNTERPARTS 45
2
SHARE PURCHASE AGREEMENT
THIS AGREEMENT is made this 11th day of May, 2007
BETWEEN:
STARGATE SOLUTIONS LTD. a corporation incorporated under the laws of
the British Virgin Islands having is registered office at X.X. Xxx 000,
Xxx Xxxxxx Xxxxx, Xxxxxxxxxx Highway, Road Town, Tortola, British
Virgin Islands
(the "VENDOR")
AND:
CENTRASIA MINING CORP., a corporation incorporated under the laws of
British Columbia and having an office at 300 - 1055 X. Xxxxxxxx Street
Vancouver, British Columbia C V6E 2E9
(the "PURCHASER")
AND:
MAGELLAN HOLDINGS ( BVI ) CORP., a corporation incorporated under the
laws of the British Virgin Islands and having an office at c/o HWR
Services Limited, Craigmuir Xxxxxxxx, P.O. Box 71, Road Town, Tortola,
British Virgin Islands
("MAGELLAN")
WHEREAS:
A. The Vendor is the legal, beneficial and registered owner of 1000 shares
in the capital of R.P.I.M. Minerals Ltd., a Cyprus corporation having
its registered office at Xxxxxxx 00, Xxxxxxx Xxxxxxxx Xxxxxx, 0xx
Xxxxx, X.X. 0000, Xxxxxxx, Xxxxxx (the "COMPANY"), such shares being
all of the issued and outstanding shares in the capital of the Company;
B. Magellan is a wholly-owned subsidiary of the Purchaser; and
C. The Vendor has agreed to sell to the Purchaser and the Purchaser has
agreed to purchase from the Vendor all of the Vendor's respective legal
and beneficial interest in the shares in the capital of the Company on
the terms and conditions set forth in this Agreement;
THIS AGREEMENT WITNESSES THAT in consideration the representations, warranties,
covenants and agreements set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereto agree as follows:
- 2 -
1. DEFINITIONS, INTERPRETATION AND SCHEDULES
1.1. DEFINED TERMS
As used in this Agreement, the following words and phrases shall have
the following meanings:
(a) "ACTION" means any litigation, action, Order, claim,
complaint, prosecution, petition, investigation, suit,
hearing, grievance or other legal, administrative, arbitral,
governmental or similar proceeding, whether civil or criminal,
in law or in equity (including appeals and applications for
review);
(b) "AFFILIATE" means, with respect to any Person, any Person
directly or indirectly controlling, controlled by or under
direct or indirect common control with such other Person;
(c) "AGENT" means AGA Management LTD. and its Affiliates;
(d) "AGREEMENT" means this Agreement, including its recitals and
Schedules, as it may be amended, restated or supplemented from
time to time;
(e) "APPLICABLE LAW" means any and all domestic or foreign
statute, conventions, laws, statutes, ordinances, by-laws,
codes, regulations, rules and all policies, guidelines,
standards, Orders, decisions rendered or promulgated of any
Governmental Authority applicable to a Party, this Agreement,
the Business or the RPI Assets, including without limitation
employment, labour, Tax, and Environmental Laws;
(f) "ASSETS" means all rights, properties or assets and materials
of any nature or kind, whether real or personal, tangible or
intangible, corporeal or incorporeal, and includes any
interest in real property, mineral rights, plant, machinery,
facilities, equipment, fixtures, personal property and
chattels, whether leased, owned or otherwise;
(g) "AUDITED FINANCIAL STATEMENTS" means audited consolidated
financial statements of the Company and RPI, to be prepared to
a date to be determined by the Purchaser and which shall
consist of a balance sheet as at the end of each fiscal
period, a statement of profit and loss and a statement of
changes in financial position with accompanying notes,
prepared in accordance with International Financial Reporting
Standards and audited in accordance with the International
Auditing Standards by an internationally recognized firm of
chartered accountants selected by the Purchaser and acceptable
to the Vendor.
(h) "BOOKS AND RECORDS" means all books of account, Tax records,
sales and purchase records, customer and supplier lists,
computer software, formulae, business reports, plans and
projections and all other documents, files, correspondence and
other information (whether or not in written, printed,
electronic or computer printout form);
- 3 -
(i) "BUSINESS" means the business carried on by RPI, being
exploration and, as the case may be, detail prospecting and
production of copper-nickel ores within the License Area as
permitted by the respective Licenses and all business and
operations related thereto;
(j) "BUSINESS DAY" means any day other than a Saturday, Sunday or
any statutory holiday in the Province of British Columbia;
(k) "CENTRASIA SHARES" means the 12,500,000 common shares of the
Purchaser to be issued to and registered in the name of the
Vendor in accordance with this Agreement;
(l) "CLAIM" has the meaning assigned thereto in Section 15.3;
(m) "CLAIMING PARTY" has the meaning assigned thereto in Section
15.3;
(n) "CLOSING" means the completion of the sale and purchase of the
Purchased Shares pursuant to this Agreement, which transaction
shall be effective as of the Closing Time;
(o) "CLOSING DATE" means the later of:
(i) the date which is ten Business Days after the date
final acceptance of the Sale Transaction is obtained
from the TSX Venture Exchange; or
(ii) such later date as may be agreed to in writing by the
Vendor and the Purchaser;
(p) "CLOSING TIME" means 10:00 a.m. (Vancouver time) on the
Closing Date, or such earlier or later time or date as may be
agreed to in writing by the Vendor and the Purchaser;
(q) "CONTRACT" means any agreement, indenture, mortgage, contract,
lease (including, without limitation, any equipment lease,
vehicle lease, real property lease, personal property lease
and operating lease), plan, arrangement, deed of trust,
license, equipment warranty, option, instrument, obligation,
undertaking, purchase order, supply commitment or other
commitment or agreement, whether written or oral;
(r) "CORPORATE RECORDS" means the corporate records of a Person,
including (i) all constating documents and by-laws, (ii) all
minutes of meetings and resolutions of shareholders and
directors (and any committees), and (iii) the share
certificate books, securities register, register of transfers
and register of directors;
(s) "EMPLOYEE PLAN" means any retirement, pension, bonus, stock
purchase, profit sharing, stock option, deferred compensation,
severance or termination pay, insurance, medical, hospital,
dental, vision care, drug, sick leave, disability, salary
continuation, legal benefits, unemployment benefits, vacation,
incentive or other employee compensation or benefit plan,
arrangement, policy, program or practice
- 4 -
(whether provided on a pre- or post-retirement basis) which is
maintained, or otherwise contributed to or required to be
contributed to, by RPI for the benefit of any present or
former employees, officers or directors of RPI;
(t) "ENCUMBRANCE" means any encumbrance, lien, execution,
priority, claim, charge, pledge, hypothecation, mortgage,
debenture, trust deed, conditional sale, title retention
agreement, option or security interest of any nature or kind
whatsoever, adverse claim, servitude, exception, reservation,
covenant, condition, restriction, easement, right of way,
right of occupation, lease, licence, any matter or agreement
capable of registration against or otherwise affecting title,
option, sale agreement, right to purchase, right of
pre-emption, privilege or any Contract to create any of the
foregoing;
(u) "ENVIRONMENTAL AUTHORITIES" means Governmental Authority or
regulatory authority having jurisdiction under any
Environmental Laws, including any department, commission,
bureau, board, administrative agency or body of any of the
foregoing;
(v) "ENVIRONMENTAL LAWS" means all Applicable Laws, Orders,
injunctions, rules, statutes or regulations of any court,
arbitrator or Governmental Authority relating to fisheries,
health and safety, the protection or preservation of the
environment or the manufacture, processing, distribution, use,
treatment, storage, disposal, emission, release, destruction,
packaging, containment, discharge, transport, handling,
clean-up or other remediation or corrective action of any
Hazardous Substances, all reclamation, remediation and closure
requirements in connection with mining projects, all bonding
or other security requirements relating in any way to
reclamation, remediation and closure requirements in
connection with mining projects, all authorizations issued
pursuant to such Applicable Laws, agreements or requirements,
including, but not limited to, Environmental Permits;
(w) "ENVIRONMENTAL PERMITS" means any and all Permits required
under Environmental Laws in connection with the conduct and
operation of the Business;
(x) "ESCROW AGREEMENT" means an agreement in Form 5D of the TSX
Venture Exchange between the Vendor, the Purchaser, the Agent
and the transfer agent of the shares of the Purchaser as
referenced in Section 2.7;
(y) "ESCROW AGREEMENT 2" means an agreement in form and substance
to the satisfaction of the Vendor and the Vendor's Solicitors
and to the Purchaser and the Purchaser's Solicitors between
the Vendor, the Purchaser and the Escrow Bank to facilitate
the transactions contemplated in Section 2.2 and Articles 3
and 10.
(z) "ESCROW BANK" means a bank in Nicosia, Cyprus selected by the
Purchaser with the approval of the Vendor.
- 5 -
(aa) "GOVERNMENTAL AUTHORITY" means any foreign, domestic, federal,
territorial, state, oblast, respublika, avtonomnyy, okrug,
kray, gorod, avtonomnaya oblast', regional, municipal or local
government entity, quasi-governmental authority, court,
commission, board, bureau, agency, instrumentality, or any
regulatory, administrative or other department or agency, or
any political or other subdivision, department or branch of
any of the foregoing including (1) an entity, person, court or
other body or organization exercising executive, legislative,
judicial, regulatory or administrative functions of, or
pertaining to, any such government or subdivision and (2)
international organizations formed by or participated in by
any foreign, domestic, federal, territorial, state, oblast,
respublika, avtonomnyy, okrug, kray, gorod, avtonomnaya
oblast', regional, municipal or local government entity,
quasi-governmental authority, court, commission, board,
bureau, agency, instrumentality, or any regulatory,
administrative or other department or agency, or any political
or other subdivision, department or branch or representatives
thereof;
(bb) "HAZARDOUS SUBSTANCES" include
(i) any substance the presence of which requires
reporting, investigation, removal and remediation
under any Environmental Laws;
(ii) any substance that is defined as a pollutant,
contaminant, dangerous substance, toxic substance,
hazardous or toxic chemical, hazardous waste or
hazardous substance under any Environmental Laws;
(iii) any substance that is toxic, explosive, corrosive,
flammable, ignitable, radioactive, infectious,
carcinogenic or otherwise hazardous and is regulated
by or forms the basis of Liability under any
Environmental Laws;
(iv) any substance the presence of which on a property
causes or threatens to cause a nuisance upon the
property or to adjacent properties or poses or
threatens to pose a hazard to health or safety of
persons on or about a property;
(v) any substance that contains gasoline, diesel fuel or
other petroleum hydrocarbons, including crude oil and
fractions thereof, natural gas, synthetic gas and any
mixtures thereof;
(vi) any substance that contains asbestos and/or
asbestos-containing materials; or
(vii) any substance that contains PCBs, or PCB-containing
materials or fluids;
(cc) "INDEMNIFYING PARTY" shall have the meaning assigned thereto
in Section 15.3;
(dd) "INTERIM PERIOD" means the period from and including the date
of this Agreement to and including the Closing Time;
- 6 -
(ee) "LIABILITY" means any direct or indirect, absolute or
contingent, indebtedness, liability, guarantee, claim, loss,
damage, cost, expense, obligation or responsibility, whether
asserted or unasserted, liquidated or unliquidated, secured or
unsecured;
(ff) "LICENCES" means each of Souker License, TME License and UA
License (individually or collectively, as the context
requires) copies of which are attached as Schedule 4.19;
(gg) "LICENCE AREA" means subsoil as described in each and all of
the Licences;
(hh) "LOAN" means the $200,000 advanced by the Purchaser to RPI
pursuant to the Loan Agreement together with accrued interest
thereon and "LOAN AGREEMENT" means the agreement dated April
14, 2007 between the Purchaser and RPI.
(ii) "LOSSES" has the meaning assigned thereto in Section 15.1;
(jj) "MATERIAL ADVERSE EFFECT" or "MATERIAL ADVERSE CHANGE" means
an effect or change, as the case may be, in the affairs of the
Company or RPI with a monetary value of $100,000 or greater;
(kk) "MATERIAL CONTRACTS" means those subsisting Contracts entered
into by either the Company or RPI, by which it is bound or to
which it or its Assets or the Licences are subject which have
total payment obligations on the part of the Company and/or
RPI which exceed $10,000 or are for a term of or in excess of
6 months;
(ll) "ORDER" means any order, directive, judgment, decree, award or
writ of any court (including a court of equity) of competent
jurisdiction, arbitrator panel and any other Governmental
Authority;
(mm) "ORDINARY COURSE OF BUSINESS" when used in relation to the
conduct of RPI or the Business means:
(i) any activity consistent with past practices of RPI
conducted in a commercially reasonable manner having
no unusual or special features;
(ii) such action is not required to be authorized by the
board of directors of RPI (or by any person or group
exercising similar authority); and
(iii) such action is of a similar nature and magnitude to
actions customarily taken, without any authorization
by the board of directors of RPI (or by any person or
group exercising similar authority) in the ordinary
course of the normal day-to-day operations such
corporations that are in the same line of business as
RPI;
(nn) "PARTIES" means the Vendor, the Purchaser and Magellan, and
"Party" means any of them;
- 7 -
(oo) "PERSON" means any individual, partnership, limited
partnership, corporation, body corporate, limited liability
company, joint venture, association, joint stock company,
trust, unincorporated organization, Governmental Authority or
any agency or political subdivision thereof or any other
entity;
(pp) "PERMITS" means , permits, licences, Orders, approvals,
consents, certificates, registrations and authorizations
whether issued to or required by RPI relating to the Licenses
and the Business by, from, or with any Governmental Authority,
listed in Schedule 4.22;
(qq) "PURCHASED SHARES" means the 1000 shares in the capital of the
Company, representing all of the issued and outstanding shares
in the capital of the Company, which are being sold by the
Vendor to the Purchaser;
(rr) "PURCHASE PRICE" has the meaning assigned thereto in Section
2.2;
(ss) "PURCHASER'S SOLICITORS" means the law firm of Xxxxxx Xxxxxxx
LLP;
(tt) "RPI" means ZAO "Rudprominvest", a corporation incorporated
under the laws of Russia, being a wholly owned subsidiary of
the Company and having an address at 0 Xxxxxxxxxx Xxxxxx,
Xxxxxxx, Murmansk region, 184209, Russian Federation;
(uu) "RPI ASSETS" means the Assets owned or leased by RPI and
includes the Licences;
(vv) "RPI SHARES" means the 100 shares in the capital of RPI,
representing all of the issued and outstanding shares in the
capital of RPI, which are owned by the Company;
(ww) "SALE TRANSACTION" means the sale, transfer and assignment by
the Vendor to the Purchaser, and the purchase by the Purchaser
from the Vendor, and the acceptance of the transfer and
assignment of the Purchased Shares by the Purchaser from the
Vendor in accordance with the terms of this Agreement;
(xx) "SHAREHOLDERS" means the shareholders of the Vendor.
(yy) "SHAREHOLDER GUARANTEE" means an agreement in favour of the
Purchaser and in form and substance to the satisfaction of the
Purchaser and the Purchaser's Solicitors by the Shareholders
to guarantee the representations, warranties and covenants of
the Vendor in this Agreement and in the Transaction Documents;
(zz) "SHAREHOLDERS' AGREEMENT" means an agreement between the
Shareholders and the Vendor referenced in Section 2.3;
(aaa) "SOUKER LICENSE" means License Series IO-D 00695 OY for the
right to conduct detailed prospecting and the subsequent
production of copper-nickel ore within the Souker
mineralization, issued to the Company by the Territorial
Agency on Subsoil Use for the Murmansk oblast, registered on
January 28, 2005 under
- 8 -
No. 695/08-05 and valid according to its terms until December
15, 2030, as the same may be amended, re-issued or replaced
from time to time.
(bbb) "TAX" or "TAXES " includes all present and future taxes,
surtaxes, duties, levies, imposts, rates, fees, assessments,
withholdings, dues and other charges of any nature imposed by
any Governmental Authority (including income, capital
(including large corporations), corporate profits,
withholding, assets, consumption, sales, use, transfer, goods
and services or other value-added, excise, customs,
anti-dumping, stumpage, countervail, net worth, stamp,
registration, franchise, payroll, employment, health,
education, business, school, property, local improvement,
development, education development and occupation taxes,
surtaxes, duties, levies, imposts, rates, fees, assessments,
withholdings, dues and charges) together with all fines,
interest, penalties on or in respect of, or in lieu of or for
non-collection of, those taxes, surtaxes, duties, levies,
imposts, rates, fees, assessments, withholdings, dues and
other charges;
(ccc) "TAXING AUTHORITY" means any Governmental Authority, domestic
or foreign, having jurisdiction over the assessment,
determination, collection or other imposition of any Tax;
(ddd) "TAX LAWS" means all Applicable Laws imposing a Tax, including
all treaties, conventions, rules, regulations, orders, and
decrees of any jurisdiction (in each case having the force of
law);
(eee) "TAX LIABILITIES" means any Liability of the Vendor, the
Company and/or RPI as of the Closing Date to make a payment of
or in respect of Taxes including, without limiting the
generality of the foregoing, value-added tax payable,
corporate profits tax payable, assets tax payable, withholding
tax payable and property tax payable;
(fff) "TAX RETURN" means any return, report, declaration,
designation, election, undertaking, waiver, notice, filing,
information return, form, certificate or any other document or
material relating to Taxes required to be filed with a Taxing
Authority;
(ggg) "TME LICENSE" means License Series IO-D No. 13487 OI for the
Right to Subsoil Use for the purposes of the search and
valuation of deposits of copper and nickel, issued to
Rudprominvest by the Federal Subsoil Use Agency of the Russian
Federation, registered by the Russian Federation Ministry of
Natural Resources on February 22, 2006 under No.
4412/IO-D13487OI and valid according to its terms until
December 1, 2010, as the same may be amended, re-issued or
replaced from time to time.
(hhh) "TRANSACTION DOCUMENT" means, when used, in reference to a
particular person any agreement, document, certificate, or
instrument to be executed by such Person in connection with
the transactions contemplated hereby;
- 9 -
(iii) "UA LICENSE" means License Series IO-D No. 13486 OI for the
Right to Subsoil Use for the purposes of the search and
valuation of deposits of nickel and platinum, issued to
Rudprominvest by the Federal Subsoil Use Agency of the Russian
Federation, registered by the Russian Federation Ministry of
Natural Resources on February 22, 2006 under No.
4411/IO-D13486OI and valid according to its terms until
December 1, 2010, as the same may be amended, re-issued or
replaced from time to time.
(jjj) "UNAUDITED FINANCIAL STATEMENTS" has the meaning assigned
thereto in Section 4.26;
(kkk) "VENDOR'S CERTIFICATE" means the certificates to be delivered
at Closing under Section 12.1; and
(lll) "VENDOR'S SOLICITORS" means the firm of AGA Management Ltd.,
00 Xxxxxxxxxx Xxxx, Xxxx. 0, Xxxxxx, 000000, Xxxxxx.
1.2. CURRENCY
Except as otherwise stated herein, dollar amounts referred to in this
Agreement shall be in US dollars.
1.3. GENDER, NUMBER AND OTHER TERMS
In this Agreement, unless the context otherwise requires, words
importing the singular include the plural and vice versa, words
importing gender include all genders, "or" is not exclusive and
"including" is not limiting, whether or not non-limiting language (such
as "without limitation") is used with reference to it. Any reference to
a corporate entity includes and is also a reference to any corporate
entity that is a successor to such entity.
1.4. DIVISION AND HEADINGS
The division of this Agreement into Articles, Sections, subsections and
Schedules is for convenience of reference only and shall not affect the
interpretation or construction of this Agreement.
1.5. CALCULATION OF TIME
When calculating the period of time within which or following which any
act is to be done or step taken pursuant to this Agreement, the date
which is the reference date in calculating such period shall be
excluded. If the last day of such period is not a Business Day, then
the time period in question shall end at 5:00 p.m. (Vancouver time) on
the first Business Day following such non-Business Day.
- 10 -
1.6. PERFORMANCE ON HOLIDAYS
If any act (including the giving of notice) is otherwise required by
the terms hereof to be performed on a day which is not a Business Day,
such act shall be valid if performed on the next succeeding Business
Day.
1.7. WAIVER OF RIGHTS
Any waiver of, or consent to depart from, the requirements of any
provision of this Agreement shall be effective only if it is in writing
and signed by the Party giving it, and only in the specific instance
and for the specific purpose for which it has been given. No failure on
the part of any Party to exercise, and no delay in exercising, any
right under this Agreement shall operate as a waiver of such right. No
single or partial exercise of any such right shall preclude any other
or further exercise of such right or the exercise of any other right.
1.8. KNOWLEDGE
In this Agreement, the phrase "to the knowledge of the Vendor" or
phrases of similar import means to the best of the knowledge,
information and belief of any one or more of the Vendor, the Company,
RPI and, after due inquiry, each of the Shareholders and the officers,
employees, consultants and advisors of the Vendor who, having regard to
their positions, job descriptions and responsibilities, should
reasonably be expected to have knowledge and information relevant to
the matter in question.
1.9. SCHEDULES
The following are the schedules to this Agreement:
(a) Schedule 4.4(b) - Corporate Predecessors of RPI etc.
(b) Schedule 4.9 - Consents and Approvals
(c) Schedule 4.11(b) - Shares owned
(d) Schedule 4.14 - Agreements (other than Material Contracts)
(e) Schedule 4.15 - Material Contracts
(f) Schedule 4.18 - Equipment Leases
(g) Schedule 4.19 - Licences
(h) Schedule 4.22 - Permits (including Environmental Permits)
(i) Schedule 4.26 - Financial Statements
(j) Schedule 4.30 - Bank Accounts and Powers of Attorney
(k) Schedule 4.35 - Employees and Employee Plans
(l) Schedule 4.38(l) - Leased Property
(m) Schedule 7.4 - Corporate Information for Centrasia
1.10. HEADINGS
The headings in this Agreement are inserted for convenience only and do
not form a part of this Agreement and are not intended to interpret,
define or limit the scope, extent or intent of this Agreement or any
provision of this Agreement.
- 11 -
1.11. NO STRICT CONSTRUCTION
The Parties acknowledge that this Agreement is the product of arm's
length negotiation between the parties, each having obtained its own
independent legal advice, and that this Agreement shall be construed
neither strictly for nor strictly against any Party irrespective of
which Party was responsible for drafting this Agreement.
2. SALE AND PURCHASE OF PURCHASED SHARES
2.1. SALE AND PURCHASE
On the basis of the representation, warranties and covenants of the
Vendor in this Agreement and subject to the fulfilment of any condition
that has not been waived by a Party entitled to the benefit thereof,
the Vendor hereby agrees to sell, transfer and assign to the Purchaser,
and the Purchaser hereby agrees to purchase from the Vendor, the
Purchased Shares, free and clear of all Encumbrances.
2.2. PURCHASE PRICE
Subject to Sections 2.3, 2.4, 2.5 and 10.1, the purchase price (the
"PURCHASE PRICE") payable by the Purchaser for the Purchased Shares
shall be the aggregate of:
(a) $6,000,000 on the Closing Date to the Escrow Bank, in escrow
under the terms of Escrow Agreement 2, to be released to the
Vendor on completion of the Closing or returned to the
Purchaser in the event this Agreement is terminated pursuant
to Article 16;
(b) the issuance of the Centrasia Shares to the Vendor, of which
3,125,000 (25%) shall be delivered to the Escrow Bank, in
escrow, to be released to the Vendor on completion of the
Closing, with the balance to be dealt with in accordance with
the terms of the Escrow Agreement as provided in Section 2.7;
(c) $5,000,000 by wire transfer on or before that date which is
the first anniversary of the Closing Date, and
(d) $1,500,000 by wire transfer on or before that date which is
the second anniversary of the Closing Date.
2.3. $200,000 LETTER OF CREDIT; FOREGIVENESS OF LOAN
Upon the execution of this Agreement or as soon as practicable
thereafter the Purchaser will deliver to the Escrow Bank, in escrow, a
letter of credit issued by a bank selected by the Purchaser and
acceptable to the Vendor for $200,000. If the Purchaser terminates this
Agreement pursuant to Section 16.1 or pays $6,000,000 pursuant to
Section 2.2(a) and deliver 3,125,000 Centrasia Shares pursuant to
Section 2.2(b), the letter of credit will be returned to the Purchaser.
If, on or before June 25, 2007, the Purchaser fails to pay $6,000,000
pursuant to Section 2.2(a) and deliver 3,125,000 Centrasia Shares
pursuant to Section 2.2(b) and the Purchaser has not terminated this
Agreement pursuant to Section 16.1, then the Loan shall be deemed to
have been forgiven and the letter of credit shall be
- 12 -
delivered by the Escrow Bank to the Vendor and the Vendor shall be
entitled to draw the full amount thereof.
2.4. INCREASE TO PURCHASE PRICE
If the Purchaser has not terminated this Agreement pursuant to Section
16.1 and the Purchaser:
(a) fails to pay $6,000,000 pursuant to Section 2.2(a) and deliver
3,125,000 Centrasia Shares pursuant to Section 2.2(b) on or
before June 25, 2007, then (in addition to the consequences
provided in Section 2.3) the Purchase Price shall be increased
by $600,000, which shall be added to the payment of $6,000,000
referred to in Section 2.2(a) and shall be due and payable at
the Closing;
(b) pays $6,000,000 pursuant to Section 2.2(a) on or before June
25, 2007 but fails to deliver 3,125,000 Centrasia Shares
pursuant to Section 2.2(b) on or before June 25, 2007, then
(in addition to the consequences provided in Section 2.3) the
Purchase Price shall be increased by $200,000, which shall be
added to the payment of $6,000,000 referred to in Section
2.2(a) and shall be due and payable at the Closing;
(c) fails to pay $6,000,000 pursuant to Section 2.2(a) and deliver
3,125,000 Centrasia Shares pursuant to Section 2.2(b) on or
before June 25, 2007 and both such failures are continuing at
the close of business in Cyprus on July 25, 2007, then (in
addition to the consequences provided in Section 2.3) the
Purchase Price shall be further increased by $250,000, which
shall be added to the aggregate payment of $6,600,000 referred
to in Section 2.4(a) and shall be due and payable at the
Closing;
(d) pays $6,000,000 pursuant to Section 2.2(a) on or before June
25, 2007 but fails to deliver 3,125,000 Centrasia Shares
pursuant to Section 2.2(b) on or before June 25, 2007 and such
failure is continuing at the close of business in Cyprus on
July 25, 2007, then the Purchase Price shall be further
increased by $850,000, which shall be added to the aggregate
payment of $6,200,000 referred to in Section 2.4(b) and shall
be due and payable at the Closing;
(e) fails to make the payment of $5,000,000 referred to in Section
2.2(c) within ten Business Days after the first anniversary of
the Closing Date, then the Purchase Price shall be increased
by $250,000, which shall be added to the said $5,000,000, and
the $5,250,000 then due and payable shall bear interest until
paid at an annual rate of 15% or
(f) fails to make the payment of $1,500,000 referred to in Section
2.2(d) within ten Business Days after the second anniversary
of the Closing Date, then the Purchase Price shall be
increased by $100,000, which shall be added to the said
$1,500,000, and the $1,600,000 then due and payable shall bear
interest until paid at an annual rate of 15%.
- 13 -
2.5. DECREASES TO PURCHASE PRICE
The amount of the Purchase Price may be reduced as follows:
(a) The $5,000,000 payable pursuant to Section 2.2(c) shall be
reduced if it is paid before the first anniversary of the
Closing Date, the amount of the reduction to be equal to
$5,000,000 multiplied by the lesser of 180 or the number of
days from the date of actual payment to the first anniversary
of the Closing Date divided by 360 multiplied by 15%; and
(b) The $1,500,000 payable pursuant to Section 2.2(d) shall be
reduced if it is paid before the second anniversary of the
Closing Date, the amount of the reduction to be equal to
$1,500,000 multiplied by the lesser of 360 or the number of
days from the date of actual payment to the second anniversary
of the Closing Date divided by 360 multiplied by 15%.
2.6. CONTROL OF THE CENTRASIA SHARES
The Vendor acknowledges that it has three shareholders only and it is
intended that control of the Centrasia Shares to be registered in the
name of the Vendor will be held by such shareholders in proportion to
their share ownership of the Vendor. In that regard, the Vendor and its
shareholders will enter into the Shareholders' Agreement to establish
this arrangement and provide a certified true copy of it to the
Purchaser at Closing.
2.7. RESTRICTIONS ON THE CENTRASIA SHARES
The Purchaser shall use all reasonable endeavours to reduce the period
of escrow restrictions to the Centrasia Shares. However, the Vendor
acknowledges that the Centrasia Shares will be subject to escrow
restrictions tied to the indirect ownership of the Properties by the
Purchaser for a period of not more than eighteen months from the date
they are issued, and that the Vendor will enter into the Escrow
Agreement in that regard on or before the Closing Date with the
Transfer Agent of the Purchaser, Computershare Trust Company of Canada
("Computershare"). In the ordinary course, the Centrasia Shares shall
be released from escrow by Computershare to the Vendor pursuant to the
Escrow Agreement as follows:
---------------------------------------------------------------------
No. and % of
Centrasia Shares
Date Released from Escrow
---------------------------------------------------------------------
The Closing Date 3,125,000 (25%)
6 months after the Closing Date 3,125,000 (25%)
12 months after the Closing Date 3,125,000 (25%)
18 months after the Closing Date 3,125,000 (25%)
---------------------------------------------------------------------
Total: 12,500,000 (100%)
---------------------------------------------------------------------
- 14 -
2.8. PAYMENT BY WIRE TRANSFER
For the purposes of Sections 2.3, 2.4 and 2.5, the Purchaser shall be
deemed to have made payment when appropriate wire transfer instructions
have been given by it to its bank.
3. CLOSING DATE AND LOCATION
The Closing shall take place at the Closing Time at the offices of the Escrow
Bank in Nicosia, Cyprus, or at such other place as may be agreed upon by the
Vendor and the Purchaser. Without limiting Section 18.10, the Vendor and the
Purchaser will give such written directions to the Escrow Bank as may be
necessary under Escrow Agreement 2 to effect the release of the funds referred
to in Section 2.2(a) and the Centrasia Shares for the Purchased Shares and such
other documentation as is required by the terms of this Agreement to be
delivered on Closing. The fees and expenses of the Escrow Bank will be borne
equally by the Vendor and the Purchaser. Payment of the agency fees to the Agent
shall be at the expense of the Vendor.
4. REPRESENTATIONS AND WARRANTIES OF THE VENDOR
The Vendor hereby represents and warrants to and in favour of the Purchaser and
Magellan as follows, as of the date of this Agreement and as of the Closing
Time, and hereby acknowledges and confirms that the Purchaser is relying on such
representations and warranties in connection with the purchase of the Purchased
Shares and that, as provided in Section 16, Magellan will also be relying on
such representations and warranties in connection with the transfer of the
Purchased Shares to it from the Purchaser after the Closing:
4.1. AUTHORITY AND AUTHORIZATION
The Vendor has due and sufficient right and authority to enter into
this Agreement and to transfer the legal and beneficial title and
ownership of the Purchased Shares to the Purchaser. The execution and
delivery of this Agreement and the completion of the transactions
contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of the Vendor.
4.2. VALIDITY AND ENFORCEABILITY
This Agreement has been authorized, executed and delivered by the
Vendor and constitutes a valid and legally binding obligation of the
Vendor enforceable against the Vendor in accordance with the terms
thereof and upon being executed and delivered the Transaction Documents
will constitute valid and legally binding obligations of the Vendor
enforceable against the Vendor in accordance with the terms thereof,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting the
rights of creditors generally and except as limited by the application
of equitable principles when equitable remedies are sought, and by the
fact that rights to indemnity, contribution and waiver, and the ability
to sever unenforceable terms, may be limited by Applicable Laws.
- 15 -
4.3. ORGANIZATION, QUALIFICATION AND GOOD STANDING
(a) The Company is duly incorporated and qualified, licensed and
registered, validly existing, and in good standing, and has
all necessary corporate power, authority and capacity to own
and operate its Assets and to carry on its business as
presently anticipated. Neither the nature of the business of
the Company nor the location or character of the Assets owned
or leased by it requires that the Company be registered or
otherwise qualified or to be in good standing in any other
jurisdiction other than in the Republic of Cyprus. The Company
has made all necessary filings, under all applicable
corporate, securities, taxation and other Applicable Laws to
which it is subject.
(b) RPI is duly incorporated, registered, validly existing, and
has all necessary corporate power, authority and capacity to
own and operate its Assets and to carry on its Business as
presently conducted. Neither the nature of the Business of RPI
nor the location or character of the Assets owned or leased by
it requires that RPI be registered or otherwise qualified or
to be in good standing in any other jurisdiction other than in
Russia. RPI has obtained all required corporate approvals from
its founders and complied with all necessary filing
requirements, under all applicable corporate, securities,
anti-monopoly, taxation and other Applicable Laws to which it
is subject. The Charter and other constitutive documents of
RPI, including any amendments and additions thereto, comply
with all requirements of Applicable Laws, are duly executed,
approved and registered, and are in full force and effect.
4.4. PREVIOUS NAMES OR SUBSIDIARIES
(a) There are no corporate predecessors of the Company, no
previous corporate names of the Company and RPI is the only
subsidiary of the Company.
(b) Except as set out in Schedule 4.4(b), there are no corporate
predecessors of RPI, no previous corporate names of RPI and no
subsidiaries of RPI.
4.5. AUTHORIZED AND ISSUED CAPITAL
(a) The authorized capital of the Company consists of 1000 shares
of which 1000 have been validly issued and are outstanding as
fully paid and non-assessable shares. The Purchased Shares
constitute all of the issued and outstanding shares in the
capital of the Company. No options, warrants or other rights
for the purchase, subscription or issuance of shares or other
securities of the Company or securities convertible into or
exchangeable for shares of the Company have been authorized or
agreed to be issued or are outstanding. The Purchased Shares
are not subject to any pre-emptive rights and there are no
shareholder agreements, voting trust agreements or other
Contracts restricting voting or dividend rights or
transferability with respect to such shares.
(b) The amount of charter capital of RPI equals 10,000 (ten
thousand) Russian Roubles. The charter capital of RPI has been
duly formed and, in particular, the
- 16 -
timing of all charter capital contributions and all procedures
for the formation of charter capital were completed in
compliance with Applicable Laws.
(c) The authorized and issued charter capital of RPI is
represented by 100 (one hundred) common registered
non-documentary voting shares with par value of 100 (one
hundred) Russian Roubles per share. All procedures and timing
requirements under Applicable Laws in relation to the issue
and placement of the RPI Shares were duly complied with and
all Approvals with this respect have been duly and timely
obtained, in particular, all of the RPI Shares have been
issued and registered with the relevant Governmental
Authorities in compliance with all Applicable Laws. All of the
RPI Shares have been fully paid within the time periods and in
the manner contemplated and required by Applicable Laws. The
RPI Shares constitute all of the issued and outstanding shares
in the capital of RPI; there are neither (i) any authorized
shares in RPI that are in the process of being issued or
placed, nor (ii) any preferred shares in RPI. No options,
warrants or other rights for the purchase, subscription or
issuance of shares or other securities of RPI or securities
convertible into or exchangeable for shares in RPI have been
authorized or agreed to be issued or are outstanding. There
are no restrictions on the transfer of the RPI Shares except
those set forth in the constating documents of RPI. There are
no shareholder agreements, voting trust agreements or other
Contracts restricting voting or dividend rights or
transferability with respect to such shares.
4.6. TITLE TO THE PURCHASED SHARES AND THE RPI SHARES
(a) The Vendor is or will be on or before Closing the legal and
beneficial owner of the number and class of shares of the
Company as set forth below, free and clear of all Encumbrances
and the Purchased Shares have been duly and validly issued and
are outstanding as fully paid and non-assessable shares in the
capital of the Company.
Registered and Class of Shares Number of Shares
Beneficial Owner Owned Owned
Stargate Solutions Ltd. common 1000.
(b) The Company is or will be on or before Closing the legal and
beneficial owner of the number and class of shares of RPI as
set forth below, free and clear of all Encumbrances, and the
RPI Shares have been duly and validly issued and are
outstanding as fully paid and non-assessable shares in the
capital of RPI.
Registered and Class of Shares Number of Shares
Beneficial Owner Owned Owned
R.P.I.M. Minerals Ltd. common registered 100 (one hundred)
non-documentary
shares
- 17 -
4.7. CORPORATE RECORDS
The Corporate Records of both the Company and RPI are complete and
accurate in all material respects and all corporate proceedings and
actions reflected in such Corporate Records have been conducted or
taken in compliance with all Applicable Laws in all material respects
and with the articles and by-laws of the Company or Charter and other
foundation documents of RPI, as the case may be. Neither the Company
nor RPI is a party to or subject to any unanimous shareholders
agreement. True and correct copies of the share certificate books,
equity ownership records and registers of shareholders have been
provided to the Purchaser. Such equity ownership records accurately
reflect all transactions since the inception of the Company and RPI and
the current share ownership of the Company and RPI. Without limiting
the generality of the foregoing, (i) the minutes books of RPI contain
complete and accurate minutes of all meetings of shareholders held
since incorporation and all such meetings were properly called and
held, (ii) the minutes books of RPI contain all resolutions passed by
the directors and shareholders (and committees, if any) and all such
resolutions were properly passed, (iii) the shareholders' register of
RPI is duly maintained, complete and accurate, all records have been
properly made thereto, and (iv) the registers of directors and officers
of RPI (if any) are complete and accurate and all former and present
directors and officers were properly elected or appointed, as the case
may be.
4.8. NO OPTIONS
No Person has any agreement, right or option, present or future,
contingent, absolute or capable of becoming an agreement, right or
option or which with the passage of time or the occurrence of any event
could become an agreement, right or option to acquire either the
Purchased Shares or the RPI Shares or any of them.
4.9. CONSENTS AND APPROVALS
Except as set out in Schedule 4.9, no Licence from any Governmental
Authority and no registration, declaration or filing by the Vendor with
any such Governmental Authority, regulatory body or agency, or court is
required in order for the Vendor to:
(a) consummate the transactions contemplated by this Agreement;
(b) execute and deliver all of the documents and instruments to be
delivered by the Vendor under this Agreement;
(c) duly perform and observe the terms and provisions of this
Agreement; or
(d) render this Agreement legal, valid, binding and enforceable.
4.10. NO VIOLATION
The execution, delivery performance of this Agreement by the Vendor,
and the consummation by the Vendor of the transactions contemplated
hereby or thereby, do not:
- 18 -
(a) contravene or conflict with any of the Vendor's, the Company's
or RPI's constating documents;
(b) constitute or result in a violation by the Vendor, the Company
or RPI of any provision of any Applicable Law;
(c) constitute or result in a violation of, or give to any Person
(after the giving of notice or otherwise) any right of
termination, amendment, acceleration or cancellation of or
under, any written or unwritten License necessary for the
conduct of the Business held by, or granted to, the Vendor,
the Company or RPI;
(d) constitute or result in a violation or a breach of any
provision of, or give to any Person (after the giving of
notice or otherwise) any right of termination, amendment,
acceleration or cancellation of or under, any of the Material
Contracts or any order, writ, injunction, decree, statute,
rule or regulation applicable to it, or constitute a default
(or would, with the passage of time or the giving of notice,
or both, constitute a default) under any Material Contract to
which RPI is a party or by which it is bound; or
(e) result in the imposition of any Encumbrance upon the Purchased
Shares or any of the RPI Assets.
4.11. ABSENCE OF OTHER INTERESTS
(a) The Company does not own any shares in or other securities of,
or have any interest in the Assets or business of, any other
Person, other than RPI.
(b) Except as set out in Schedule 4.11(b), RPI does not own any
shares in or other securities of, or have any interest in the
Assets or business of, any other Person.
4.12. NATURE OF BUSINESSES
(a) The Company is not currently an operating business and does
not hold any interest, whether freehold, leasehold or
otherwise, in any real property.
(b) The Business is the only business carried on by RPI on the
date hereof.
4.13. COMPLIANCE WITH LAWS, LICENCES AND PERMITS
RPI has conducted and is conducting the Business in compliance in all
material respects with Applicable Laws and possesses the Licenses and
all material Permits issued by the appropriate Governmental Authority
necessary to carry on the Business, is in compliance in all material
respects with the terms and conditions of the Licenses and Applicable
Laws material to the operations thereof, and neither the Vendor nor RPI
has received any notice of the modification, revocation or cancellation
of, or any intention to modify, revoke or cancel or any proceeding
relating to the modification, revocation or cancellation of any of the
Licences or Permits which, singly or in the aggregate, if the subject
of an unfavourable decision, order, ruling or finding, would have an
Material Adverse Effect on the conduct of the Business or operations
of, or the RPI Assets,
- 19 -
liabilities (contingent or otherwise), condition (financial or
otherwise) or prospects of, RPI.
4.14. AGREEMENTS
Except as set out in Schedule 4.14, neither the Company nor RPI is a
party to any Contracts (other than the Material Contracts, as
hereinafter defined), leases, agreements, indentures, mortgages,
encumbrances, security interests, deeds of trust or other instruments.
4.15. MATERIAL CONTRACTS
Schedule 4.15 sets forth a true and complete list of all Material
Contracts by which either the Company or RPI are bound, or to which
either the Company or RPI are subject. Neither the Vendor, the Company
nor RPI has received any notice of non-compliance or breach of such
Material Contracts. Neither the Company nor RPI is in material breach
pursuant to the terms of any of the Material Contracts nor, to the best
of the knowledge of the Vendor, is any other party in breach of their
obligations pursuant to the Material Contracts. All of the Material
Contracts have been duly authorized, are in full force and effect,
unamended, are valid and binding and are enforceable in accordance with
their terms and the Vendor is not aware of any intention on the part of
any of the other parties thereto to terminate or materially alter any
such Contracts.
4.16. NO CONTRACTUAL CONSENTS REQUIRED
There is no requirement under any Material Contract to give any notice
to, or to obtain the consent or approval of, any party to such Material
Contract relating to transactions contemplated by this Agreement.
4.17. LITIGATION
There is no Action in progress, threatened or pending against, or
relating to the Company, RPI or affecting the RPI Assets or the
Business which might materially and adversely affect the RPI Assets,
the Business, future prospects or the financial condition of either the
Company or RPI, and there is no injunction, rule or Order of any court,
governmental department, commission, agency, instrumentality or
arbitrator outstanding against the Company or RPI.
4.18. LEASED ASSETS
The Company is not a party to any leases, licences or similar
agreements for the rental or lease of Assets. Schedule 4.18 sets forth
a true and complete list of all Assets in the possession or custody of
RPI which are leased or are held under licence, loan, operating
agreement, conditional sales Contract, title retention agreement or
similar arrangement and accurately describes the leases, licences,
agreements or other documentation relating thereto. All rental or other
payments required to be paid by RPI pursuant to such leases, licences,
agreements or other documentation relating thereto have been duly paid
and RPI is not otherwise in default in meeting its obligations under
this Agreement.
- 20 -
4.19. THE LICENCES
As from the date of its issuance, each of the Licenses is validly
issued to RPI and registered in accordance with Applicable Law; in
particular but without limitation, no act or omission has occurred in
the process of the issuance of each of the Licenses that would, or
would with the passage of time, constitute a breach or violation of any
Applicable Laws and regulations. RPI holds its subsoil rights under
valid, subsisting and enforceable title documents and other recognized
and enforceable instruments; all property, leases or claims and all
property, leases or claims in which RPI has any interest or right have
been validly located and recorded in accordance with all Applicable
Laws and are valid and subsisting; RPI has all necessary surface
rights, access rights and other necessary rights and interests relating
to the subsoil within the License Area granting RPI the right and
ability to use subsoil pursuant to the Licences' terms, with only such
exceptions as do not materially interfere with the use made by RPI of
the rights or interests so held and each of the proprietary interests
or rights and each of the documents, agreements, including, but not
limited to, the Material Contracts, leases, instruments and obligations
relating thereto are currently in good standing in the name of RPI.
4.20. AGREEMENTS
Any and all of the agreements and other documents and instruments
pursuant to which RPI holds the Licences are valid and subsisting
agreements, documents or instruments in full force and effect,
enforceable in accordance with the terms thereof; RPI is not in default
of any of the material provisions of any such agreements, documents or
instruments nor has any such default been alleged under the Licenses
and there has been no material default under any land lease, Permits or
claim and all taxes required to be paid with respect to such rights and
assets to the date hereof have been paid.
4.21. CONDUCT OF BUSINESS
The conduct of the Business under any of the Licences is not subject to
any restriction or limitation other than those registered against title
to the lands, contained in applicable zoning regulations or that are of
general application and the conduct of any such Business is not in
contravention of any Applicable Law of any court or Governmental
Authority having jurisdiction, including zoning requirements.
4.22. PERMITS
RPI holds all Permits issued by any Governmental Authority which are
necessary or desirable in connection with the conduct and operation of
the Business and the ownership, leasing or use of the RPI Assets as the
same are now owned, leased, used conducted or operated. As from the
date of their issuance the Permits are validly issued to RPI,
registered in accordance with Applicable Law and remain in full force
and effect and unamended. RPI is not in breach of or in default under
any of the terms or conditions thereof, and all such Permits are listed
in Schedule 4.22 .
- 21 -
4.23. TITLE TO THE ASSETS
The Company does not own or possess any Assets other than the RPI
Shares. RPI owns, possesses and has good and marketable title to the
RPI Assets (other than leased personal property), including without
limitation, those RPI Assets reflected in the balance sheet of the
Financial Statements free and clear of all Encumbrances. At the Closing
Time, such RPI Assets are free and clear of any and all Encumbrances.
Except as may be disclosed by the Vendor in writing to the Purchaser
between the date of this Agreement and the Closing Time and accepted by
the Purchaser, none of the RPI Assets are in the possession of or under
the control of any other Person other than for repair or other purpose
in the ordinary and customary course of the Business.
4.24. NO OPTIONS, ETC.
No Person has any written or oral agreement, option, understanding or
commitment, or any right or privilege capable of becoming such for the
purchase or other acquisition from RPI of any of its Assets.
4.25. BOOKS AND RECORDS
The Books and Records of both the Company and RPI have been fully,
properly and accurately kept and completed in all material respects and
all transactions involving either the Company or RPI have been
accurately recorded in such Books and Records.
4.26. UNAUDITED FINANCIAL STATEMENTS
Financial accounts of RPI are kept in accordance with all the
applicable rules and norms stipulated by the current legislation of the
Russian Federation, and reflect all the information concerning the
actual state of things in RPI, including its activities, property and
obligations. The unaudited financial statements of RPI for the year
ended December 31, 2006 and for the three months ended March 31, 2007,
copies of which are attached hereto as Schedule 4.26 (the "UNAUDITED
FINANCIAL STATEMENTS"), were prepared in accordance with Russian
generally accepted accounting principles applied on a basis consistent
with that of previous periods and are substantially correct in every
particular and present fairly and accurately the assets, liabilities
and financial condition and position of RPI as at the dates thereof and
such financial statements contain no direct or implied statement of a
material fact which is untrue on the date of such financial statements
and do not omit to state any material fact which is required by
applicable auditing standards in Russia or by Applicable Law to be
stated or reflected therein or which is necessary to make the
statements contained therein not misleading. Since the date of the
Unaudited Financial Statements there has been no Material Adverse
Change in the financial condition or business of RPI.
4.27. ABSENCE OF CHANGES
Since the date of the balance sheets included in the Financial
Statements there have not been:
- 22 -
(a) any changes in the condition or operations of the Business,
the RPI Assets or financial affairs of RPI which would,
individually or in the aggregate, constitute a Materially
Adverse Change; or
(b) any damage, destruction or loss, labour trouble or other
event, development or condition, of any character (whether or
not covered by insurance) which is not generally known or
which has not been disclosed to the Purchaser, which has or
may materially adversely affect the Business, the RPI Assets
or future prospects of the Company and/or RPI.
4.28. ABSENCE OF UNUSUAL TRANSACTIONS
Except as may be disclosed by the Vendor in writing to the Purchaser
between the date of this Agreement and the Closing Time and accepted by
the Purchaser, since the date of the balance sheets included in the
Financial Statements RPI has not:
(a) transferred, assigned, sold or otherwise disposed of any of
the RPI Assets or cancelled any debts or claims except in each
case in the Ordinary Course of Business;
(b) incurred or assumed any obligation or Liability, except
unsecured current obligations and liabilities incurred in the
Ordinary Course of Business;
(c) issued or sold any shares in its capital or any warrants,
bonds, debentures or other corporate securities or issued,
granted or delivered any right, option or other commitment for
the issue of any such or other securities;
(d) discharged or satisfied any Encumbrances, or paid any
obligation or Liability, other than current liabilities
disclosed in the Financial Statements or current liabilities
incurred since the date thereof in the Ordinary Course of
Business;
(e) declared, made, or committed itself to make any payment of any
dividend or other distribution in respect of any of its
shares, nor has it purchased, redeemed, subdivided,
consolidated, or reclassified any of its shares;
(f) suffered an operating loss or any material extraordinary loss
or entered into any material commitment or transaction not in
the Ordinary Course of Business;
(g) waived or surrendered any right of substantial value;
(h) made any gift of money or of any of the RPI Assets to any
Person;
(i) purchased or sold any of the RPI Assets;
(j) amended or changed or taken any action to amend or change its
memorandum or articles;
- 23 -
(k) increased or agreed to increase the pay of, or paid or agreed
to pay any pension, bonus, share of profits or other similar
benefit to, any director, employee or officer or former
director, employee or officer of RPI;
(l) made payments of any kind to or on behalf of either of the
Vendor or any Affiliate or associate of the Vendor, nor under
any management agreement with the Company or RPI save and
except business related expenses and salaries in the Ordinary
Course of Business and at the regular rates payable to them;
(m) mortgaged, pledged, subjected to any lien, granted an option
or a security interest in respect of or otherwise encumbered
any of the RPI Assets; or
(n) authorized or agreed or otherwise have become committed to do
any of the foregoing.
4.29. CONDITION OF THE COMPANY
The Company does not and as at the Closing Time will not have any
indebtedness or any liabilities or obligations, whether accrued,
absolute, contingent or otherwise, or any assets except the RPI Shares.
4.30. BANK ACCOUNTS AND POWERS OF ATTORNEY
Schedule 4.30 is a correct and complete list showing (i) the name of
each bank in which either the Company and/or RPI has an account or safe
deposit box, and (ii) the names of all Persons holding powers of
attorney from either the Company and/or RPI. Copies of the powers of
attorney have been provided to the Purchaser.
4.31. TAXES
To the knowledge of the Vendor, each of the Company and RPI have filed
or caused to be filed, within the times and in the manner prescribed by
Tax Laws, all Tax Returns which are required to be filed by it. The
information contained in such Tax Returns is correct and complete in
all material respects and, to the knowledge of the Vendor, such Tax
Returns reflect accurately all Tax Liabilities of the Company and RPI
for the periods covered thereby. All Taxes that are or may become
payable by or due from the Company and RPI have been fully paid or
fully disclosed and fully provided for in the Books and Records and the
Unaudited Financial Statements or the Audited Financial Statements as
the case may be. The Tax Liabilities under Tax Laws of each of the
Company and RPI has been assessed for all fiscal years to and including
the fiscal year ended on December 31, 2006. There are no outstanding
agreements or waivers extending the statutory period providing for an
extension of time with respect to the assessment or re-assessment of
Tax or the filing of any Tax Return by, or any payment of any Tax by
the Company and RPI. No notice of assessment or reassessment for Taxes
has been received and to the knowledge of the Vendor, no examination of
any Tax Return of any of the Company and RPI is currently in progress.
Each of the Company and RPI has withheld from each payment made by it
the amount of all Taxes required to be withheld therefrom and has
- 24 -
paid the same to the proper Taxing Authority within the time prescribed
under any Tax Law.
4.32. ABSENCE OF GUARANTEES
Neither the Company nor RPI have given or agreed to give, nor is the
Company or RPI a party to or bound by, any guarantee of indebtedness or
other obligations of any Person nor any other commitment by which
either the Company or RPI is, or is contingently, responsible for such
indebtedness or other obligations.
4.33. INDEBTEDNESS TO VENDOR
Neither the Company nor RPI is indebted to the Vendor or any directors,
officers or employees of the Vendor or any affiliate or associate of
any of them, on any account whatsoever.
4.34. BANKRUPTCY, ETC. No bankruptcy, insolvency or receivership proceedings
have been instituted or are pending against the Vendor, the Company or
RPI and the Vendor, the Company and RPI are able to satisfy their
respective liabilities as they become due.
4.35. EMPLOYEES AND EMPLOYEE PLANS
The Company does not have, nor has ever had, any employees, and it is
not party to, nor has ever been a party to any Employee Plan. To the
knowledge of the Vendor any employees of RPI have been paid all amounts
owing to them in the ordinary course of business by RPI including
salary, hourly wages, bonuses, vacation pay, commissions and other like
payments up and until the closing. Schedule 4.35 attached hereto
contains a list of all employees of RPI, the terms of their employment
with RPI and any Employee Plan that RPI has in place or has ever had in
place.
4.36. NO DISSOLUTION, WINDING-UP, ETC.
There shall be no dissolution, winding-up, liquidation or similar
proceedings commenced or pending in respect of RPI. Without limiting
the generality of the foregoing, RPI shall not be affected by any
liquidation proceedings, whether actual or threatened, resulting from
the value of RPI's net assets being at the end of the second and each
subsequent fiscal year following the year of RPI's state registration
below the minimum amount of charter capital established by Applicable
Law.
4.37. WITHHOLDING
To the knowledge of the Vendor, all amounts required to be withheld by
RPI from its employees' salaries and to be paid to any Governmental
Authority under any Applicable Laws have been withheld and paid;
4.38. ENVIRONMENTAL MATTERS
(a) To the knowledge of the Vendor, RPI has been and is, and the
Business has been and is, operated in compliance with all
applicable Environmental Laws.
- 25 -
(b) RPI has obtained all Environmental Permits required for the
operation of the Business, or any part thereof, all of which
are described in Schedule 4.22. Each Environmental Permit is
valid, subsisting and in good standing and RPI is not in
default or breach of any Environmental Permit and no
proceeding is pending or threatened to revoke, amend or limit
any Environmental Permit.
(c) To the knowledge of the Vendor, neither the Vendor, it
Affiliates nor RPI have used or permitted to be used any of
the subsoil within the License Area or lands which it owned,
leased, occupied, controlled or licensed at any prior time, to
generate, manufacture, process, distribute, use, treat, store,
dispose of, transport or handle any Hazardous Substance except
in compliance with the Environmental Permits and all
applicable Environmental Laws.
(d) Neither the Vendor nor RPI has received any notice of, or been
prosecuted for an offence alleging violation of or
non-compliance with any Environmental Law, and neither the
Vendor nor RPI has settled any allegation of violation or
non-compliance short of prosecution.
(e) Neither the Vendor nor RPI is aware of any Orders of
Environmental Authorities relating to environmental matters
requiring any work, repairs, construction or capital
expenditures to be made with respect to the Business or the
RPI Assets (whether currently owned, leased, occupied,
controlled or licensed or owned, leased, occupied, controlled
or licensed at any time prior to the date of this Agreement).
(f) All Hazardous Substances used in whole or in part by the
Vendor or RPI or resulting from the Business have been
disposed of, treated and stored in compliance with all
Environmental Permits and all Environmental Laws.
(g) Neither the Vendor nor RPI has received any notice from any
Environmental Authorities or any other Person that the
Business or the operation of any of the RPI Assets is in
violation of any Environmental Law or any Environmental Permit
or that it is responsible (or potentially responsible) for the
clean-up of any Hazardous Substances at, on or beneath any of
the RPI Assets (whether currently owned, leased, occupied,
managed, controlled or licensed, or owned, leased, occupied,
managed, controlled or licensed at any time prior to the date
of this Agreement), or at, on or beneath any other land or in
connection with any waste or contamination migrating to or
from any of the RPI Assets.
(h) Neither the Vendor nor RPI is the subject of federal, oblast,
respublika, avtonomnyy, okrug, kray, gorod, avtonomnaya
oblast', regional or private Action involving a demand for
damages or other potential Liability with respect to
violations of Environmental Laws or Environmental Permits.
(i) Neither the Vendor nor RPI has buried, dumped, disposed of,
spilled or released any Hazardous Substances within or
adjacent to the License Area or any other area.
- 26 -
(j) To the knowledge of the Vendor, no by-products which may be
Hazardous Substances are currently stored or otherwise located
on any of the RPI Assets in a manner prohibited by any
Environmental Laws.
(k) No Hazardous Substances are migrating to or from any of the
RPI Assets.
(l) All of the real property which RPI has owned, leased,
occupied, managed controlled or licensed at any time is listed
on Schedule 4.38(l).
(m) There are no material reports or documents relating to
environmental matters affecting the RPI Assets, including
without limitation environmental audits, evaluations,
assessments, studies or tests, which have not been made
available to the Purchaser whether by reason of
confidentiality restrictions or otherwise.
4.39. UNDISCLOSED INFORMATION
The Vendor has no information relating to the Company, RPI or the
Business which is not generally known or which has not been disclosed
to the Purchaser.
4.40. COPIES OF DOCUMENTS
True, correct and complete copies of all leases, agreements,
instruments, Material Contracts, Licenses, permits, authorizations and
other documents listed on the Schedules have been delivered to the
Purchaser.
4.41. OTHER REPRESENTATIONS
All statements contained in any certificate or other instrument
delivered by or on behalf of the Vendor pursuant to this Agreement or
in connection with the transactions contemplated by this Agreement
shall be deemed to be representations and warranties by the Vendor
under this Agreement.
5. RELIANCE BY PURCHASER
The Vendor acknowledges and agrees that each of the Purchaser and
Magellan is relying on the representations, warranties, covenants and
obligations of the Vendor contained in this Agreement notwithstanding
any independent searches or investigations that may be undertaken by or
on behalf of the Purchaser and that, except where the Purchaser has
actual knowledge of such information as at the Closing Time, no
information, which should be known, or which may after the Closing Time
become known to the Purchaser, its employees, representatives or
agents, will prejudice, limit, extinguish or otherwise affect the
respective rights of the Purchaser and Magellan with respect to any
misrepresentation or breach of any representation, warranty, covenant
or obligation of the Vendor.
- 27 -
6. COVENANTS OF THE VENDOR
6.1. CONDUCT OF BUSINESS PRIOR TO CLOSING
Except as otherwise contemplated or permitted by this Agreement, during
the period from the date of this Agreement to the Closing Time, the
Vendor shall or shall cause the Company and RPI to:
(a) conduct both the Company's and RPI's businesses in the
ordinary and usual course consistent with past practice and
not, without the prior written consent of the Purchaser, enter
into any transaction which would constitute a breach of any of
the Vendor's representations, warranties or obligations under
in this Agreement;
(b) continue in force and at the same level of coverage, all
existing policies of insurance presently maintained by the
Company and RPI;
(c) not, without the prior written consent of the Purchaser, enter
into any transaction or engage in any act which would have an
adverse effect on the Business;
(d) comply in all material respects with all Applicable Laws
affecting the operation of both the Company's and RPI's
businesses and pay all required Taxes;
(e) pay and discharge all liabilities or obligations of both the
Company and RPI in the ordinary and usual course of business
consistent with past practice, except for such liabilities or
obligations as may be contested by the Company or RPI in good
faith;
(f) not take any action or omit to take any action that would
result in a breach of or render untrue any representation,
warranty, or other obligation of any of the Vendor contained
in this Agreement or result in any of the conditions in
Article 12 or 13 not being satisfied;
(g) provide the Purchaser with all co-operation or support
reasonably required to allow the Purchaser to obtain, at or
before the Closing Date, from the Governmental Authority any
Permits required to permit the completion of the transactions
contemplated by this Agreement;
(h) preserve intact the Business and the Assets, operations and
affairs of both the Company and RPI and carry on the business
and the affairs of both the Company and RPI as currently
conducted, and promote and preserve for the Purchaser the
goodwill of Persons having business relations with the Company
and/or RPI;
(i) take all necessary actions, steps and proceedings that are
necessary or desirable to approve or authorize, or to validly
and effectively undertake, the execution and delivery of this
Agreement and the completion of the transactions contemplated
by this Agreement; and
(j) comply with the provisions of Article 10.
- 28 -
6.2. EXECUTION OF DOCUMENTS
At or prior to the Closing Time, the Vendor shall execute and deliver
all of the documents that it must deliver in order to satisfy the
conditions set out in Article 12.
6.3. REGISTRATION OF DOCUMENTS
Without limiting its obligations under Section 18.10, the Vendor shall
do all such things as are required and customary to register such
documentation as may be required to effect the transfer of the
Purchased Shares to the Purchaser.
6.4. POST-CLOSING COVENANT
The Vendor hereby covenants and agrees that, subsequent to the Closing
Time, the Vendor will, at the request of the Purchaser, execute and
deliver such additional conveyances, transfers and other assurances as
may be required, in the opinion of the Purchaser's Solicitors, acting
reasonably, to carry out the transactions contemplated by of this
Agreement and to transfer the Purchased Shares to the Purchaser.
7. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to and in favour of the Vendor as
follows, as of the date of this Agreement and as of the Closing Time, and hereby
acknowledges and confirms that the Vendor is relying on such representations and
warranties in connection with the transactions contemplated by this Agreement:
7.1. AUTHORITY AND AUTHORIZATION
The Purchaser has due and sufficient right and authority to enter into
this Agreement and to transfer the legal and beneficial title and
ownership of the Centraisa Shares to the Vendor. The execution and
delivery of this Agreement and the completion of the transactions
contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of the Purchaser.
7.2. VALIDITY AND ENFORCEABILITY
This Agreement has been authorized, executed and delivered by the
Purchaser and constitutes a valid and legally binding obligation of the
Purchaser enforceable against the Purchaser in accordance with the
terms thereof and upon being executed and delivered the Transaction
Documents will constitute valid and legally binding obligations of the
Purchaser enforceable against the Purchaser in accordance with the
terms thereof, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
relating to or affecting the rights of creditors generally and except
as limited by the application of equitable principles when equitable
remedies are sought, and by the fact that rights to indemnity,
contribution and waiver, and the ability to sever unenforceable terms,
may be limited by Applicable Laws.
- 29 -
7.3. ORGANIZATION, QUALIFICATION AND GOOD STANDING
The Purchaser is duly incorporated and qualified, licensed and
registered, validly existing, and in good standing, and has all
necessary corporate power, authority and capacity to own and operate
its assets and to carry on its business as presently conducted. Neither
the nature of the business of the Purchaser nor the location or
character of the assets owned by it requires that the Purchaser be
registered or otherwise qualified or to be in good standing in any
other jurisdiction other than in Canada. The Purchaser has made all
necessary filings, under all applicable corporate, securities, taxation
and other Applicable Laws to which it is subject.
7.4. PREVIOUS NAMES OR SUBSIDIARIES
There are no corporate predecessors of the Purchaser, no previous
corporate names of the Purchaser and Schedule 7.4 sets forth a true and
complete list with accurate description of all subsidiaries where the
Purchaser holds or has ever held any participation.
7.5. AUTHORIZED AND ISSUED CAPITAL
The authorized capital of the Purchaser consists of an unlimited number
of common shares of which 25,769,230 shares have been validly issued
and are outstanding as fully paid and non-assessable shares as of May
7, 2007. The Centrasia Shares will constitute approximately 24.5% of
the issued and outstanding shares in the capital of the Purchaser on
the Closing Date. The Centrasia Shares are not subject to any
pre-emptive rights and there are no shareholder agreements, voting
trust agreements or other Contracts restricting voting or dividend
rights or transferability with respect to such shares except as
restrictions specified in Section 2.7.
7.6. TITLE TO THE CENTRASIA SHARES
The Centrasia Shares to be delivered to the Vendor are not encumbered
either with a mortgage, pledge, charge, lien, option, right of first
refusal, right of pre-emption, claims or any other rights of the third
parties of any kind or any other encumbrance or security interest in
favour of any third party of any kind having similar effect. The
Centrasia Shares shall be issued with all ancillary and voting rights
relating to them.
7.7. CORPORATE RECORDS
The Corporate Records of the Purchaser are complete and accurate in all
material respects and all corporate proceedings and actions reflected
in such Corporate Records have been conducted or taken in compliance
with all Applicable Laws in all material respects and with the articles
and by-laws of the Purchaser, as the case may be. The Purchaser is not
a party to or subject to any unanimous shareholders agreement.
7.8. NO VIOLATION
The execution, delivery performance of this Agreement by the Purchaser,
and the consummation by the Purchaser of the transactions contemplated
hereby or thereby, do not:
- 30 -
(a) contravene or conflict with any of the Purchaser's constating
documents;
(b) constitute or result in a violation by the Purchaser of any
provision of any Applicable Law; or
(c) result in the imposition of any Encumbrance upon the Centrasia
Shares.
7.9. NO CONTRACTUAL CONSENTS REQUIRED
There is no requirement under any Material Contract on the part of the
Purchaser to give any notice to, or to obtain the consent or approval
of, any party to such Material Contract relating to transactions
contemplated by this Agreement.
7.10. BOOKS AND RECORDS
The Books and Records of the Purchaser have been fully, properly and
accurately kept and completed in all material respects and all
transactions have been accurately recorded in such Books and Records.
7.11. BANKRUPTCY, ETC.
No bankruptcy, insolvency or receivership proceedings have been
instituted or are pending against the Purchaser and the Purchaser is
able to satisfy its liabilities as they become due.
7.12. OTHER REPRESENTATIONS
All statements contained in any certificate or other instrument
delivered by or on behalf of the Purchaser pursuant to this Agreement
or in connection with the transactions contemplated by this Agreement
shall be deemed to be representations and warranties by the Purchaser
under this Agreement.
7.13. UNDISCLOSED INFORMATION
The Purchaser has no information relating to the Purchaser and its
assets and business which has not been disclosed to the Vendor or
otherwise is available on the public record on xxx.xxxxx.xxx.
8. RELIANCE BY VENDOR
The Purchaser acknowledges and agrees that the Vencor is relying on the
representations, warranties, covenants and obligations of the Purchaser
contained in this Agreement notwithstanding any independent searches or
investigations that may be undertaken by or on behalf of the Vencor and
that, except where the Vendor has actual knowledge of such information
as at the Closing Time, no information, which should be known, or which
may after the Closing Time become known to the Vendor, its employees,
representatives or agents, will prejudice, limit, extinguish or
otherwise affect the respective rights of the Vendor with respect to
any misrepresentation or breach of any representation, warranty,
covenant or obligation of the Purchaser.
- 31 -
9. COVENANTS OF THE PURCHASER
9.1. EXECUTION OF DOCUMENTS
At or prior to the Closing Time, the Purchaser shall execute and
deliver all of the documents that it must deliver in order to satisfy
the conditions set out in Article 13.
9.2. REGISTRATION OF DOCUMENTS
Without limiting its obligations under Section 18.10, the Purchaser
shall do all such things as are required and customary to register such
documentation as may be required to effect the transfer of the
Purchased Shares to the Purchaser.
9.3. PAYMENT OF THE PURCHASE PRICE
At and after Closing, subject to the provisions of Section 10.1, the
Purchaser shall pay to the Vendor the portions of the Purchase Price as
they become due in accordance with the schedule set out in Section 2.2.
9.4. VENDOR'S RIGHT TO APPOINT A DIRECTOR
The Purchaser covenants and agree that:
(a) on the Closing Date (or on any date thereafter and on or
before that date which is three years from the Closing Date),
the Vendor shall have the right to appoint a representative of
the Vendor to the Board of Directors of the Purchaser; and
(b) if such appointment is to be made on the Closing Date, that
person shall be granted a stock option to purchase up to
500,000 shares of the Purchaser at the price of the financing
referenced in Section 12.11 below for a period of five years
from the Closing Date.
10. AGENCY SERVICES
10.1. DIRECTION TO PAY COMMISSION.
If this Agreement is not terminated pursuant to Article 16 and subject
to any equities between the Vendor and the Purchaser, for the services
to the Vendor in connection with the arranging of the Sales Transaction
and the execution of this Agreement and the proper transfer of the
Purchased Shares and title thereto to the Purchaser, the Vendor directs
the Purchaser to pay or issue to the Agent as the case may be an agency
fee of 3% of and from the following:
(a) the payment referred to in Section 2.2(a);
(b) the 3,125,000 Centrasia Shares to be delivered to the Escrow
Bank pursuant to Section 2.2(b) in escrow to be released on
completion of the Closing;
- 32 -
(c) the balance of the Centrasia Shares to be delivered to the
Escrow Bank pursuant to Section 2.2(b) in escrow, to be dealt
with in accordance with the terms of the Escrow Agreement as
provided in Section 2.5; and
(d) the payment made pursuant to Section 2.2(c), as the same may
be adjusted pursuant to Section 2.4 or Section 2.5; and
(e) the payment made pursuant to Section 2.2(d), as the same may
be adjusted pursuant to Section 2.4 or Section 2.5.
10.2. NO OTHER FEES
Subject to the foregoing, each of the Parties acknowledges and agrees
that it is not aware of any current or possible future claim for
brokerage, agency, finder's fee or commission in connection with the
transactions contemplated by this Agreement and that if any such claim
should arise through, or under, or by virtue of any action taken by any
Party, such Party shall indemnify and hold harmless the others in
respect thereof.
11. DUE DILIGENCE AND DISCLOSURE ISSUES
11.1. ACCESS FOR INVESTIGATION
Between the date of this Agreement and the Closing Date the Vendor
shall:
(a) permit, and shall cause the Company and RPI to permit the
Purchaser and its directors, officers, employees, agents,
advisors and other representatives, to have access during
normal business hours to inspect, investigate and report on
the RPI Assets and all the books, accounts, records, technical
reports, governmental filings and other data of the Company
and RPI (including all corporate, accounting and Tax records
and any electronic or computer accessed data);
(b) cause the Company and RPI to furnish, and require that both
the Company's and RPI's principal bankers, appraisers and
independent auditors and other advisors furnish, to the
Purchaser such financial and operating data and other
information with respect to the Business, the subsoil within
the Licence Area and the Assets of both the Company and RPI as
the Purchaser shall from time to time reasonably request to
allow confirmation of the matters warranted in Article 4; and
(c) assist the Purchaser and its accountants to prepare the
Audited Financial Statements.
11.2. CONFIDENTIALITY
The Purchaser shall hold and shall ensure that its directors, officers,
employees, agents, advisors and other representatives hold the
information received in relation to any inspections conducted under
Section 11.1 above in confidence, subject to the right of any Party to
release any information as required by Applicable Law and subject to
the availability of such information through other public sources.
- 33 -
11.3. NEWS RELEASES AND DISCLOSURE
No news release, public notice or other publicity concerning the Sale
Transaction will be made without the prior approval of all Parties
hereto, such approval not to be unreasonably withheld or delayed.
Notwithstanding the foregoing:
(a) if any disclosure or announcement is required by law
concerning the Sale Transaction, the party or Parties making
such disclosure may do so without the prior approval of all
Parties hereto, so long as they consult with such other
Parties as to the wording of such disclosure or announcement
prior to releasing it; and
(b) the Purchaser will be entitled, without the prior approval of
any other party hereto, to disclose a brief description of the
acquisition and a general description of the Sale Transaction
for publication in public disclosure documents; provided that
the approval of the other Parties, not to be unreasonably
withheld or delayed, shall be required if such description
includes any information not previously made or released to
the public.
11.4. DISCLOSURE ACKNOWLEDGEMENTS
The Vendor acknowledges that in accordance with the requirements of the
TSX Venture Exchange (on which the shares of the Purchaser are listed
for trading) and of the relevant Canadian securities regulatory
authorities:
(a) a shareholder of the Vendor may have to provide the Purchaser
with a personal information form (in Form 2A of the TSX
Venture Exchange);
(b) the Vendor will become an "insider" (as defined in the
policies of the TSX Venture Exchange and by relevant Canadian
securities laws) of the Purchaser at Closing by virtue of it
owning more than 10% of the issued shares of the Purchaser,
and it will be required to file insider reports and it will
have to issue an "early warning" news release in accordance
with the relevant Canadian securities laws.
12. PURCHASER'S CONDITIONS OF CLOSING
The obligation of the Purchaser to complete the transactions contemplated by
this Agreement is subject to the following conditions to be fulfilled or
performed prior to Closing, which conditions are for the exclusive benefit of
the Purchaser and may be waived, in whole or in part, by the Purchaser in its
sole discretion:
12.1. TRUTH AND ACCURACY OF REPRESENTATIONS OF THE VENDOR AT CLOSING
The representations and warranties of the Vendor made in Article 4
shall be true and correct at the Closing Time with the same force and
effect as if made at and as of the Closing Time and the Purchaser shall
have received from the Vendor a certificate executed by the Vendor
certifying the representations and warranties of the Vendor set forth
in Article 4 are true and correct as at the Closing Date.
- 34 -
12.2. PERFORMANCE OF OBLIGATIONS
The Vendor shall have performed and complied with all of its the
obligations under this Agreement.
12.3. ABSENCE OF INJUNCTIONS
No statute, rule, regulation, Order, temporary restraining order,
preliminary or permanent injunction or other order enacted, entered
promulgated, enforced or issued by any Governmental Authority or other
legal restraint preventing or prohibiting the transactions contemplated
by this Agreement shall be in effect and no Action shall have been
instituted or be pending before any Governmental Authority to restrain
or prohibit the transactions contemplated by this Agreement.
12.4. ABSENCE OF CHANGE OF CONDITIONS
No event shall have occurred or condition or situation shall have
arisen or Applicable Law shall have been introduced that could
reasonably be expected to have a Material Adverse Effect upon the
financial condition, results of operations or business prospects of the
Company or RPI.
12.5. CLOSING DOCUMENTATION
The Purchaser shall have received from the Vendor and, where
applicable, the Company and/or RPI, the following closing
documentation:
(a) a certificate of incumbency of the Vendor showing the
authorized signatories of the Vendor and their signatures;
(b) a certified copy of the appropriate register of members of RPI
showing the Company as the registered owner of the RPI Shares;
(c) share certificate(s) representing the Purchased Shares issued
in the name of the Vendor, duly endorsed for transfer to the
Purchaser;
(d) a certified copy of resolutions of the directors of the
Company authorizing the transfer of the Purchased Shares to
the Purchaser, the registration of the Purchased Shares in the
name of the Purchaser, the issue of share certificates
representing the Purchased Shares registered in the name of
the Purchaser and effecting the necessary changes in the
directors and officers of the Company;
(e) a certified copy of resolutions of the holder of the shares of
the Company authorizing the transactions contemplated by this
Agreement and the transfer of the Purchased Shares to the
Purchaser;
(f) share certificates for the Purchased Shares registered in the
name of the Purchaser, signed by the appropriate director(s)
and/or officer(s) of the Company or by the Department of
Registrar of Companies of Ministry of Commerce, Industry and
Tourism of Cyprus as appropriate under the laws of Cyprus;
- 35 -
(g) a certified copy of certificate of shareholders showing the
Purchaser as the registered owner of the Purchased Shares,
issued by the Department of Registrar of Companies of Ministry
of Commerce, Industry and Tourism of Cyprus;
(h) duly signed resignations of each of the directors and officers
of the Company designated by the Purchaser;
(i) all other necessary consents, waivers, including consents to
change of control or waivers of pre-emptive rights, and
authorizations required to enable the transfer of the
Purchased Shares to the Purchaser pursuant to this Agreement;
(j) all such instruments of transfer, duly executed, that in the
opinion of the Purchaser, acting reasonably, are necessary to
effect and evidence the transfer of the Purchased Shares to
the Purchaser free and clear of all Encumbrances;
(k) the corporate minutes books and all other Books and Records of
both the Company and RPI, accurate and current in all material
respects;
(l) the corporate seal of both the Company and RPI, if any;
(m) the certificate of the Vendor referred to in Section 12.1;
(n) written resignations of all directors and officers of the
Company and RPI as determined by the Purchaser, together with
an executed general mutual release from each of them in form
and substance satisfactory to the Purchaser, acting
reasonably;
(o) if the Audited Financial Statements are available, a
certificate executed by the Vendor certifying that the Audited
Financial Statements were prepared in accordance with
International Financial Reporting Standards and are
substantially correct in every particular and present fairly
and accurately the assets, liabilities and financial condition
and position of the Company and RPI on a consolidated basis as
at the date thereof and such consolidated financial statements
contain no direct or implied statement of a material fact
which is untrue on the date of such consolidated financial
statements and do not omit to state any material fact which is
required by International Financial Reporting Standards or by
Applicable Law to be stated or reflected therein or which is
necessary to make the statements contained therein not
misleading;
(p) such other documents as the Purchaser may reasonably require
to complete the purchase and sale of the Purchased Shares;
(q) the Shareholder Guarantee;
(r) the Shareholders' Agreement; and
(s) the Escrow Agreement.
- 36 -
12.6. LEGAL OPINION
The Purchaser shall have received an opinion satisfactory to it from
the Vendor's Solicitors addressed to it and to Magellan as to:
(a) the validity of the incorporation of the Company, the good
standing of the Company, the validity of the issue and full
payment of the Purchased Shares;
(b) the validity of the incorporation of RPI, the good standing of
RPI, the validity of the issue and full payment of the RPI
Shares;
(c) the due authorization, execution and delivery of this
Agreement by the Vendor and that it is legal, valid and
binding and enforceable against the Vendor;
(d) the due authorization, execution and delivery of the
Shareholder Guarantee and that it is legal, valid and binding
and enforceable against the signatories to it;
(e) the due authorization, execution and delivery of the
Shareholder's Agreement and that it is legal, valid and
binding and enforceable against the signatories to it;
(f) the due authorization, execution and delivery of the Escrow
Agreement and that it is legal, valid and binding and
enforceable against the Vendor; and
(g) a title opinion on the Licences in the form acceptable to the
Purchaser's local Russian legal counsel and the Purchaser's
Solicitors.
12.7. GOOD TITLE TO PURCHASED SHARES
The Purchaser shall have received all documents required for the
Purchaser to have acquired from the Vendor, valid title to the
Purchased Shares free and clear of all Encumbrances, all of which the
Purchaser covenants to deliver.
12.8. NO ACTION
No Action shall have been commenced or continued in any jurisdiction
and there shall be no other claims, in any case that in the reasonable
opinion of the Purchaser have a reasonable possibility of adversely
affecting the title of the Purchaser to the Purchased Shares or the
carrying on of the management of the Company and/or RPI or the Business
in the ordinary course after Closing.
12.9. NO DEFAULT
The Purchaser shall be satisfied, acting reasonably, that the execution
and delivery of this Agreement and the completion of the transactions
contemplated by this Agreement shall not constitute defaults under any
Material Contracts or any of the Licences.
- 37 -
12.10. NI 43-101 REPORT
The Purchaser shall have received in respect of the Licences a
technical report under National Instrument 43-101 Standards of
Disclosure for Mineral Projects signed in accordance with Section 6.2
thereof.
12.11. FINANCING
The Purchaser shall have received financing commitments satisfactory to
it to assure its ability to put the Purchaser in sufficient funds to
make the payments required by this Agreement and to provide the funds
to carry out the necessary work programs within the Licence Area.
12.12. CONSENTS, AUTHORIZATIONS AND REGULATORY APPROVAL
All consents, approvals, orders and authorizations of any Persons
required in connection with the completion of any of the transactions
contemplated by this Agreement shall have been obtained by the
Purchaser including, without limitation:
(a) approval of the Sale Transaction and the other transactions
contemplated hereunder by the Board of Directors of the
Purchaser;
(b) approval of the Sale Transaction and the other transactions
contemplated hereunder by the holders of a majority of the
issued common shares of the Purchaser; and
(c) the Purchaser shall have obtained from the TSX Venture
Exchange (i) approval for the issuance of the Centrasia Shares
pursuant to this Agreement, and (ii) acceptance for filing of
this Agreement and of the completion of the transactions
contemplated hereunder, if required.
All of the foregoing conditions are declared to be for the exclusive benefit of
the Purchaser and may be waived by the Purchaser in writing in whole or in part
on or before the Closing Date. Notwithstanding any such waiver, the completion
of transactions contemplated by this Agreement by the Purchaser shall not
prejudice or affect in any way the rights of the Purchaser and Magellan
respectively in respect of the representations and warranties of the Vendor in
this Agreement.
13. VENDOR'S CONDITIONS OF CLOSING
The obligation of the Vendor to complete the transactions contemplated by this
Agreement is subject to the following conditions to be fulfilled or performed
prior to Closing, which conditions are for the exclusive benefit of the Vendor
and may be waived, in whole or in part, by the Vendor in its sole discretion:
13.1. TRUTH AND ACCURACY OF REPRESENTATIONS OF THE PURCHASER AT CLOSING
The representations and warranties of the Purchaser made in Article 8
shall be true and correct at Closing and with the same force and effect
as if made at and as of Closing and
- 38 -
the Vendor shall have received from the Purchaser a certificate
executed by the Purchaser certifying that the representations and
warranties of the Purchaser set forth in Article 8 are true and correct
as at the Closing Date.
13.2. PERFORMANCE OF OBLIGATIONS
The Purchaser shall have fulfilled or complied with all covenants
contained in this Agreement to be fulfilled or complied with by it at
or prior to the Closing.
13.3. ABSENCE OF INJUNCTIONS
No statute, rule, regulation, Order, temporary restraining order,
preliminary or permanent injunction or other order enacted, entered
promulgated, enforced or issued by any Governmental Authority or other
legal restraint preventing or prohibiting the transactions contemplated
by this Agreement shall be in effect and no Action shall have been
instituted or be pending before any Governmental Authority to restrain
or prohibit the transactions contemplated by this Agreement.
13.4. PURCHASE PRICE
The $6,000,000 referred to in Section 2.2(a) shall have been delivered
as therein provided and the Centrasia Shares shall have been issued to
the Vendor as provided for in Section 2.2(b).
All of the foregoing conditions are declared to be for the exclusive benefit of
the Vendor and may be waived by the Vendor in writing in whole or in part on or
before the Closing Date. Notwithstanding any such waiver, the completion of the
transactions contemplated by this Agreement by the Vendor shall not prejudice or
affect in any way the rights of the Vendor in respect of the representations and
warranties of the Purchaser in this Agreement.
14. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
14.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties contained in this Agreement,
including any Schedule, in any documents to be executed and delivered
pursuant to this Agreement and in any documents executed and delivered
in connection with the completion of the transactions contemplated in
this Agreement shall survive the Closing of the transactions
contemplated in this Agreement, notwithstanding such Closing and
notwithstanding any investigations made by or on behalf of the Parties
hereto or the waiver of any condition precedent by the Purchaser or the
Vendor, as the case may be, and shall continue in full force and effect
from the Closing Date, for a period of (and claims based upon or
arising out of such representations and warranties may be asserted at
any time before the date which shall be) five years following the
Closing Date, except with respect to:
(a) the representations and warranties of the Vendor with respect
to Tax Liability or other Tax matters, set out under Section
4.31, which shall survive until thirty (30) days after the
expiration of the applicable statutory limitation period for
asserting
- 39 -
claims, liabilities or obligations against the Company and/or
RPI, as the case may be, in respect of the subject matter of
such representations and warranties;
(b) the representations and warranties contained in Sections 4.1
(Authority and Authorization), 4.2 (Validity and
Enforceability), 4.3 (Organization, Qualification and Good
Standing), 4.5 (Authorized and Issued Capital), 4.6 (Title to
the Purchased Shares and the RPI Shares), 4.23 (Title to the
Assets), 4.35 (Employee Plans) and 4.38 (Environmental
Matters) which shall survive the Closing and continue in
effect indefinitely;
(c) a claim for breach of any of the representations and
warranties by the Vendor in or pursuant to this Agreement
involving fraud or fraudulent misrepresentation on the part of
the Vendor may be made against the Vendor at any time
following the Closing Date, subject only to applicable
limitation periods imposed by law.
The Parties hereby acknowledge that if notice regarding any matter
contemplated in this Section 14.1 is given by any Party, acting in good
faith, to the other Parties within the relevant time period specified
in this Section 14.1 and if before such matter has been fully dealt
with pursuant to this Agreement the relevant time period would expire,
the time period in question shall be deemed to be extended (with
respect to such matter only) until such matter has been fully dealt
with pursuant to this Agreement.
14.2. SURVIVAL OF COVENANTS
The covenants and agreements contained in this Agreement, including any
Schedule, in any documents to be executed and delivered pursuant to
this Agreement and any documents executed and delivered in connection
with the completion of the transaction contemplated in this Agreement
shall survive the Closing and, notwithstanding such Closing, shall
continue in full force and effect following the Closing Date for the
benefit of the other Party(s) in accordance with the terms thereof,
indefinitely.
15. INDEMNITIES
15.1. VENDOR'S INDEMNITY
The Vendor agrees to indemnify and save harmless the Purchaser and
Magellan from all claims, demands, proceedings, losses, damages,
liabilities, deficiencies, costs and expenses (including, without
limitation, all reasonable legal and other professional fees and
disbursements, interest, penalties and amounts paid in settlement)
(collectively "LOSSES") suffered or incurred by the Purchaser or
Magellan as a result of or arising directly or indirectly out of or in
connection with any breach by the Vendor of any representation,
warranty, obligation or covenant of the Vendor contained in this
Agreement.
15.2. PURCHASER'S INDEMNITY
The Purchaser agrees to indemnify and save harmless the Vendor from all
Losses (as defined in Section 15.1) suffered or incurred by the Vendor
as a result of or arising directly or indirectly out of or in
connection with any breach by the Purchaser of any
- 40 -
representation, warranty, obligation or covenant of the Purchaser
contained in this Agreement.
15.3. CLAIMS
In the event that the Purchaser and/or Magellan or the Vendor (the
"CLAIMING PARTY") shall become aware of any claim, proceeding or other
matter (a "CLAIM") in respect of which the other Party (the
"INDEMNIFYING PARTY") agreed to indemnify the Claiming Party pursuant
to this Agreement, the Claiming Party shall give written notice thereof
to the Indemnifying Party which notice shall specify, if known, the
amount of the Claim. If the Claim arises as a result of a claim by a
person against the Claiming Party, the Claiming Party shall have the
right, at the expense of the Indemnifying Party, to contest, defend,
settle or pay the amount claimed and to retain counsel and other
experts or advisers selected by the Claiming Party in its discretion in
connection therewith. The Indemnifying Party shall pay to the Claiming
Party all amounts for which the Indemnifying Party is liable pursuant
to this Section within 30 days after the Claiming Party incurs the Loss
in respect of which such Liability arises.
15.4. VENDOR'S CERTIFICATE
Notwithstanding anything contained in this Agreement, each of the
Purchaser and Magellan shall be entitled to fully pursue all rights or
remedies available to it in law or in equity if either or both of the
Vendor's Certificates are untrue, and nothing contained in this
Agreement shall limit or restrict the claims or remedies of the
Purchaser against the persons declaring such certificates, it being
acknowledged by the Parties that the Purchaser and Magellan shall be
relying on the truth of the Vendor's Certificates in completing the
transactions contemplated by this Agreement.
16. TERMINATION
16.1. TERMINATION
(a) If any condition contained in Article 12 is not satisfied at
or before the Closing Date to the satisfaction of the
Purchaser acting reasonably, then the Purchaser may by notice
to the Vendor terminate this Agreement and the obligations of
the Parties hereunder (except as otherwise herein provided)
but without detracting from the rights of the Purchaser
arising from any breach by the Vendor but for which the
condition would have been satisfied.
(b) If any condition contained in Article 13 is not satisfied at
or before the Closing Date to the satisfaction of the Vendor
acting reasonably, then the Vendor may by notice to the
Purchaser terminate this Agreement and the obligations of the
Parties hereunder (except as otherwise herein provided) but
without detracting from the rights of the Vendor arising from
any breach by the Purchaser but for which the condition would
have been satisfied.
(c) This Agreement may be terminated:
(i) by the mutual agreement of the Vendor and the
Purchaser; or
- 41 -
(ii) by the Vendor by notice to the Purchaser in the event
the Purchaser, in breach of this Agreement, fails to
make the payment and issue the Centrasia Shares
required by Sections 2.2(a) and (b) within 60
Business Days after the Closing Date.
(d) If this Agreement is terminated in accordance with the
foregoing provisions of this Section 16.1, no Party shall have
any further liability to perform its obligations hereunder
except as otherwise contemplated hereby, and provided that,
subject to Section 16.2, neither the termination of this
Agreement nor anything contained in this Section 16.1(d) shall
relieve any Party from any liability for any breach by it of
this Agreement, including from any inaccuracy in its
representations and warranties and any non-performance by it
of its covenants made herein.
16.2. REMEDIES
The Parties hereto acknowledge and agree that an award of money damages
would be inadequate for any breach of this Agreement by any Party or
its representatives and any such breach would cause the non-breaching
Party irreparable harm. Accordingly, the Parties hereto agree that, in
the event of any breach or threatened breach of this Agreement by one
of the Parties, the non-breaching Party will also be entitled, without
the requirement of posting a bond or other security, to equitable
relief, including injunctive relief and specific performance. Such
remedies will not be the exclusive remedies for any breach of this
Agreement but will be in addition to all other remedies available at
law or equity to each of the Parties.
16.3. DAMAGE OR EXPROPRIATION
If, during the Interim Period, all or any substantial portion of the
RPI Assets are destroyed or substantially damaged by fire or other
hazard or shall be expropriated or seized by any Governmental Authority
or any other person in accordance with Applicable Law, or if notice of
any such expropriation or seizure shall have been given in accordance
with Applicable Law, the Purchaser shall have the option, exercisable
by notice to the Vendor given prior to the Closing Date:
(a) to terminate this Agreement and not complete the transactions
herein contemplated, in which case the Purchaser shall be
released from all obligations hereunder as of and from the
giving of such notice; or
(b) to complete the transactions herein contemplated with a
reduction of the Purchase Price by the net amount equivalent
to the cost of repair or, if expropriated or seized or if
destroyed or damaged beyond repair, by the net amount
equivalent to the replacement cost of the property or assets
so expropriated, seized, damaged or destroyed, after taking
into account all proceeds of any insurance or compensation for
such destruction, damage, expropriation or seizure received by
the RPI.
If any loss, damage or claim for which insurance is carried by RPI
arises during the Interim Period, the Purchaser, as a condition of
Closing, shall be entitled to be satisfied
- 42 -
that the insurers recognize the claim of RPI for payment in accordance
with the provisions of the relevant insurance policies.
17. POST-CLOSING TRANSACTION
In consideration of $10 now paid by Magellan to the Vendor and other good and
valuable consideration (the receipt and sufficiency of which is acknowledged by
the Vendor) the Vendor acknowledges that after the Closing the Purchaser intends
to sell, assign, transfer and convey the Purchased Shares to Magellan and
Magellan intends to purchase the Purchased Shares from the Purchaser in reliance
on the representations and warranties and covenants of the Vendor in this
Agreement and the Vendor agrees with Magellan that it may do so.
18. MISCELLANEOUS
18.1. PUBLIC NOTICES
The Parties agree that all notices to third parties and all other
publicity concerning the transactions contemplated by this Agreement
shall be jointly planned and co-ordinated and no Party shall act
unilaterally in this regard without the prior approval of the others,
such approval not to be unreasonably withheld.
18.2. NOTICES
Any notice or other writing required or permitted to be given under
this Agreement or for the purposes of this Agreement shall be
sufficiently given if delivered, faxed or e-mailed to the Party to whom
it is given or, if mailed, by prepaid registered mail addressed to such
Party at:
(a) If to the Purchaser or Magellan at:
Centrasia Mining Corp.
000 - 0000 X. Xxxxxxxx Xx.
Xxxxxxxxx, XX X0X 0X0
Attention: Xx. Xxxxxxx Xxxxxxxx
fax number: 000.000.0000
email: xxxxxxxxx@xxxxxxxxxxxxxxx.xxx
and with a copy to:
Xxxxxx Xxxxxxx LLP
Attention: Xxxxx X. Xxxxxx
X.X. Xxx 00000, Xxxxxxx Xxxxxx
Xxxxx 0000, 000 Xxxx Xxxxxxx Xx.
Xxxxxxxxx, XX X0X 0X0 XXXXXX
fax number: 000.000.0000
email: xxxxxxx@xxxxxxxxxxxxx.xxx
- 43 -
(b) If to the Vendor at:
Stargate Solutions Ltd.
P.O. Box 116
Sea Meadow House
Blackburne Highway
Road Town, Tortola
British Virgin Islands
Attention: Xx. Xxxxxxx Xxxxxx Xxxxxxxx
fax number: o[number]
email: o[e-mail address]
with a copy to the Vendor's Solicitors at:
AGA Mangement
00 Xxxxxxxxxx Xxxx
Xxx 0, Xxxxxxx Xxxxx
Xxxxxx, 000000, Xxxxxx
fax number: x0 (000) 000-00-00
email: Xxxx.Xxxxxxxx@xxxxxxxxxxxxx.xxx
or at such other address as the Party to whom such writing is to be
given shall have last notified to the Party giving the same in the
manner provided in this clause. Any notice mailed shall be deemed to
have been given and received on the fifth Business Day next following
the date of its mailing unless at the time of mailing or within five
Business Days thereafter there occurs a postal interruption which could
have the effect of delaying the mail in the ordinary and usual course,
in which case any notice shall only be effectively given if actually
delivered, faxed or e-mailed. Any notice delivered, faxed or e-mailed
to the Party to whom it is addressed shall be deemed to have been given
and received on the Business Day next following the day it was
delivered, faxed or e-mailed.
18.3. SEVERABILITY
If a court of other tribunal of competent jurisdiction determines that
any one or more of the provisions contained in this Agreement is
invalid, illegal or unenforceable in any respect in any jurisdiction,
the validity, legality and enforceability of such provision or
provisions shall not in any way be affected or impaired thereby in any
other jurisdiction and the validity, legality and enforceability of the
remaining provisions contained in this Agreement shall not in any way
be affected or impaired thereby, unless in either case as a result of
such determination this Agreement would fail in its essential purpose.
18.4. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and
supersedes all prior agreements and understandings, oral or written, by
and between any of the Parties
- 44 -
or their respective affiliates with respect to the subject matter of
this Agreement; provided that the Loan Agreement continues in full
force and effect.
18.5. SURVIVAL
All covenants, agreements, representations and warranties contained
herein shall survive the closing of the transactions contemplated
hereunder.
18.6. NOTICES
All notices, requests, demands or directions to one Party hereto by
another Party hereto shall be in writing indicating that such notice,
request, demand or direction is being given pursuant to this Agreement
and delivered to the address of the Party set out above, or to such
other address as may be specified by such Party to the other in a
notice given in the manner herein provided.
18.7. MODIFICATION; WAIVER
No supplement, modification, waiver or termination of this Agreement
shall be binding unless such supplement, modification, waiver or
termination is duly executed in writing by each of the Parties hereto.
No waiver of any of the provisions of this Agreement shall be deemed to
constitute a waiver of any other provisions (whether or not similar),
nor shall such waiver constitute a continuing waiver unless otherwise
expressly agreed to in writing by the Party to be bound thereby.
18.8. TIME
Time shall be of the essence of this Agreement.
18.9. DISPUTE RESOLUTION AND GOVERNING LAW
Any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by the London
Court of International Arbitration under the LCIA Rules, which Rules
are deemed to be incorporated by reference into this clause. The number
of arbitrators shall be one. The seat, or legal place, of arbitration
shall be London, England. The language to be used in the arbitral
proceedings shall be English. The governing law of this Agreement shall
be the substantive law of England.
18.10. FURTHER ASSURANCES
The Parties shall with reasonable diligence, do all such things and
provide all such reasonable assurances as may be required to consummate
the transactions contemplated by this Agreement, and each Party shall
provide such further documents or instruments required by the other
Party as may be reasonably necessary or desirable to give effect to the
purpose of this Agreement and carry out its provisions whether before
or after the Closing Date.
- 45 -
18.11. ASSIGNMENT
No Party may assign this Agreement without the consent of the other
Parties, except that the Purchaser may assign this Agreement to
Magellan or any other Affiliate.
18.12. ENUREMENT
This Agreement shall enure to the benefit of and be binding upon the
Parties hereto and their respective successors and permitted assigns.
18.13. COUNTERPARTS
This Agreement may be executed in as many counterparts as may be
necessary or by facsimile and each such counterpart agreement or
facsimile so executed shall be deemed to be an original and such
counterparts and facsimile copies together shall constitute one and the
same instrument.
IN WITNESS WHEREOF the Parties have duly executed this Agreement as of the day
and year first above written.
STARGATE SOLUTIONS LTD. MAGELLAN HOLDINGS ( BVI ) CORP.
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
______________________________ ______________________________
Signature of authorized person Signature of authorized person
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx
Position: President Position: Director
CENTRASIA MINING CORP.
/s/ Xxxxxxx Xxxxxxxx
______________________________
Signature of authorized person
Name: Xxxxxxx Xxxxxxxx
Position: President
SCHEDULE 4.4(B)
CORPORATE PREDECESSORS OF RPI, ETC.
SCHEDULE 4.9
CONSENTS AND APPROVALS
SCHEDULE 4.11(B)
SHARES OWNED
SCHEDULE 4.14
AGREEMENTS (OTHER THAN MATERIAL CONTRACTS)
SCHEDULE 4.15
MATERIAL CONTRACTS
SCHEDULE 4.18
EQUIPMENT LEASES
SCHEDULE 4.19
LICENCES
SCHEDULE 4.22
PERMITS (INCLUDING ENVIRONMENTAL PERMITS)
SCHEDULE 4.26
FINANCIAL STATEMENTS
SCHEDULE 4.30
BANK ACCOUNTS AND POWERS OF ATTORNEY
SCHEDULE 4.35
EMPLOYEES AND EMPLOYEE PLANS
SCHEDULE 4.38(L)
LEASED PROPERTY
SCHEDULE 7.4
CORPORATE INFORMATION FOR CENTRASIA
Centrasia Mining Corp. ("Centrasia") was incorporated under the Company Act
(British Columbia) on December 10, 1999 under the name "Buck Ventures Ltd." On
May 10, 2000, Centrasia changed its name to "QDM Ventures Ltd.". On September
25, 2001 it changed its name to "California Exploration Ltd.". On June 3, 2004,
it changed its name to "Baradero Resources Limited. On September 12, 2005, it
changed its name to "Centrasia Mining Corp.".
A list of the current subsidiaries of Centrasia is as follows, all of which are
100% owned:
----------------------------
Centrasia Mining Corp.
(British Columbia)
----------------------------
|
|
|
--------------------------------------
| |
|100% |100%
| |
------------------------------ ------------------------------
0724000 B.C. Ltd. Magellan Holdings (BVI) Corp.
(British Columbia) (British Virgin Islands)
------------------------------ ------------------------------
|
|100%
|
------------------------------
Magellan Gold (BVI) Inc.
(British Virgin Islands)
------------------------------
|
|100%
|
---------------------------------
| |
|100% |100%
| |
-------------------------- --------------------------
Bulakashu Mining Centrasia Mining
Company Ltd. Kazakhstan Ltd.
(Kyrgyz Republic) (Republic of Kazakhstan)
-------------------------- --------------------------
In addition, Centrasia had a subsidiary in the United States, which was
abandoned in 2005.
SHARE PURCHASE AGREEMENT
AMENDING AGREEMENT
THIS AGREEMENT is made this 30th day of May, 2007
BETWEEN:
STARGATE SOLUTIONS LTD. a corporation incorporated under the laws of
the British Virgin Islands having is registered office at X.X. Xxx 000,
Xxx Xxxxxx Xxxxx, Xxxxxxxxxx Highway, Road Town, Tortola, British
Virgin Islands
(the "VENDOR")
AND:
CENTRASIA MINING CORP., a corporation incorporated under the laws of
British Columbia and having an office at 300 - 1055 X. Xxxxxxxx Street
Vancouver, British Columbia C V6E 2E9
(the "PURCHASER")
AND:
MAGELLAN HOLDINGS ( BVI ) CORP., a corporation incorporated under the
laws of the British Virgin Islands and having an office at c/o HWR
Services Limited, Craigmuir Xxxxxxxx, P.O. Box 71, Road Town, Tortola,
British Virgin Islands
("MAGELLAN")
WHEREAS:
A. The parties entered into a Share Purchase Agreement dated May 11, 2007
(the "SPA");
B. The parties wish to amend the SPA as hereinafter provided.
THIS AGREEMENT WITNESSES THAT in consideration of the representations,
warranties, covenants and agreements set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
1. INTERPRETATION
1.1. Defined Terms
All capitalized terms used but not defined in this Agreement but
defined in the SPA have the meanings assigned to them respectively in
the SPA.
1.2. Importation of Terms
The provisions in Sections 1.2 to 1.7, 1.10 and 1.11 of the SPA are
incorporated herein by reference with the necessary changes.
2. ADDITIONAL LOAN
2.1. $500,000
The Purchaser will use reasonable commercial efforts to arrange for an
advance of $500,000 (the "Additional Loan") as a loan to RPI by
Prussian Capital Corporation, on terms and conditions to be settled
between Prussian Capital Corporation and RPI, subject to the approval
of the Purchaser.
2.2. Use of Proceeds
The Vendor will cause RPI to use the proceeds of the Additional Loan
only to carry out work on the Licence Area under the supervision of an
individual designated by the Purchaser and to pay outstanding
indebtedness of the Company, the work to be carried out and the
indebtedness to be repaid to be as the Purchaser may approve in
writing.
3. CHANGE IN PURCHASE PRICE TERMS
3.1. $200,000 Letter of Credit
In lieu of delivering a letter of credit for $200,000 to the Escrow
Bank in escrow pursuant to Section 2.3 of the SPA, the Purchaser may
elect to deliver $200,000 to the Escrow Bank in escrow, to be held and
dealt with on the same terms and conditions as the letter of credit,
with the necessary changes.
3.2. Escrow of Centrasia Shares
The 3,125,000 Centrasia Shares which, pursuant to Section 2.2(b) of the
SPA, are to be issued in the name of the Vendor and delivered to the
Escrow Bank in escrow shall instead be issued as to 97% thereof to the
account opened by Canaccord Capital for the benefit of the Vendor and,
pursuant to Section 10.1 of the SPA, as to 3% thereof to the account
opened by Canaccord Capital for the benefit of the Agent, and the
certificates for all such shares shall be delivered in escrow to:
Xxxxxx Xxxxxxx LLP
Attention: Xxxxx X. Xxxxxx
Suite 1925, 000 Xxxx Xxxxxxx Xx.
Xxxxxxxxx, XX X0X 0X0 XXXXXX
to be held in escrow and dealt with in the same manner by Xxxxxx
Xxxxxxx LLP as they would have been if delivered in escrow to the
Escrow Bank, and on the terms of an escrow agreement which shall be the
same as Escrow Agreement 2 with the necessary changes.
3.3. Prepayment of $1,000,000
If the Closing Date has not occurred on or before June 25, 2007 the
Purchaser may, at its option, prepay $1,000,000 of the $6,000,000
referred to in Section 2.2(a) of the SPA on or before June 25, 2007 to
the Vendor, in which event:
(a) the $6,000,000 to be paid pursuant to Section 2.2(a) of the
SPA on the Closing Date by the Purchaser to the Escrow Bank,
in escrow under the terms of Escrow Agreement 2, shall be
reduced to $5,000,000;
(b) Section 2.3 of the SPA shall be and be deemed amended by
replacing June 25, 2007 wherever it appears with July 5, 2007
and replacing $6,000,000 wherever it appears with $5,000,000;
(c) Section 2.4(a) of the SPA shall be and be deemed amended by
replacing June 25, 2007 wherever it appears with July 5, 2007
and replacing $6,000,000 wherever it appears with $5,000,000;
(d) Section 2.4(b) of the SPA shall be and be deemed amended by
replacing June 25, 2007 wherever it appears with July 5, 2007
and replacing $6,000,000 wherever it appears with $5,000,000;
(e) Section 2.4(c) of the SPA shall be and be deemed amended by
replacing June 25, 2007 wherever it appears with July 5, 2007,
replacing $6,000,000 wherever it appears with $5,000,000 and
replacing $6,600,000 with $5,600,000;
(f) Section 2.4(d) of the SPA shall be and be deemed amended by
replacing June 25, 2007 wherever it appears with July 5, 2007,
replacing $6,000,000 wherever it appears with $5,000,000 and
replacing $6,200,000 with $5,200,000;
(g) the reference in Section 10.1(a) of the SPA to the payment
referred to in Section 2.2(a) shall be deemed to be a
reference to the payment of $5,000,000; and
(h) the reference in Section 13.4 of the SPA to the $6,000,000
referred to in Section 2.2(a) shall be deemed to be a
reference to $5,000,000.
3.4. Payment by Wire Transfer
The Purchaser shall be deemed to have prepaid $1,000,000 of the
Purchase Price pursuant to Section 3.1 when appropriate wire transfer
instructions have been given by it to its bank.
3.5. Repayment on Termination
If the Purchaser prepays $1,000,000 of the Purchase Price pursuant to
Section 3.2 hereof and the SPA is subsequently terminated by the
Purchaser pursuant to Section 16.1 thereof, the Vendor will repay
$1,000,000 to the Purchaser on demand with interest until paid at an
annual rate of 15%.
4. MISCELLANEOUS
4.1. Status of SPA
The SPA as amended and supplemented hereby continues in full force and
effect.
4.2. Time
Time shall continue to be of the essence of the SPA as amended and
supplemented by this Agreement.
4.3. Enurement
This Agreement shall enure to the benefit of and be binding upon the
Parties hereto and their respective successors and permitted assigns.
4.4. Counterparts
This Agreement may be executed in as many counterparts as may be
necessary or by facsimile and each such counterpart agreement or
facsimile so executed shall be deemed to be an original and such
counterparts and facsimile copies together shall constitute one and the
same instrument.
IN WITNESS WHEREOF the Parties have duly executed this Agreement as of the day
and year first above written.
STARGATE SOLUTIONS LTD. MAGELLAN HOLDINGS ( BVI ) CORP.
/s/ Xxxxxxx Xxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
______________________________ ______________________________
Signature of authorized person Signature of authorized person
Name: Xxxxxxx Xxxxxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx
Position: Director Position: Director
CENTRASIA MINING CORP.
/s/ Xxxxxxx Xxxxxxxx
______________________________
Signature of authorized person
Name: Xxxxxxx Xxxxxxxx
Position: President and CEO
SHARE PURCHASE AGREEMENT
AMENDING AGREEMENT (NO. 2)
THIS AGREEMENT is made the 22nd day of June, 2007
BETWEEN:
STARGATE SOLUTIONS LTD. a corporation incorporated under the laws of
the British Virgin Islands having is registered office at X.X. Xxx 000,
Xxx Xxxxxx Xxxxx, Xxxxxxxxxx Highway, Road Town, Tortola, British
Virgin Islands
(the "VENDOR");
AND:
CENTRASIA MINING CORP., a corporation incorporated under the laws of
British Columbia and having an office at 300 - 1055 X. Xxxxxxxx Street
Vancouver, British Columbia C V6E 2E9
(the "PURCHASER");
AND:
MAGELLAN HOLDINGS ( BVI ) CORP., a corporation incorporated under the
laws of the British Virgin Islands and having an office at c/o HWR
Services Limited, Craigmuir Xxxxxxxx, P.O. Box 71, Road Town, Tortola,
British Virgin Islands
("MAGELLAN").
WHEREAS:
A. The parties entered into a Share Purchase Agreement dated May 11, 2007
(the "SPA") and into a Share Purchase Agreement Amending Agreement
dated June 8, 2007 ("AMENDING AGREEMENT NO. 1");
B. The parties wish to amend and supplement the SPA and Amending Agreement
No. 1 as hereinafter provided.
THIS AGREEMENT WITNESSES THAT in consideration of the representations,
warranties, covenants and agreements set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
1. INTERPRETATION
1.1. Defined Terms
All capitalized terms used but not defined in this Agreement but
defined in the SPA have the meanings assigned to them respectively in
the SPA.
- 2 -
1.2. Importation of Terms
The provisions in Sections 1.2 to 1.7, 1.10 and 1.11 of the SPA are
incorporated herein by reference with the necessary changes.
2. CHANGE IN PURCHASE PRICE TERMS
2.1. Prepayment of $1,500,000
If the Closing Date has not occurred on or before June 25, 2007 the
Purchaser may, at its option, prepay $1,500,000 of the $6,000,000
referred to in Section 2.2(a) of the SPA on or before June 25, 2007 to
the Vendor, in which event:
(a) the $6,000,000 to be paid pursuant to Section 2.2(a) of the
SPA on the Closing Date by the Purchaser to the Escrow Bank,
in escrow under the terms of Escrow Agreement 2, shall be
reduced to $4,500,000;
(b) Section 2.3 of the SPA shall be and be deemed amended by
replacing June 25, 2007 wherever it appears with July 20, 2007
and replacing $6,000,000 wherever it appears with $4,500,000;
(c) Section 2.4(a) of the SPA shall be and be deemed amended by
replacing June 25, 2007 wherever it appears with July 20, 2007
and replacing $6,000,000 wherever it appears with $4,500,000;
(d) Section 2.4(b) of the SPA shall be and be deemed amended by
replacing June 25, 2007 wherever it appears with July 20, 2007
and replacing $6,000,000 wherever it appears with $4,500,000;
(e) Section 2.4(c) of the SPA shall be and be deemed amended by
replacing June 25, 2007 wherever it appears with July 20,
2007, replacing $6,000,000 wherever it appears with $4,500,000
and replacing $6,600,000 with $5,100,000;
(f) Section 2.4(d) of the SPA shall be and be deemed amended by
replacing June 25, 2007 wherever it appears with July 20,
2007, replacing $6,000,000 wherever it appears with $4,500,000
and replacing $6,200,000 with $4,700,000;
(g) the reference in Section 10.1(a) of the SPA to the payment
referred to in Section 2.2(a) shall be deemed to be a
reference to the payment of $4,500,000; and
(h) the reference in Section 13.4 of the SPA to the $6,000,000
referred to in Section 2.2(a) shall be deemed to be a
reference to $4,500,000.
2.2. Payment by Wire Transfer
The Purchaser shall be deemed to have prepaid $1,500,000 of the
Purchase Price pursuant to Section 2.1 hereof when appropriate wire
transfer instructions have been given by it to its bank.
- 3 -
2.3. Repayment on Termination
If the Purchaser prepays $1,500,000 of the Purchase Price pursuant to
Section 2.1 hereof and the SPA is subsequently terminated by the
Purchaser pursuant to Section 16.1 thereof, the Vendor will repay
$1,500,000 to the Purchaser on demand with interest until paid at an
annual rate of 15%.
2.4. Certain Provisions of Amending Agreement No. 1 Superseded
Subject to Section 3.1, the provisions in Sections 2.1, 2.2 and 2.3 of
this Agreement supersede and replace Sections 3.3, 3.4 and 3.5 of
Amending Agreement No. 1, and said Sections 3.3, 3.4 and 3.5 of
Amending Agreement No. 1 shall be of no further force or effect.
3. CONDITION PRECEDENT
3.1. This Agreement is subject to approval by the board of directors of the
Purchaser, with notice of such approval to be given by the Purchaser to
the Vendor in the manner provided in Section 18.2 of the SPA before
5:00 p.m. Vancouver time on June 25, 2007. If such condition is not
satisfied or waived, this Agreement shall terminate and be of no force
or effect.
4. MISCELLANEOUS
4.1. Status of SPA
The SPA and Amending Agreement No. 1 as amended and supplemented hereby
continue in full force and effect.
4.2. Time
Time shall continue to be of the essence of the SPA as amended and
supplemented by this Agreement.
4.3. Enurement
This Agreement shall enure to the benefit of and be binding upon the
Parties hereto and their respective successors and permitted assigns.
4.4. Counterparts
This Agreement may be executed in as many counterparts as may be
necessary or by facsimile and each such counterpart agreement or
facsimile so executed shall be deemed to be an original and such
counterparts and facsimile copies together shall constitute one and the
same instrument.
IN WITNESS WHEREOF the Parties have duly executed this Agreement as of the day
and year first above written.
- 4 -
STARGATE SOLUTIONS LTD. MAGELLAN HOLDINGS ( BVI ) CORP.
/s/ Xxxxxxx Xxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
______________________________ ______________________________
Signature of authorized person Signature of authorized person
Name: Xxxxxxx Xxxxxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx
Position: Director Position: Director
CENTRASIA MINING CORP.
/s/ Xxxxxxx Xxxxxxxx
______________________________
Signature of authorized person
Name: Xxxxxxx Xxxxxxxx
Position: President and CEO
CENTRASIA MINING CORP.
Xxxxx 000, 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX X0X 0X0
Telephone: (000) 000-0000 / Fax: (000) 000-0000
Website xxx.xxxxxxxxxxxxxxx.xxx
------------------------------------------------------------
July 11, 0000
Xxxxxxxx Solutions Ltd. and
Sergei Sergeevich Makarov, Xxxxxxx Xxxxxxxxx Vepritskiy
and Xxxxxxxxx Xxxxxxxxxx
c/o AGA Mangement Ltd.
00 Xxxxxxxxxx Xxxx
Xxx 0, Xxxxxxx Floor
Xxxxxx, 000000, Xxxxxx
Dear Sirs:
SHARE PURCHASE AGREEMENT DATED MAY 11, 2007 (THE "SPA") AS AMENDED BY AMENDING
AGREEMENT DATED JUNE 8, 2007 ("AMENDING AGREEMENT NO. 1") AND AMENDING AGREEMENT
(NO. 2) DATED JUNE 22, 2007 ("AMENDING AGREEMENT NO. 2")
We write to confirm our agreement made for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, that:
1. The governing law of the SPA, Amending Agreement Xx. 0, Xxxxxxxx
Xxxxxxxxx Xx. 0 and the Shareholder Guarantee (as defined in the SPA)
and the governing law of the agreement set forth in this letter shall
be the law of British Virgin Islands and the SPA, Amending Agreement
No. 1, Amending Agreement No. 2 and the Shareholder Guarantee are
amended accordingly.
2. The SPA, Amending Agreement No. 1, Amending Agreement No. 2 and the
Shareholder Guarantee as amended hereby continue in full force and
effect.
3. The agreement set forth in this letter shall enure to the benefit of
and be binding upon the Parties hereto and their respective successors
and permitted assigns.
Please acknowledge your agreement by signing a copy of this letter and returning
it.
Yours truly,
CENTRASIA MINING CORP. MAGELLAN HOLDINGS ( BVI ) CORP.
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
______________________________ ______________________________
Signature of authorized person Signature of authorized person
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx
Position: President and CEO Position: Director
-2-
Acknowledged and agreed as of the date first above written.
STARGATE SOLUTIONS LTD.
/s/ Xxxxxxx Xxxxxx Xxxxxxxx
______________________________
Signature of authorized person
Name: Xxxxxxx Xxxxxx Xxxxxxxx
Position: Director
/s/ SERGEI SERGEEVICH MAKAROV
_______________________________
SERGEI SERGEEVICH MAKAROV
/s/ XXXXXXX XXXXXXXXX VEPRITSKIY
_______________________________
XXXXXXX XXXXXXXXX VEPRITSKIY
/s/ XXXXXXXXX XXXXXXXXXX
_______________________________
XXXXXXXXX XXXXXXXXXX
CENTRASIA MINING CORP.
Xxxxx 000, 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX X0X 0X0
Telephone: (000) 000-0000 / Fax: (000) 000-0000
Website xxx.xxxxxxxxxxxxxxx.xxx
------------------------------------------------------------
July 13, 0000
Xxxxxxxx Solutions Ltd. and
Sergei Sergeevich Makarov, Xxxxxxx Xxxxxxxxx Vepritskiy
and Xxxxxxxxx Xxxxxxxxxx
c/o AGA Mangement Ltd.
00 Xxxxxxxxxx Xxxx
Xxx 0, Xxxxxxx Floor
Xxxxxx, 000000, Xxxxxx
Dear Sirs:
SHARE PURCHASE AGREEMENT DATED MAY 11, 2007 (THE "SPA") AS AMENDED BY AMENDING
AGREEMENT DATED JUNE 8, 2007 ("AMENDING AGREEMENT NO. 1"), AMENDING AGREEMENT
(NO. 2) DATED JUNE 22, 2007 ("AMENDING AGREEMENT NO. 2") AND AMENDING AGREEMENT
(NO. 3) DATED JULY 11, 2007
We write to confirm our agreement made for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, that:
1. Sections 17 of the SPA is hereby superseded and replaced with the
following:
"In consideration of $10 now paid by Magellan to the Vendor and other
good and valuable consideration (the receipt and sufficiency of which
is acknowledged by the Vendor) the Vendor acknowledges that after the
Closing the Purchaser intends to sell, assign, transfer and convey 999
of the Purchased Shares to Magellan and 1 of the Purchased Shares to
Magellan Gold (BVI) Inc. and Magellan and Magellan Gold (BVI) Inc.
intend to purchase the Purchased Shares from the Purchaser in reliance
on the representations and warranties and covenants of the Vendor in
this Agreement and the Vendor agrees with Magellan and Magellan Gold
(BVI) Inc. that it may do so."
2. The governing law of the agreement set forth in this letter shall be
the law of British Virgin Islands.
3. The SPA, Amending Agreement No. 1, Amending Agreement No. 2 and
Amending Agreement No. 3 hereby continue in full force and effect.
4. The agreement set forth in this letter shall enure to the benefit of
and be binding upon the Parties hereto and their respective successors
and permitted assigns.
-2-
Please acknowledge your agreement by signing a copy of this letter and returning
it.
Yours truly,
CENTRASIA MINING CORP. MAGELLAN HOLDINGS ( BVI ) CORP.
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
______________________________ ______________________________
Signature of authorized person Signature of authorized person
Name: Xxxxxxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx
Position: President and CEO Position: Director
Acknowledged and agreed as of the date first above written.
STARGATE SOLUTIONS LTD.
/s/ Xxxxxxx Xxxxxx Xxxxxxxx
______________________________
Signature of authorized person
Name: Xxxxxxx Xxxxxx Xxxxxxxx
Position: Director
As a consequence of the changes noted above to Section 17 of the SPA, the
shareholders of Stargate Solutions Ltd. hereby acknowledge and agree that the
Shareholder's Guarantee dated July 9, 2007, as amended, shall be in favour of
and to the benefit of Magellan Gold (BVI) Inc. in all respects, in addition to
being in favour of and to the benefit of Centrasia Mining Corp. and Magellan
Holdings (BVI) Corp.
/s/ SERGEI SERGEEVICH MAKAROV
_______________________________
SERGEI SERGEEVICH MAKAROV
/s/ XXXXXXX XXXXXXXXX VEPRITSKIY
_______________________________
XXXXXXX XXXXXXXXX VEPRITSKIY
/s/ XXXXXXXXX XXXXXXXXXX
_______________________________
XXXXXXXXX XXXXXXXXXX
