EXHIBIT 10.1
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STOCK PURCHASE AGREEMENT
AMONG
XXXXXXX - XXXX GOLD COMPANY, INC.
("SELLER"),
ROGUE RIVER RESOURCES CORP.
("PURCHASER"),
and
XXXXXX XXXXXXX, S.A. DE C.V.
("Company")
made as of
January 25, 2007
STOCK PURCHASE AGREEMENT effective as of the 25th day of January, 2007 (this
"Agreement") among:
ROGUE RIVER RESOURCES CORP., a corporation organized under the laws of the
Province of British Columbia, Canada, with domicile at Suite 1780 - 000 Xxxxxxx
Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx Xxxxxx X0X 0X0 (hereinafter referred to as
the "PURCHASER");
XXXXXXX-XXXX GOLD COMPANY INC. a corporation organized under the laws of the
State of Nevada, U.S.A., with domicile at 0000 Xxxx Xxxxx, Xxxxxxxx, XX, 00000
(hereinafter referred to as the "SELLER");
AND
XXXXXX XXXXXXX, S.A. DE C.V., a corporation organized under the laws of Mexico,
with domicile at Xx xx xx Xxxxxx 000, Xxxx. 000, Xxxxx Xxxxxx, Xxxxx xx
Xxxxxxxxxxx, Xxxxxx, D.F.11000 (hereinafter referred to as the "Company").
R E C I T A L S
I. The Company is a Mexican corporation duly incorporated under the laws of
Mexico, as evidenced on public deed No. 130,576 dated August 18, 1989 granted
before Notary Public No. 138 Xxxx Xxxxxxx Xxxxxxxxx Xxxxxxx and duly filed at
Mexico City Public Registry of Commerce under mercantile folio No. 122,970 and
registered at the Mining Public Registry under Book 225, pages 159 and 160,
volume III of the Commercial Book "Partners and Shareholders of Mining
Companies" with corporate capital at the date of execution of this Agreement of
Mex $ 611,400.00 pesos, represented by 611,400 registered shares of common
stock, fully subscribed and paid for with a par value of Mex $ 1.00 pesos per
share and all having equal rights.
II. The SELLER is the lawful owner of the shares of the Company described
in Section 2.1 of this Agreement.
III. The Company is principally engaged in Mexico to carry on commercial
and business activities of a general nature, and in particular, to engage in the
mining and metallurgical industry, including but not limited to the acquisition
of mining concessions for exploration and exploitation or contractual rights
thereto, the industrialization of mining products or chemicals derived
therefrom, and the import, export and commercialization of all classes of
minerals, metals and chemical products.
IV. The SELLER has agreed to sell to the PURCHASER and the PURCHASER has
agreed to acquire from the SELLER all of the shares of the Company owned by the
SELLER at the price and on the terms and conditions set forth herein below.
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V. The SELLER acknowledges and recognizes that on May 24, 2005 it entered
into, with Nexvu Capital Corp ("NEXVU") and the Company, a letter agreement
which contemplated, among other things, the entering into of a joint venture
between NEXVU and the Company with respect to certain mining concessions owned
by the Company (the "First Letter Agreement"), which letter agreement was
superceded on December 4, 2005 by another letter agreement between the SELLER
and NEXVU providing for, among other things, the sale by the SELLER to NEXVU of
all of the shares of the Company owned by SELLER (the "Second Letter
Agreement"). NEXVU reserved the right to assign at any time its rights under
such letter agreements to a third party.
VI. The PURCHASER acknowledges and recognizes that on May 8, 2006 it
executed an assignment of rights agreement (the "Assignment of Rights
Agreement") with NEXVU (attached hereto as "Exhibit VI") to legally formalize
the assignment of all of NEXVU'S rights under the First Letter Agreement and the
Second Letter Agreement to PURCHASER for all purposes whatsoever. Furthermore
SELLER hereby consents to such assignment.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties agree as follows:
ARTICLE I
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DEFINITIONS
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1.1. In this Agreement, the following expressions shall have the following
meanings:
a) "Closing" has the meaning set forth in Section 2.2.
b) "Closing Date" has the meaning set forth in Section 2.2.
c) "Commercial Production" means and shall be deemed to have been achieved
when the mill erected to treat the porphyry portion of the Property (the "Mill")
processing ore from the porphyry portion of the Property for other than testing
purposes has operated for a period of 30 consecutive production days at not less
than 75% of design capacity or, in the event a Mill is not erected on the
Property when ores from the porphyry portion of the Property have been produced
for a period of 30 consecutive production days at not less than 75% of the
mining rate specified in a feasibility study or other communication recommending
placing the porphyry portion of the Property into production.
f) "First Transaction" has the meaning set forth in Subsection 2.2 (i).
g) "First Transaction Date" means January 25th, 2007.
h) "Net Smelter Returns" has the meaning set forth in Exhibit 1.1 (h)
attached hereto.
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i) "Property" means The La Balsa 1-11 mining concessions in the
municipality of Xxxxxx Xxxxxxxx, State of Michoacan, all of them within the
jurisdiction of the Mining Agency of Morelia, State of Michoacan, as described
on letter March 17, 2006 which is attached hereto as Exhibit 1.1.(i).
j) "Second Transaction" has the meaning set forth in Subsection 2.2 (ii).
k) "Second Transaction Date" means January 25th, 2007.
l) "Shares" means all the shares owned by the SELLER in the corporate
capital of the Company as listed in Section 2.1 below.
m) "Third Transaction" has the meaning set forth in Subsection 2.2 (iii).
n) "Third Transaction Date" means April 30, 2007.
ARTICLE II
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PURCHASE OF SHARES
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2.1. Transfer of Shares and Payment of the Purchase Price. Based on the
representations, warranties and agreements herein contained and subject to the
terms and conditions herein set forth, the SELLER will sell to the PURCHASER and
the PURCHASER will purchase from the SELLER Shares of the Company owned by
SELLER in three separate transactions, in accordance with the terms and
conditions set forth in this Article II. The Shares owned by the SELLER
represent 65% of the total capital stock of the Company, and upon the closing of
the third and final transaction, all shares of the Company owned by SELLER will
have been purchased by PURCHASER.
As of the date of this Agreement, the SELLER is the owner of the following
Shares of the Company:
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SHAREHOLDER TITLE NO. MINIMUM VARIABLE CAPITAL
CAPITAL TOTAL
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XXXXXXX - XXXX GOLD / 650 396,760 397,410
COMPANY, INC
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2.2 Purchase Transactions and Net Smelter Returns Royalty
PURCHASER and SELLER agree to complete the following sales transactions:
(i) PURCHASER'S payment of US$695,000, at the Closing of the First
Transaction on the First Transaction Date to acquire 123,197 shares of
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the Company from SELLER, which represents 31% of the Shares (the
"First Transaction") payable at the Closing of the First Transaction
on the First Transaction Date;
(ii) PURCHASER'S payment of US$745,000, (subject to extension or
acceleration in accordance with Section 2.3) to acquire an additional
123,197 shares, which represents 31% of the Shares, from SELLER (the
"Second Transaction") payable at the Closing of the Second Transaction
on the Second Transaction Date (subject to extension or acceleration
in accordance with Section 2.3); and
(iii) PURCHASER'S payment of US$745,000 to acquire the remaining 151,016
shares, which represents 38% of the Shares, from SELLER (the "Third
Transaction") payable at the Closing of the Third Transaction on the
Third Transaction Date (subject to extension or accelerated in
accordance with Section 2.3).
The closing of the purchase and sale of each of the First Transaction, Second
Transaction and Third Transaction (each, a "Closing"), and the transactions
contemplated by this Agreement will take place at the office of Xxxxxxxx Xxxx,
Colina de los Aconitos # 00-000 Xxxxx. Xxxxxxxxxx, Xxxxxxxxx, Xxxxxx, X.X.
00000, Xxxxxx at 9:00 a.m. on the First Transaction Date, the Second Transaction
Date and the Third Transaction Date, respectively (each, a "Closing Date" and
collectively, the "Closing Dates"). The PURCHASER and SELLER will provide all
necessary documents and instructions to counsel for the Company rather than
personally appear at the above place on the Closing Dates.
Prior to the first Closing the SELLER and the PURCHASER shall deliver to counsel
for and secretary of the Company, Xx. Xxxxxxxx Xxxx, this Agreement duly
executed by the authorized signatories of each of the parties to it and a letter
(the "Letter") in the form attached hereto as Exhibit 2.2(a) originally signed
by the authorized signatories of each of the SELLER and the PURCHASER
authorizing and instructing Xx. Xxxx to transfer and reissue the Shares
corresponding to the First Transaction, the Second Transaction and the Third
Transaction, as the case may be, to the PURCHASER in accordance with the terms
of the Letter.
Corresponding to each Transaction, the SELLER and the PURCHASER shall execute a
purchase-sale letter, in accordance with the terms outlined in Exhibit 2.2(b),
to be provided to the Tax Authority in conjunction with payment of the
corresponding tax, as well as for presentation to the Foreign Investment
National Registry.
The Company will, upon closing of the Third Transaction, provide the SELLER with
a one percent (1%) net smelter returns royalty ("NSR Royalty" or "Royalty") in
respect of the porphyry portion of the Property, in the form and payable in
accordance with the terms outlined in Exhibit 1.1(h). The PURCHASER may, at any
time, elect to purchase 50% of the NSR Royalty for US$1,000,000. In addition, if
the porphyry portion of the Property has not entered into Commercial Production
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by December 4, 2012, the PURCHASER will, at any time at the sole option of the
SELLER, purchase 50% of the NSR Royalty for US$1,000,000. The SELLER may assign
the NSR Royalty to any person or entity.
2.3 Transaction Timing
The PURCHASER may, in its sole discretion, extend the date by which any of the
Second Transaction or Third Transaction (each a "Transaction" and collectively,
the "Transactions") is to be made, and the corresponding Closing, by up to 60
days, provided that the PURCHASER pays to the SELLER the additional sum of US
$25,000 for each 30 days (or any portion thereof) of such extension. In
addition, the PURCHASER will have the right, in its sole discretion, to
accelerate the date by which any of the Transactions is to take place, and the
corresponding Closing, to such earlier date as the PURCHASER, in its sole
discretion, may determine. Notwithstanding the above, the PURCHASER will,
subject to the conditions set forth in this Agreement, accelerate the
Transactions, and the corresponding Closings, to the soonest date that is
reasonably practicable if it completes a financing of more then US$15,000,000.
ARTICLE III
-----------
Representations and Warranties of the SELLER and the PURCHASER.
---------------------------------------------------------------
3.1 Representations and Warranties of the SELLER. The SELLER represents and
warrants to the PURCHASER as follows:
(a) The Shares constitute all of the issued and outstanding shares of the
Company owned by the SELLER and which represent 65% of the total issued and
outstanding capital of the Company.
(b) Except as provided in this Agreement, the SELLER does not own any and
is not a party to any outstanding or authorized options, warrants, rights,
subscriptions, pending or authorized claims of any character, agreements,
obligations, convertible or exchangeable securities, or other commitments,
contingent or otherwise, relating to the Shares or any other shares of capital
stock of the Company, pursuant to which the Company is or may become obligated
to issue any shares of its capital stock or any securities convertible into,
exchangeable for, or evidencing the right to subscribe for, any shares of the
capital stock of the Company.
(c) The SELLER is the lawful owner of the Shares, free of any liens,
limitations or encumbrances or claims whatsoever and at the time of the Closing
of the First Transaction, Second Transaction and Third Transaction the SELLER
will be the lawful owner of the Shares which are to be sold in each of the First
Transaction, Second Transaction and Third Transaction.
(d) The SELLER has full power and authority (including full corporate or
other entity power and authority) to execute and deliver this Agreement and to
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perform its obligations hereunder, including the sale, assignment, transfer and
delivery of the ownership of the Shares to the PURCHASER in accordance with this
Agreement. This Agreement constitutes the valid and legally binding obligation
of SELLER, enforceable in accordance with its terms and conditions. SELLER need
not give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement. The execution,
delivery and performance of this Agreement and all other agreements contemplated
hereby have been duly authorized by SELLER.
(e) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will (A) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which SELLER is subject or any provision of its charter, bylaws, or
other governing documents or (B) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which SELLER is a party or by which he, she, or it is bound or to which any
of its assets is subject.
(f) To the actual knowledge of the SELLER:
(i) the Company is a variable capital corporation duly organized,
validly existing and is duly registered at the Public Registry of
Commerce according to the laws of Mexico and at the Mining Public
Registry;
(ii) the Company has full power and lawful authority to carry on its
business as now conducted and to own and operate its assets,
properties and business, and is duly registered with the Mexican
Government;
(iii) the Company has and as of the Closing date shall have, properly
and timely filed and accurately completed, all tax returns
required to be filed with the corresponding authorities of any
applicable jurisdiction, and has paid or properly accrued in its
financial statements all taxes, (and any other charges, duties,
penalties, interests or fines related thereto) which are or have
become due and payable pursuant to such returns, or pursuant to
any assessments or otherwise and no extension of time for filing
any such return or making any such payment is currently in effect
nor shall be at the date of Closing;
(iv) the Company is the owner of the Property and no other person or
entity has any right, title or interest in the Property;
(v) there are, no existing or pending, threatened, suits, actions,
claims, investigations, inquiries, administrative or other
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proceedings, in law or at equity, or arbitrations by any
governmental agency, association, corporation, individual,
partnership, limited liability company, trust or other entity or
organization by, against or relating to the Company; and
(vi) the Company complies in all material respects with, and has at
all times complied in all material respects with, each statute,
law, ordinance, decree, order, rule, permit, regulation, writ,
injunction or judgment of any governmental body or agency,
whether a federal, state or local governmental body or agency of
Mexico, including without limitation all laws relating to mining,
tax, environmental and employee / labor matters to which the
Company or any of its assets or operations may be subject.
3.2 Representations and Warranties of the PURCHASER. The PURCHASER
represents and warrants to the SELLER as follows:
(a) PURCHASER is a corporation duly organized, validly existing and in good
standing under the laws of the Province of British Columbia, Canada.
(b) The PURCHASER has full power and authority (including full corporate or
other entity power and authority) to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement constitutes the valid and
legally binding obligation of PURCHASER, enforceable in accordance with its
terms and conditions. PURCHASER need not give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions contemplated by this
Agreement. The execution, delivery and performance of this Agreement and all
other agreements contemplated hereby have been duly authorized by PURCHASER.
(c) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will (A) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which PURCHASER is subject or any provision of its charter, bylaws, or
other governing documents or (B) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which PURCHASER is a party or by which it is bound or to which any of its
assets is subject.
(d) PURCHASER is not acquiring the Shares with a view to or for sale in
connection with any distribution thereof within the meaning of the U.S.
Securities Act of 1933, as amended. PURCHASER confirms that, in addition to the
role it has played in the management of the Company during the past year, it has
had the opportunity to conduct an extensive due diligence investigation of the
Company and to acquire such information about the business, properties, and
financial condition of the Company as PURCHASER has requested, and all such
information has been received.
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ARTICLE IV
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Survival of Representations, Indemnification.
---------------------------------------------
4.1 Survival of Representations. Except as otherwise provided by this
Agreement, the respective representations and warranties of the SELLER and
PURCHASER contained in this Agreement or in any Schedule or Exhibit attached
hereto shall survive the purchase and sale of the Shares pursuant to this
Agreement (unless the damaged party knew or had reason to know of any
misrepresentations or breach of warranty at the time of Closing) until the
second anniversary of the Final Transaction Date.
4.2 Indemnification.
(a) The SELLER agrees, to indemnify and hold PURCHASER and its officers,
directors, employees, members and agents harmless from damages, losses or
expenses (including, without limitation, reasonable attorney's, accountant's and
expert's fees and expenses) suffered or paid, directly or indirectly, as a
result of, arising out of or relating to: (i) the failure of any representation
or warranty made by the SELLER in this Agreement or in any Exhibit or Schedule
attached hereto to be true and correct in all respects as of the date of this
Agreement and as of the Closing Date and (ii) the breach of any covenant or
agreement made by the SELLER in this Agreement or in any Exhibit, Schedule or
related document in connection with the transactions contemplated by this
Agreement. The SELLER'S aggregate liability (for indemnification or otherwise)
with respect to any and all claims under this Section 4.2(a) shall not exceed
the amounts actually paid by PURCHASER to SELLER pursuant to this Agreement.
(b) The PURCHASER agrees to indemnify and hold the SELLER and its
officers, directors, employees, members and agents harmless from damages, losses
or expenses (including, without limitation, reasonable counsel's, accountant's
and expert's fees and expenses) suffered or paid, directly or indirectly, as a
result of or arising out of or relating to: (i) the failure of any
representation or warranty made by PURCHASER in this Agreement or in any Exhibit
or Schedule attached hereto to be true and correct in all respects as of the
date of this Agreement and as of the Closing Date and (ii) the breach of any
covenant or agreement made by the PURCHASER in this Agreement or in any Exhibit,
Schedule or related document in connection with the transactions contemplated by
this Agreement. The PURCHASER'S aggregate liability (for indemnification or
otherwise) with respect to any and all claims under this Section 4.2(b) shall
not exceed the amounts actually paid by PURCHASER to SELLER pursuant to this
Agreement.
ARTICLE V
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Obligations of the SELLER and the PURCHASER Prior to the Third Transaction Date
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5.1 Sale of Shares. The SELLER agrees that from the date hereof to the
Third Transaction Date, other than the sale of the Shares from the SELLER to the
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PURCHASER provided for in this Agreement, it shall not in any way transfer,
dispose of or encumber any shares of the Company.
ARTICLE VI
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Management of the Company
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6.1 Responsibility of the Board of Directors. The management of the Company
in accordance with its charter and bylaws is the responsibility of a Board of
Directors. The PURCHASER, the SELLER and the Company shall each use their
commercially reasonable best efforts to cause the Company to hold a shareholders
meeting on the date and at the time of the Closing of the Third Transaction to
accomplish the following: (a) the resignation of the present members of the
Board of Directors and officers appointed by the SELLER and (b) the appointment
of new members of the Board of Directors and officers of the Company designated
by the PURCHASER.
ARTICLE VII
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Additional Agreements
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7.1 Cooperation. Each party to this Agreement agrees to reasonably
cooperate with the other parties to this Agreement and their agents for the
purpose of effecting the transactions contemplated by this Agreement at no
additional charge to the other parties to this Agreement, and, in connection
therewith, to provide all information and material and to execute and deliver
all documents, instruments and papers reasonably requested by the other parties
and their counsel.
7.2 Termination of First Letter Agreement. Each party to this Agreement
agrees that, upon execution of this Agreement, the First Letter Agreement and
the Second Letter Agreement are terminated, null, void, and of no further force
or effect.
7.3 Release. Concurrently with the execution of this Agreement, the SELLER
and the Company shall execute and deliver to each other the Mutual Release
attached hereto as Exhibit 7.3.
7.4 Post-Closing Items. Promptly following each Closing, the Company shall:
(i) properly record in the registry book of the Company the PURCHASER as the
owner of that portion of the Shares transferred to the PURCHASER at such
Closing; and (ii) prepare and present the necessary correspondent advice of
transfer of shares to the appropriate governmental authorities.
7.5 Tax Representative. The SELLER shall make all necessary arrangements to
pay any and all tax due in Mexico in accordance with applicable law. SELLER
agrees that PURCHASER is under no obligation whatsoever to withhold or pay any
amount of the tax owed by SELLER resulting from the Transactions and SELLER
further waives any right to seek payment from PURCHASER of any tax liability
incurred by SELLER. The SELLER will, prior to the Closing of the Third
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Transaction, provide the PURCHASER with documentation which confirms that the
SELLER has paid the applicable taxes owing as a result of the completion of the
First Transaction and the Second Transaction.
ARTICLE VIII
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Termination
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8.1 Termination. This Agreement may be terminated, as to any
Transactions that have not been completed and only as to such uncompleted
transactions, prior to the applicable Closing:
a) by the mutual written consent of the PURCHASER and the SELLER;
b) by the SELLER, if
(i) the PURCHASER has or will have breached any representation,
warranty or agreement contained in this Agreement in any material
respect; provided, however, that, if such breach is curable by
the PURCHASER through the exercise of its reasonable efforts and
the PURCHASER continues to exercise such reasonable efforts, the
SELLER may not terminate this Agreement unless such breach is not
cured in a manner satisfactory to the SELLER in its reasonable
discretion within the PURCHASER Cure Period. The "PURCHASER Cure
Period" shall mean the period beginning on the date on which the
SELLER delivers to the PURCHASER written notice setting forth in
reasonable detail the circumstances giving rise to such breach
and ending thirty calendar days thereafter;
(ii) the applicable Closing will not have occurred on or before the
applicable Transaction Date; provided, that the SELLER will not
be entitled to terminate this Agreement if the PURCHASER'S
failure to comply fully with their obligations is rectified
within five (5) business days of the applicable Transaction Date
or if the SELLER's failure to comply fully with their obligations
under this Agreement has prevented the applicable Closing from
occurring on or before the applicable Transaction Date; or
(iii) a law or governmental order will have been enacted, entered,
enforced, promulgated, issued or deemed applicable to the
transactions contemplated by this Agreement by any governmental
entity that prohibits the applicable Closing;
c) by the PURCHASER, if
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(i) the SELLER has or will have breached any representation, warranty
or agreement contained in this Agreement in any material respect;
provided, however, that, if such breach is curable by the SELLER
through the exercise of its reasonable efforts and the SELLER
continues to exercise such reasonable efforts, the PURCHASER may
not terminate this Agreement unless such breach is not cured in a
manner satisfactory to the PURCHASER in its reasonable discretion
within the SELLER Cure Period. The "SELLER Cure Period" shall
mean the period beginning on the date on which the PURCHASER
delivers to the SELLER written notice setting forth in reasonable
detail the circumstances giving rise to such breach and ending
thirty calendar days thereafter;
(ii) the applicable Closing will not have been consummated on the
applicable Transaction Date; provided, that the PURCHASER will
not be entitled to terminate this Agreement if the SELLER'S
failure to comply fully into their obligations is rectified
within five (5) business days of the applicable Transaction Date
or if the PURCHASER's failure to comply fully with its
obligations under this Agreement has prevented the applicable
Closing from occurring on or before the applicable Transaction
Date; or
(iii) a law or governmental order will have been enacted, entered,
enforced, promulgated, issued or deemed applicable to the
transactions contemplated by this Agreement by any governmental
entity that prohibits the applicable Closing.
8.2 Effect of Termination. The right to terminate any and all Transactions
that have not been completed (upon termination, such Transactions to be referred
to as the "Unconsummated Transactions") is in addition to any other rights the
PURCHASER or the SELLER may have under this Agreement or otherwise, and the
exercise of a right of termination will not be an election of remedies and will
not preclude an action for breach of this Agreement. If this Agreement is
terminated, all continuing obligations of the parties under this Agreement as to
any completed transactions will survive the termination of any Unconsummated
Transactions. As to the Unconsummated Transactions, all continuing obligations
of the parties under this Agreement will terminate, except as set forth in
Section 4.1.
ARTICLE IX
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MISCELLANEOUS
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9.1 Expenses. Except as otherwise expressly provided herein, the parties
hereto shall pay all of their own expenses relating to the transactions
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contemplated by this Agreement, including, without limitation, the fees and
expenses of their respective counsel and financial advisers.
9.2 Governing Law. The interpretation, execution and construction of this
Agreement, and ll matters relating hereto, shall be governed by the laws of the
State of Colorado, without regard to conflicts of laws principles.
9.3 Amicable Resolution. In the event of any controversy or claim arising
out of or relating to this Agreement, the parties hereto shall consult and
negotiate with each other and, recognizing their mutual interests, attempt to
reach a solution satisfactory to both parties. If they do not reach settlement
within a period of 60 days, then either party may, by notice to the other party
and the International Centre for Dispute Resolution, demand mediation under the
International Mediation Rules of the International Centre for Dispute
Resolution. If settlement is not reached within 60 days after service of a
written demand for mediation, any unresolved controversy or claim arising out of
or relating to this Agreement shall be settled by arbitration in accordance with
the International Arbitration Rules of the International Centre for Dispute
Resolution. The place of the mediation and arbitration shall be held in Denver,
Colorado. The language of the mediation and arbitration shall be English.
9.4 Captions. The Article and Section captions used herein are for
reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
9.5 Publicity. Except as otherwise required by law, none of the parties
hereto shall issue any press release or make any other public statement, in each
case relating to, connected with or arising out of this Agreement or the matters
contained herein, without obtaining the prior approval of the other party to the
contents and the manner of presentation and publication thereof, which approval
shall not be unreasonably withheld.
9.6 Notices. All notices, demands and other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given (i) when delivered if personally
delivered by hand (with written confirmation of receipt), (ii) when received if
sent by an international or nationally recognized overnight courier service
(receipt requested), (iii) five business days after being mailed, if sent by
first class mail, return receipt requested, or (iv) when receipt is acknowledged
by an affirmative act of the party receiving notice, if sent by facsimile,
e-mail or other electronic transmission device (provided that such an
acknowledgement does not include an acknowledgment generated automatically by a
facsimile or other electronic transmission device). Notices, demands and
communications will, unless another address is specified in writing, be sent to
the address indicated below.
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If to the PURCHASER:
Rogue River Resources Corp.
Suite 1780 - 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Telephone: (000) 000-0000
Facsimile: (604) 669- 1464
e-mail xxxxxxxx@xxxxx.xxx
with a copy to:
Xxxxxx X Xxxxxxxx
000 Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx; Xxxxxxx Xxxxxxxx
Xxxxxx, X0X 0X0
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
e-mail xxxx@xxxxxxxx.xx
If to the SELLER:
Xxxxxxx - Xxxx Gold Company, Inc.
0000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxx
XXX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
e-mail Xxxxx@xxxxxx.xxx
with a copy to:
Xxxxxxxx X. Xxxxx, Esq.
Solomon Xxxxx Xxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx
XXX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
e-mail xxxxxx@xxxxxxxx.xxx
If to the Company:
Xxxxxx Xxxxxxx, S.A. de C.V.
Xx xx xx Xxxxxx 000, Xxxx. 205
Torre Palmas
Xxxxx xx Xxxxxxxxxxx, Xxxxxx, X.X.00000
Telephone: 000 00 00 0000 0000
Facsimile: _011 52 55 5520 2893
e-mail Xxxxxxx.xxxxxx@xxxxx.xxx
14
9.7 Parties in Interest. This Agreement may not be transferred, assigned,
pledged or hypothecated by any party hereto, other than by operation of law.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors
and permitted assigns. Nothing contained in this Agreement shall constitute the
SELLER and the PURCHASER a partner of each other and nothing contained in this
Agreement shall constitute any party hereto as the agent of the other party.
9.8 Counterparts. This Agreement may be executed in two or more
counterparts, including by transmission of a facsimile of an original signature
page, all of which taken together shall constitute one instrument.
9.9 Entire Agreement. This Agreement, including the other documents
referred to herein which form a part hereof, contains the entire understanding
of the parties hereto with respect to the subject matter contained herein and
therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
9.10 Amendments. This Agreement may not be changed orally, but only by an
agreement in writing signed by parties, nor shall any failure or delay of a
party to exercise its rights hereunder operate as a waiver of such rights.
9.11 Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
9.12 Third Party Beneficiaries. Each party hereto intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person other than the parties hereto.
9.13 Arm's-Length Transaction. Each of the parties hereto acknowledges and
agrees that it is entering into this Agreement and the transactions contemplated
hereby without coercion or pressure and that the transactions contemplated by
this Agreement have been negotiated and concluded on an arm's-length basis.
9.14 Construction. The parties and their respective counsel have
participated jointly in the negotiation and drafting of this Agreement. In
addition, each of the parties acknowledges that it is sophisticated and has been
advised by experienced counsel and, to the extent it deemed necessary, other
advisors in connection with the negotiation and drafting of this Agreement. In
the event an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties and no
presumption or burden of proof will arise favoring or disfavoring any party by
15
virtue of the authorship of any of the provisions of this Agreement. The parties
intend that each representation, warranty and agreement contained in this
Agreement will have independent significance. If any party has breached any
representation, warranty or agreement in any respect, the fact that there exists
another representation, warranty or agreement relating to the same subject
matter (regardless of the relative levels of specificity) that the party has not
breached will not detract from or mitigate the fact that the party is in breach
of the first representation, warranty or agreement. Any reference to any law
will be deemed to refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise. The word "including" means "including
without limitation." A statement that an action has not occurred in the past
means that it is also not presently occurring. When any party may take any
permissive action, including the granting of a consent, the waiver of any
provision of this Agreement or otherwise, whether to take such action is in its
sole and absolute discretion. The use of the masculine, feminine or neuter
gender or the singular or plural form of words will not limit any provisions of
this Agreement. A statement that an item is listed, disclosed or described means
that it is correctly listed, disclosed or described, and a statement that a copy
of an item has been delivered means a true and correct copy of the item has been
delivered.
9.15 Time of Essence. With regard to all dates and time periods set forth
or referred to in this Agreement, time is of the essence.
IN WITNESS WHEREOF, the parties hereto have hereunto signed and delivered this
Stock Purchase Agreement through their duly authorized representatives.
PURCHASER
ROGUE RIVER RESOURCES CORP.
By /s/ W. Xxxx Xxxx
--------------------------------------
Name: W. Xxxx Xxxx
Title: President & CEO
SELLER
XXXXXXX -XXXX GOLD COMPANY, INC
/s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: President and Chief Executive Officer
16
COMPANY
XXXXXX XXXXXXX, S.A. De C.V.
/s/ Xxxxx X. Xxxxxxx C.
-------------------------------------
Name: Xxxxx X. Xxxxxxx C.
Title: President
17
SCHEDULE OF EXHIBITS
EXHIBIT VI Assignment of Rights Agreement, dated May 8, 2006
between Nexvu and PURCHASER
EXHIBIT 1.1(h) Net Smelter Returns
EXHIBIT 1.1(i) March 17, 2006 letter describing the Property
EXHIBIT 2.2(a) Letter containing share transfer/issue instructions
EXHIBIT 2.2(b) Purchase-Sale Letter
EXHIBIT 7.3 Mutual Release
18
EXHIBIT VI
ASSIGNMENT OF INTEREST
This Assignment of Interest is dated the 8th day of May, 2006 and made
BETWEEN:
NEXVU CAPITAL CORP., a body corporate, duly incorporated under the laws of
the Province of British Columbia, having an office at Xxxxx 0000, 000
Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X., X0X 0X0
(the "Company")
ROGUE RIVER RESOURCES CORP., a body corporate, duly incorporated under the
laws of the Province of British Columbia, having an office at Xxxxx 0000,
000 Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X., X0X 0X0
(the "Assignee")
WHEREAS;
A. The Company entered into a letter agreement dated May 24, 2005 with Xxxxxx
Xxxxxxx, S.A. de C.V.; Xxxxxxx-Xxxx Gold Company, Inc. ("FWG") and Xxxxx X.
Xxxxxxx C, in the form attached hereto as Schedule "A" (the "May Letter
Agreement").
B. The Company entered into a letter agreement dated December 4, 2005 with
FWG, Xxxxxxx Xxxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxx X. Seed, Xxxxxx Xxxxxxxx
and Xxxxx Xxxxxx in the form attached hereto as Schedule "B" (the "December
Letter Agreement").
C. The Company wishes to assign all of its rights, title and interest in and
to the May Letter Agreement and the December Letter Agreement to the
Assignee in accordance with the terms and conditions of this Assignment.
ARTICLE 1 -- INTERPRETATION
1.1 Definitions. In this Agreement "Assigned Property" means collectively the
May Letter Agreement and the December Letter Agreement.
1.2 Headings. All headings and titles in this Assignment are for reference only
and are not to be used in the interpretation of the terms hereof.
1.3 Amendment. Any amendment of this Assignment will not be binding unless in
writing and signed by the parties to this Agreement.
1.4 Included Words. Wherever the singular or the masculine are used herein, the
same will be deemed to include the plural or the feminine or the body politic or
corporate where the context or the parties so require.
1.5 Governing Law. This Assignment will be construed and enforced under and in
accordance with the laws of British Columbia.
1.6 Severability. Any provision of this Assignment which is prohibited by law
or otherwise ineffective will be ineffective only to the extent of such
prohibition or ineffectiveness and will be severable without invalidating or
otherwise affecting the remaining provisions of this Assignment.
1.7 Binding Effect. This Assignment will be binding on the Company and the
respective successors and permitted assigns of each party comprising the Company
and will enure to the benefit of the Assignee and its successors and assigns.
ARTICLE 2 -- GRANT OF ASSIGNMENT
1.1 Grant of Assignment. Upon payment to the Company of $10.00 by or on behalf
of the Assignee the Company hereby assigns, transfers and sets over to the
Assignee all of its estate, right, title and interest in and to the Assigned
Property.
ARTICLE 3 -- REPRESENTATIONS AND WARRANTIES
1.1 Representations and Warranties. The Company represents and warrants to the
Assignee as follows.
(1) Rights in Assigned Property: The Company has the right to the Assigned
Property;
(2) No Breaches: The Company has not committed any act or omitted to
perform any obligation, nor permitted any act or omission to occur,
which would be a breach or a default of obligations pursuant to the
Assigned Property;
(3) No Releases: The Company has not done anything to discharge or release
the other parties to the Assigned Property or from any of their
respective obligations or liabilities thereunder;
(4) Authority to Assign: The Company has a good right, full power and
absolute authority to assign, transfer and set over legal and
beneficial title to the Assigned Property to the Assignee in the
manner contemplated by this Agreement;
(5) No Other Assignment: None of the Assigned Property has been assigned
to or pledged, charged, mortgaged, or encumbered by the Company in
favour of any other person or authority and the Company assigns the
Assigned Property to the Assignee free from any security interest or
other lien, charge or encumbrance whatsoever held by the Company.
ARTICLE 4 -- COVENANTS
1.1 Positive Covenants. The Company will, from time to time, immediately upon
the Assignee's request and at the Assignee's sole cost and expense do all acts
and things and execute and deliver to the Assignee such other assignments,
documents, certificates, conveyances, assurances and authorizations, as the
Assignee may require (including without limitation specific assignments of
specific contracts and agreements relating hereto and any required consents of
third parties to such assignment) to give effect to the true intent and meaning
of this Assignment.
ARTICLE 5 -- MISCELLANEOUS
5.1 Notices. Notices hereunder may be given to either party at its address on
the front page of this Assignment.
5.2 Time of Essence. Time is of the essence of this Assignment.
IN WITNESS WHEREOF the parties has duly executed this Assignment as of the date
first above written.
NEXVU CAPITAL CORP. ROGUE RIVER RESOURCES CORP.
Per: /s/ W. Xxxx Xxxx Per: /s/ W. Xxxx Xxxx
-------------------------- ---------------------------
Authorized Signatory Authorized Signatory
Schedule "A"
------------
NEXVU CAPITAL CORP.
--------------------------------------------------------------------------------
May 24,3005
Xxxxxx Xxxxxxx, S.A. de C.V.
Xx. Xxxxx xx xxx Xxxxxx 000-000
Torre Palmas
Xxxxx xx Xxxxxxxxxxx
Xxxxxx 00000 D.F.
Xx. Xxxxxx Xxxxxxx
President
Xxxxxxx Watt Gold Company
0000 Xxxxxxxxxx Xxxxx
Xxxxx x'Xxxxx, Xxxxx
XXX 00000-0000
Xxxxx X. Xxxxxxx X.
Xx. Xxxxx xx xxx Xxxxxx 000-000
Xxxxx Palmas
Xxxxx xx Xxxxxxxxxxx
Xxxxxx 00000 D.F.
Dear Xxxxxx and Xxxxx
Re: Nexvu Capital Corp. ("Nexvu")
and Xxxxxxx-Xxxx Gold Company ("FWG")
The proposal outlined below is based on our understanding that the La Balsa
project (the "Property") is 100% owned by a Mexican company ("MM") which is
owned by FWG as to 65% and Xxxxx X. Xxxxxxx and partners (collectively
"Xxxxxxx") as to 35%. For the purposes of this letter the term "Optionee" shall
mean Nexvu or its assigns.
A. The Oxide Mineralization:
1. The Optionee and MM will enter into a joint venture for the
development of the Property (the "Joint Venture"). To facilitate the
Joint Venture the Property will be transferred to a new Mexican
company or to such other joint venture entity as is appropriate under
Mexican law for the purpose of MM and the Optionee developing the
Property as a joint venture (the joint venture entity referred to
herein as the "J.V. Entity"). MM will have a 32.5% interest in the
J.V. Entity and the Optionee will have a 67.5% interest (the
"Optionee's Interest") in the J.V. Entity, the Optionee's Interest to
he held in trust pending exercise of the Oxide Option referred to
below. If the Optionee fails to exercise the Oxide Option the
Optionee's Interest will be transferred to MM. The Optionee will be
the manager of the J.V. Entity and manage development of the Property
during the period the Optionee is exercising the Oxide Option and
thereafter manage the J.V. Entity through the management committee to
be established in accordance with the terms of the joint venture
agreement to be established.
Xxxxx 0000 - 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
PH: (000) 000-0000 / Facsimile: (000) 000-0000
2. The Optionee will have the option to earn a 67.5% interest in the J.V.
Entity (the "Oxide Option") by permitting the Property and putting the
oxide/transitional oxide mineralization on the Property into
production within 27 months of signing the final form of agreement to
be prepared which will incorporate the terms of this letter agreement.
Unless the Optionee has, by the end of the 27 month period referred to
above, spent US$10 million on putting the oxide/transitional oxide
mineralization on the Property into production, including Property
acquisition costs, the Optionee will be deemed to be in default of the
Oxide Option. Provided that the Optionee has spent the US$10 million
by the end of the 27 month period and requires more time to exercise
the Oxide Option the 27 month period referred to above will be
extended for up to one year provided the Optionee pays MM $50,000 for
each month the period is extended and the Optionce continues to pay to
MM the $50,000 quarterly fee referred to in paragraph 4 below.
3. MM will provide to the Optionee all technical data and other
information they have on the Property and, to the extent requested by
the Optionee, will assist the Optionee ono permitting or in moving the
Property to production.
4. The Optionee will pay MM $50,000 per quarter (te every 3 months) as a
consulting fee commencing on signing a final agreement until MM
commences to receive payment front free cash flow from production of
the oxide/transitional oxide mineralization on the Property.
5. Upon achieving production of the oxide/transitional oxide material MM
will receive 17.5% of free cash flow of such production with the
Optionee receiving 82.5% until the Optionee recoups the capital costs
which are over and above non-recoupable US$l0 million of capital
costs. Thereafter free cash flow will he split 67.5% to the Optionee
and 32.5% to MM. For the purposes of this agreement the term "free
cash flow" shall mean cash flow net of operating and capital costs
required for operations.
6. Upon execution of the final agreement referred to in the final
paragraph of this letter, the Optionee will pay the US$18,500 Mintec
claims it is owed by FWG in order for Mintec to provide FWG and the
Optionee with the technical data on the Property currently held by
Mintec.
B. The Sulphide Mineralization
1. Upon the Optionee exercising the Oxide Option the Optionee shall have
the option to earn 100% of the potential sulphide deposit on the
Property (the "Sulphide Option") by spending $3,000,000 on development
of the potential sulphide deposit within 3 years after having
exercised the Oxide Option.
2. MM will receive a maximum 4% NSR from the potential sulphide deposit
commencing with production as follows:
a. 1% NSR until all costs involved with bringing the sulphide ore
body to production are recouped.
b. Thereafter, royalties will be paid as follows:
i. 1% NSR below $0.80 per pound copper;
ii. 2% NSR above $0.79 to below $1.01 per pound copper,
iii. 3% NSR above $1.00 to below $1.30 per pound copper;
iv. 3.5% NSR above $1.29 to below $1.60 per pound copper; and
v. 4% NSR above $1.59 per pound of copper.
3. The Optionee will have an option to purchase a 1.5% NSR for $3,000.000
within one year after the final bankable feasibility study is
completed in respect to the sulphide deposit which if exercised, will
result in MM having the following royalty:
i. a 0.5% NSR below $ 1.01 per pound copper;
ii a 1.5% NSR above $1.00 to below $1.30 per pound copper;
iii. a 2% NSR above $I.29 to below $1.60 per pound copper; and
iv. a 2.5% NSR above $1.59 per pound of copper.
The Optionce/FWG Relationship
1. The Optionee will complete a total of US$2 million of funding by way
of convertible debentures (the "Convertible Debentures") to FWG on the
following basis:
a. a US$650,000 convertible debenture (the "First Convertible
Debenture") will he completed within one month of the Optionee
completing its initial public offering ("IPO"), a further
US$650,000 convertible debenture (the "Second Convertible
Debenture") will be completed within one year of completion of
the First Convertible Debenture and a further US$700,000
convertible debenture (the "Third Convertible Debenture") will he
completed within one year of completion of the Second Convertible
Debenture. The Optionee will use its best efforts to advance the
First Convertible Debenture by December 31, 2005 but in any event
by February 28, 2006 failing which the Optionee will pay MM US
$25,000 for each month of delay thereafter;
b. commencing one year after the commencement of free cash flow to
MM each of FWG and the Optionee may elect to have up to 50% of
the amounts advanced under the Convertible Debentures converted
to shares of FWG (in accordance with the terms referred to below)
or paid back in cash with interest as calculated above;
c. for the purposes of the Convertible Debentures referred to above
the interest rates shall be the prime rate of interest charged by
the Bank of America on the date a Convertible Debenture financing
closes plus 3% per annum provided that the rate charged shall not
be less than 5% per annum and more than 10% per annum;
d. the funds from the Convertible Debentures will not be used to pay
previous debts owed by FWG or MM and 90% of the funds from the
Convertible Debentures will be used to fund the exploration
activities of MM referred to in paragraph 2 below. The funds that
remain with FWG and the funds that are advanced to MM may be used
to pay salaries or consulting fees to inside management of FWG or
MM provided that payment is made for time spent on projects for
which the Optionee has the right to participate in a joint
venture on as referred to paragraph 2 below. All of the funds
from the Convertible Debentures will be advanced to FWG initially
and then 90% of such funds will then be advanced from FWG to MM
where such funds advanced to MM will be immediately capitalized
in proportion of 65%/35% to the account of each of the two
shareholders of MM and set aside exclusively for the funding of
the exploration activities. A four person management committee
shall be established for the purposes of deciding how the
Convertible Debenture funds shall be expended (the "Committee").
The Committee shall be comprised of one nominee of each of the
two shareholders of MM (with the FWG nominee being an
independent director of FWG) plus two representatives to be
nominated by the Optionee. FWG will use its best efforts to
obtain the agreement from its creditors (approximately US$1.5
million) not to require payment of their debts until the Oxide
Option is exercised or is otherwise terminated.
2. MM and the Optionee will, in respect to the expenditure of funds
MM receives from the Convertible Debentures, form a strategic
alliance pursuant to which they shall cooperate in a regional
generative program for the purpose of identifying and exploring
new base and precious metals projects in Latin America (such
projects to be referred to as an "Alliance Project"). At any time
after MM has expended more than $400,000 on any given Alliance
Project the Optionee will have the right to enter into a joint
venture with MM for the further development of such Alliance
Project (the "Earn-ln Option") by the Optionee giving notice to
MM that it is exercising its Earn-in Option and thereafter
expending 200% of the amount of expenditures that MM has spent to
that point in order for the Optionee to have earned a 51% joint
venture interest in such Alliance Project. At any time after MM
has spent $400,000 on an Alliance Project it may give a 60 day
notice to the Optionee that the Optionee must exercise its
Earn-In Option and if the Oplionee fails to elect to exercise its
Earn-In Option then MM may either continue to develop the
Alliance Project itself or seek a third party to joint venture
the project.
MM will have the right to expend its own funds which are not
derived from the Convertible Debentures on projects which are not
Alliance Projects (such projects being referred to as
"Non-Alliance Projects"). MM will give the Optionee a first right
of offer to enter into a joint venture with MM for the
development of Non-Alliance Projects prior to MM seeking a third
party joint venture partner for the development of Non-Alliance
Projects, the terms of such joint venture with the Optionee to be
negotiated at the time the right of first offer is triggered.
3. The Optionee will, on an as available basis, provide MM with
technical support staff as needed by MM at cost plus 10%.
4. MM will have a board member on the mining J.V, Entity (such board
member to be an independent director of MM) and the Optionee will
have a board member on MM and if the Optionee so requests a board
member on the board of FWG.
5. MM may use the quarterly payment referred to in paragraph A.4
above to pay salaries or other payables of MM.
6. Nexvu will assist FW0 in providing advice in respect to market
support and investor relations if FWG so requests.
If the above terms are acceptable please acknowledge your agreement by signing
and returning a copy of this letter to us. Although execution of this letter
agreement will create binding legal obligations it is contemplated that this
letter agreement will be followed by a final option agreement which will
incorporate the terms referred to herein and will have attached to it a form of
joint venture agreement in the joint venture form prescribed by the Rocky
Mountain Mineral Foundation.
Yours truly
NEXVU CAPITAL CORP.
Per: /s/ W. Xxxx Xxxx
------------------------------
W. Xxxx Xxxx
Agreed to and Acknowledged:
Xxxxxx Xxxxxxx, S.A. de C.V.
Per: Xxxxx X. Xxxxxxx C.
-------------------------------
Authorized Signatory
Xxxxxxx Watt Gold Company
Per: /s/ Xxxxxx Xxxxxxx
-------------------------------
Authorized Signatory
/s/ Xxxxx X. Xxxxxxx C.
-----------------------------------
Xxxxx X. Xxxxxxx C.
Schedule B
----------
NEXVU CAPITAL CORP.
Xxxxx 0000-000 Xxxxxxx Xx.
Xxxxxxxxx, X.X.
Xxxxxx X0X 0XX
TEL: 000.000.0000
FAX: 000.000.0000
December 5, 2005
Xxxxxxx - Xxxx Gold Company, Inc. Xx. Xxxxx X. Seed
2582 Xxxx Court c/o The Astra Ventures, Inc.
Xxxxxxxx, XX, 00000 00 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX, 00000
Attention: Xx. Xxxxx Xxxxxx, President
Xx. Xxxxxxx Xxxxxxxx Xx. Xxxxxx X. Xxxxxxxx
000 X. Xxxxxx Xxxx Xxxx # 250 3770 Xxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx, 00000 Xxxxxxxxx, XX, 00000
Xx. Xxxxxx X. Xxxxxxx Xx. Xxxxx Xxxxxx
Apt. 79 - 00000 X. Xxxxxxx Xxxxx Xxxxx 2582 Xxxx Court
Liberty Lake, WA, 99019 Xxxxxxxx, XX, 00000
Dear Sirs:
Re: Nexvu Capital Corp. ("Nexvu") and Xxxxxxx - Xxxx Gold Company, Inc. ("FWG")
and Xxxxxx Xxxxxxx, S.A. de C.V. ("MM")
The purpose of this letter is to provide the terms upon which Nexvu offers to
purchase all of FWG's right, title and interest in and to the shares of MM
issued to FWG together with any other interest FWG has in the assets of MM
(collectively referred to herein as the "Interest"). Although it is contemplated
that a more formal agreement (the "Formal Agreement") will be entered into in
respect to this matter, this letter agreement will create binding legal
obligations between the parties. For the purposes of this letter agreement the
term "Property" means the property known as "La Balsa" which is owned by MM. For
the purposes of this letter agreement Messrs. Xxxxx Xxxxxx, Xxxxx X. Seed,
Xxxxxx X. Xxxxxxx, Xxxxxxx Xxxxxxxx and Xxxxxx X. Xxxxxxxx are collectively
referred to herein as the "Directors".
Subject to the terms of this letter agreement Nexvu offers to purchase the
Interest for US$2,235,000 in stages, payable as follows:
1. $50,000 by January 15, 2006;
2. $695,000 by April 30, 2006 to earn 20% of the Interest (the First Share
Tranche");
3. $745,000 by October 31, 2006 to earn another 20% of the Interest (the
"Second Share Tranche"); and
4. $745,000 by April 30, 2007 to earn the remaining 25% of the Interest (the
"Third Share Tranche").
Nexvu may extend the time in which any of the above payments are to be made by
up to 60 days provided that Nexvu pays $25,000 for each 30 days of such
extension. Nexvu will have the right to accelerate payments at any time and may
assign its rights under this agreement to a third party. Nexvu confirms that it
will use its best efforts to complete the acquisition of the Interest as soon as
it is financially able to do so, taking into account its cash resources in the
context of its cash needs. Nexvu will, in any event, accelerate the completion
of the acquisition of the Interest if Nexvu completes a financing of more than
US$15 million.
2
Nexvu will, upon acquisition of the entire Interest, provide FWG with a 1% NSR
in respect to the porphyry portion of the Property subject to the right of Nexvu
to purchase 50% of such NSR for US$1 million (the "NSR"). If within seven years
of the date of this letter agreement the Property is not in production Nexvu
will, at FWG's option, purchase 50% of the NSR. FWG will have the right to
assign the NSR.
The obligation of FWG to complete the sale to Nexvu of all or part of the
Interest is subject to FWG obtaining, on behalf of MM, all necessary approvals
required by MM for the transfer of the Interest to Nexvuand the Directors and
FWG will use their best efforts to obtain such approvals.
Nexvu's offer to FWG is subject to the following conditions (the "Conditions")
which Nexvu, in its sole discretion may waive:
a) due diligence confirming the satisfactory financial status of MM;
b) confirmation of good title of MM in the Property including confirmation
that the necessary 2005 assessment work has been made on the Property to
cause the Property to be in good standing;
c) confirmation that to the best knowledge of FWG there are no outstanding
lawsuits against FWG or MM and no claims or liens against the Interest; and
d) the Formal Agreement being entered into.
This offer and the proposed acquisition of the Interest shall remain subject to
the terms of the letter agreement dated May 24, 2005 entered into among Nexvu,
MM, FWG and Xxxxx Xxxxxxx (the "May Letter Agreement") such that in the event
that the within offer outlined in this letter agreement is not accepted or any
of the Conditions are not either satisfied or waived by Nexvu, the relationship
between Nexvu and FWG as governed by the terms of the May Letter Agreement shall
remain in full force and effect.
The parties agree that the acquisition by Nexvu of the First Share Tranche will
take place upon payment by Nexvu regardless of whether FWG obtains prior
shareholder approval. However, if FWG requires shareholder approval for the
acquisition by Nexvu of the Second Share Tranche and the Third Share Tranche the
acquisition of the Second Share Tranche and the Third Share Tranche will be
subject to FWG obtaining shareholder approval provided, however, that it will be
in the sole discretion of FWG whether shareholder approval is required.
In the event this offer is accepted by FWG, FWG will:
a) upon payment to FWG of the amounts referred to in points 2, 3, and 4 in the
second paragraph of this letter, transfer to Nexvu the number of shares of
MM equal to the percentage of MM purchased in each of 2, 3, and 4 above;
and
b) if shareholder approval is required for the acquisition by Nexvu of the
Second Share Tranche and the Third Share Tranche use its best efforts to
obtain shareholder approval as soon as reasonably possible, it being
understood that whether FWG shareholder approval is required will be in the
sole discretion of FWG.
In the event this offer is accepted by FWG, FWG and Xxxxxx Xxxxxxx will submit
to Nexvu the resignation of Xxxxxx Xxxxxxx as a director of MM and will use
their best efforts (including FWG voting its shares of MM in favour of the
appointment of Nexvu nominees as directors of MM as hereinafter referred to) to
sign such documents and take such steps as necessary to cause a minimum of one
nominee of Nexvu to replace Xxxxxx Xxxxxxx as director of MM and to the extent
3
possible, take such steps and sign such documents as required in order to
provide nominees of Nexvu to have two directors appointed to the board of MM
In the event this offer is accepted by FWG the Directors will enter into lock up
agreements pursuant to which they will agree to vote the shares they own in FWG
in favour of the acquisition by Nexvu of the Second Share Tranche and the Third
Share Tranche if shareholder approval is required.
This offer is open for acceptance until Monday December 5, 2005 at 5p.m. Pacific
Standard Time failing which it will be deemed to be withdrawn. Notice of
acceptance can be given by signing this letter wherein indicated and faxing a
copy of this letter to Nexvu Capital Corp. at (000) 000-0000.
Yours truly,
NEXVU CAPITAL CORP.
Per:
/s/ W. Xxxx Xxxx
W. Xxxx Xxxx
Agreed to and accepted by:
XXXXXXX - XXXX GOLD COMPANY, INC. Agreed to and accepted by:
Per:
/s/ Xxxxx Xxxxxx /s/ Xxxxx X. Seed
----------------------------------- ------------------------------------
Authorized Signatory XXXXX X. SEED
Agreed to and accepted by: Agreed to and accepted by:
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx Xxxxxxxx
----------------------------------- -----------------------------------
XXXXXX X. XXXXXXX XXXXXXX XXXXXXXX
Agreed to and accepted by: Agreed to and accepted by:
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxx Xxxxxx
----------------------------------- -----------------------------------
XXXXXX X. XXXXXXXX XXXXX XXXXXX
EXHIBIT 1.1(h)
NET SMELTER RETURNS
The following constitutes the terms and conditions with respect to the
calculation and payment of the 1% Net Smelter Returns royalty (the "NSR Royalty"
or "Royalty") payable in United States Dollars, in connection with the porphyry
portion of the Property, as contemplated by the Stock Purchase Agreement dated
January __, 2007 (the "Stock Purchase Agreement") among Xxxxxx Xxxxxxx, S.A. De
C.V. (the "Payor"), Xxxxxxx-Xxxx Gold Company, Inc. (the "Payee") and Rogue
River Resources Corp. (the term Property is used herein as that term is defined
in the Stock Purchase Agreement).
1. Definition of Net Smelter Returns. "Net Smelter Returns" are defined as the
Gross Revenues received (as defined below) by the Payor from the sales of any
ores, mineral resources or mineral products ("Products") extracted and produced
from the Property, less (i) all costs to the Payor of weighing, sampling,
determining moisture content and packaging such material and of loading and
transporting it to the point of sale, including insurance and in-transit
security costs; (ii) all smelter costs and all charges and penalties imposed by
the smelter, refinery or purchaser; and (iii) ad valorem taxes, severance taxes
and governmental royalties and any other taxes, charges or assessments as are
imposed upon the production except for applicable income taxes.
Gross Revenues shall be defined as the greater of:
- the actual gross revenues received by the Payor from the sales of the
Products, or
- gross revenues from the sales of the Products based on the price
attributed to the Products so sold shall the the price per ounce/
pound/tonne of Product as quoted on the London P.M. fix, the
relevant London Metal Exchange official statement quotation, or, if
necessary, such other internationally recognized exchange, averaged
over the calendar quarter prior to the date of final settlement from
the smelter, refinery or other buyer of the Products on which the
Royalty is to be paid (the "Quoted Price").
For the purposes of calculating Net Smelter Returns in the event the Payor
elects not to sell any portion of any Products extracted and produced from the
porphyry portion of the Property but instead elects to have any such Products
credited to or held for its account with any smelter, refiner or broker, such
Products shall be deemed to have been sold at the Quoted Price on the day such
Products are actually credited to or placed in the Payor's account.
2. Certain Characteristics of the Royalty. The Payee's interest in the Royalty
is a non-participating interest in the Property which entitles the Payee to
receive certain payments based upon the production and sale or deemed sale of
Products from the porphyry portion of the Property as provided herein. The
Royalty does not: (a) entitle the Payee to direct or control or be consulted in
any manner with respect to the timing, nature, extent or any other aspect of
exploration, development, production or other operations on the Property; (b)
entitle the Payee to grant to third parties leases, licenses, easements or other
rights to conduct operations on the Property; (c) entitle the Payee to any
partition of the Property; or (d) entitle the Payee to any ownership interest
in any improvements on the Property, equipment and other personal property
located thereon, or in any proceeds received by the Payor from the sale, lease
or other disposition thereof.
3. Commingling. The Payor shall have the right to commingle Products with ores,
minerals or materials produced from lands other than the porphyry portion of the
Property or from other properties, after such Products have been weighed or
measured, sampled and analyzed in accordance with sound mining and metallurgical
practices such that the Payee's production Royalty can be reasonably and
accurately determined. Upon written request by the Payee to the Payor and at the
Payee's expense, the Payee shall have the right to have a representative present
at the time all such samples and measurements are taken. The Payee's
representative shall have the right to secure sample splits for the purpose of
confirming the accuracy of all measurements.
4. Stockpiling. The Payor may stockpile any Products from the porphyry portion
of the Property at such place or places as it may elect, either upon the
Property or upon another property.
5. Calculation and Delivery of Royalty Payments. Royalty payments shall be due
on the first day of the second month following the end of each calendar quarter
during which production of Products occurs, and on the first day of the second
month following each and every subsequent calendar quarter for so long as the
Payor mines and sells Products or otherwise receives proceeds from the
production of Products from the porphyry portion of the Property. Production
Royalty payments shall be accompanied by a statement sufficient to allow the
Payee to determine the method of computation of each Royalty payment and the
accuracy thereof. Each statement furnished to the Payee shall be deemed to be
correct and binding on the Payee unless, within one year of its receipt, the
Payee notifies the Payor in writing that it disputes the correctness of such
statement.
6. Audit. The Payor shall maintain true and correct records of all Products
mined, processed and sold or deemed to be sold) and all proceeds otherwise
received from the porphyry portion of the Property, and the Payee shall have
the right to audit such records at the Payor's offices during normal business
hours upon reasonable prior notice, provided such audit is conducted by the
Payee or by an accounting firm of recognized standing. The Payor shall make
available all books and records, refinery statements, and other invoices,
receipts and records necessary for purposes of such audit, and shall make
available workspace and copying facilities, or permit the Payee and its
representatives to install copying facilities for use in connection with its
audit activities.
7. Method of Making and Reporting Payments. All payments of money required to be
made by the Payor to the Payee hereunder shall he made by cheque to the Payee on
or before the due date at the Payee's address as set forth in the Agreement, or
such other address as may be designated in writing from time to time by the
Payee. Upon written request from the Payee to the Payor prior to the due date of
any payment of money, the Payee may direct that the payment be made by way of
wire transfer to an account designated by the Payee. Upon making payment as
provided herein, the Payor shall be relieved of any responsibility for the
distribution of such payment among the Payee and any of its successors or
assigns. Concurrently with the payment of the Royalty, the Payor shall furnish
to the Payee a statement of account setting forth. in reasonable detail the
computation of the Royalty.
8. Additional Agreements of the Parties.
(1) No Obligation. In no event, by the creation of the Royalty
hereunder or otherwise, shall the Payor be deemed subject to any duty, express
or implied, to explore for ores, mineral resources or mineral products or
produce Products from the Property, and the timing, manner, method and amounts
of any such production and exploration shall be in the sole discretion of the
Payor, and subject to the applicable laws.
(2) Hedging. The Payor and the Payee agree that the Payor shall have no
obligation, express or implied, to engage in (or not to engage in) any forward
sales or other hedging activities with respect to Products from the porphyry
portion of the Property .
9. Subordination. The payment of any amount pursuant to this Royalty shall be
paramount to and have priority over the payment of any amount pursuant to any
other existing royalty with respect to the Property.
10. Arbitration. In the event of any controversy or claim arising out of or
relating to this schedule, the parties hereto shall consult and negotiate with
each other and, recognizing their mutual interests, attempt to reach a solution
satisfactory to both parties. lithe}, do not reach settlement within a period of
60 days, then either party may, by notice to the other party and the
International Centre for Dispute Resolution, demand mediation under the
International Mediation Rules of the International Centre for Dispute
Resolution, If settlement is not reached within 60 days after service of a
written demand for mediation, any unresolved controversy or claim arising out of
or relating to this schedule shall be settled by arbitration in accordance with
the international Arbitration Rules of the International Centre for Dispute
Resolution. The place of the mediation and arbitration shall be held in Denver,
Colorado. The language of the mediation and arbitration shall be English.
Exhibit 1.1(i)
--------------
XXXX ABOGADOS, S.C.
Colina de los Aconitos Xx. 00 Xxxx. 000
Xxxxx. Boulevares Naucalpan, Edo. Mex. 53140
March 17th, 0000
Xx. Xxxxxx Xxxxxxxx
Xxxxx 0000
000 Xxxxxxx Xxxxxx
Xxxxxxxxx XX X0X 0X0
As per your request, here is the information on the mining concessions in the
municipality of Xxxxxx Xxxxxxxx, State of Michoacan, Mexico, owned by Xxxxxx
Xxxxxxx, S. A. de C.V., all of them within the jurisdiction of the Mining Agency
of Morelia, State of Michoacan:
"BALSA 1" concession no. 214020; title date August 6th, 2001; surface 150
hectares; recorded August 7th, 2001 under no. 240 page 120 of volume 320 of the
book of mining concessions in the Public Mining Registry in Mexico City;
effective period August 7th, 2001 through August 6th, 2051, mining taxes have
been fully paid, status in force, and free of any liens or encumbrances.
Therefore, in my opinion the concession is in good legal standing.
"BALSA 2" concession no. 214017; title date August 6th, 2001; surface 50
hectares; recorded August 7th, 2001 under no. 237 page 119 of volume 320 of the
book of mining concessions in the Public Mining Registry in Mexico City;
effective period August 7th, 2001 through August 6th, 2051, mining taxes have
been fully paid, status in force, and free of any liens or encumbrances.
Therefore, in my opinion the concession is in good legal standing.
"BALSA 3" concession no. 214019; title date August 6th, 2001; surface 100
hectares; recorded August 7th, 2001 under no. 239 page 120 of volume 320 of the
book of mining concessions in the Public Mining Registry in Mexico City;
effective period August 7th, 2001 through August 6th, 2051, mining taxes have
been fully paid, status in force, and free of any liens or encumbrances.
Therefore, in my opinion the concession is in good legal standing.
"BALSA 4" concession no. 214018; title date August 6th, 2001; surface 100
hectares; recorded August 7th, 2001 under no. 238 page 119 of volume 320 of the
book of mining concessions in the Public Mining Registry in Mexico City;
effective period August 7th, 2001 through August 6th, 2051, mining taxes have
been fully paid, status in force, and free of any liens or encumbrances.
Therefore, in my opinion the concession is in good legal standing.
"BALSA 5" concession no. 214016; title date August 6th, 2001; surface 100
hectares; recorded August 7th, 2001 under no. 236 page 118 of volume 320 of the
book of mining concessions in the Public Mining Registry in Mexico City;
effective period August 7th, 2001 through August 6th, 2051, mining taxes have
been fully paid, status in force, and free of any liens or encumbrances.
Therefore, in my opinion the concession is in good legal standing.
"BALSA 6" concession no. 215488; title date February 21th, 2002; surface 100
hectares; recorded February 22th, 2002 under no. 268 page 134 of volume 324 of
the book of mining concessions in the Public Mining Registry in Mexico City;
effective period February 22th, 2002 through February 21th, 2052, mining taxes
have been fully paid, status in force, and free of any liens or encumbrances.
Therefore, in my opinion the concession is in good legal standing.
"BALSA 7" concession no. 215484; title date February 21th, 2002; surface 56.3780
hectares; recorded February 22th, 2002 under no. 264 page 132 of volume 324 of
the book of mining concessions in the Public Mining Registry in Mexico City;
effective period February 22th, 2002 through February 21th, 2052, mining taxes
have been fully paid, status in force, and free of any liens or encumbrances.
Therefore, in my opinion the concession is in good legal standing.
"BALSA 8" concession no. 215485; title date February 21th, 2002; surface 56.3780
hectares; recorded February 22th, 2002 under no. 265 page 133 of volume 324 of
the book of mining concessions in the Public Mining Registry in Mexico City;
effective period February 22th, 2002 through February 21th, 2052, mining taxes
have been fully paid, status in force, and free of any liens or encumbrances.
Therefore, in my opinion the concession is in good legal standing.
"BALSA 9" concession no. 215486; title date February 21th, 2002; surface 77.5089
hectares; recorded February 22th, 2002 under no. 266 page 133 of volume 324 of
the book of mining concessions in the Public Mining Registry in Mexico City;
effective period February 22th, 2002 through February 21th, 2052, mining taxes
have been fully paid, status in force, and free of any liens or encumbrances.
Therefore, in my opinion the concession is in good legal standing.
"BALSA 10" concession no. 215445; title date February 21th, 2002; surface 100
hectares; recorded February 22th, 2002 under no. 225 page 113 of volume 324 of
the book of mining concessions in the Public Mining Registry in Mexico City;
effective period February 22th, 2002 through February 21th, 2052, mining taxes
have been fully paid, status in force, and free of any liens or encumbrances.
Therefore, in my opinion the concession is in good legal standing.
"BALSA 11" concession no. 215487; title date February 21th, 2002; surface 50
hectares; recorded February 22th, 2002 under no. 267 page 134 of volume 324 of
the book of mining concessions in the Public Mining Registry in Mexico City;
effective period February 22th, 2002 through February 21th, 2052, mining taxes
have been fully paid, status in force, and free of any liens or encumbrances.
Therefore, in my opinion the concession is in good legal standing.
The information related to the effective period of the concessions is
considering the amendments to the Mining Act in force since January 1st, 2006.
Please contact me if you require any additional information
Yours sincerely,
/s/ Xxxxxxxx Xxxx
Lic. Xxxxxxxx Xxxx.
EXHIBIT 2.2(a)
Xxxxxxxx Xxxx
Colina de los Aconitos # 00-000
Xxxxx. Xxxxxxxxxx
Xxxxxxxxx, Xxxxxx, C.P. 53140
MEXICO.
As you know Xxxxxxx-Xxxx Gold Company, Inc., (FW) is the owner of 650 shares of
fixed minimum capital stock of Xxxxxx Xxxxxxx, S.A. de C.V. (MM), and 396,760
shares of variable capital stock of the same company.
Please find enclosed herewith a copy of the stock purchase and sale agreement
executed by and between FW and Rogue River Resources, Corp., (RRR) with respect
to all the shares referred to in the above paragraph. The transfer of ownership
of the shares shall be made in three different transactions, as RRR pays the
price agreed between the parties for each such transaction.
RRR and FW have agreed that the corresponding share certificates shall be kept
by you in your capacity as secretary of the board of directors of MM, during the
entire term of the stock purchase and sale agreement and so that, when you
receive a confirmation from FW that the amount established as price for each of
the three transactions has been transferred by wire to RRR to the banking
account stated by FW, you proceed to: (i) cancel the certificate evidencing the
shares corresponding to the transaction which price shall have been paid; (ii)
issue a new certificate evidencing the same number of shares in favor of RRR and
(iii) make the corresponding entries in the company's share registry book.
If FW fails to confirm the receipt of funds, but RRR sends you the documentation
evidencing the same, and if FW fails to contest the same within 5 business days
of the date contemplated for each transaction, you shall proceed upon the terms
of the foregoing paragraph.
If FW does contest the delivery of funds by RRR within the abovementioned term,
you must keep the share certificates, without taking any action thereon, and you
shall wait to receive joint instructions from FW and RRR or from any competent
judicial authority.
Sincerely,
Xxxxxxx-Xxxx Gold Company, Inc. Rogue River Resources, Corp.
By: /s/ Xxxxx Xxxxxx By: /s/ W. Xxxx Xxxx
EXHIBIT 2.2(b)
LETTER FOR PURCHASE AND SALE SHARES OF THE COMPANY KNOWN AS XXXXXX XXXXXXX, S.A.
DE C.V, ENTERED INTO BY, AS ONE PARTY, XXXXXXX-XXXX GOLD COMPANY, INC
REPRESENTED BY XX. XXXXX XXXXXX (HEREINAFTER "THE SELLER"), AND AS THE OTHER
PARTY, ROGUE RIVER RESOURCES CORP, REPRESENTED BY W. XXXX XXXX, (HEREINAFTER
"THE BUYER"):
CLAUSES
FIRST.- The Seller hereby conveys in favor of the Buyer ROGUE RIVER RESOURCES
CORP. shares of the company XXXXXX XXXXXXX, S.A. de C.V.
SECOND.- As payment, the Buyer shall pay to the Seller the agreed-upon amount of
US$695,000.
THIRD.- The Shares are transferred free from any encumbrance.
FOURTH.- The Seller is obliged to give notice to the Company, in order this
could record in the XXXXXX XXXXXXX, S.A. DE C.V., Shareholders' Book, the
transfer of shares referred to in the FIRST Clause, in favor of the Buyer, in
accordance with the provisions of Article 129 of the General Commercial
Corporations Act.
This contract is signed in duplicate in Denver, Colorado, USA and Vancouver,
British Columbia, Canada, on 1/25/2007.
THE SELLER
/s/ Xxxxx Xxxxxx
------------------------------------
XXXXX XXXXXX
In representation of
XXXXXXX-XXXX GOLD COMPANY, INC
THE BUYER
/s/ W. Xxxx Xxxx
------------------------------------
W. XXXX XXXX
In representation of
ROGUE RIVER RESOURCES CORP
EXHIBIT 7.3
MUTUAL RELEASE
This Mutual Release ("Release") is being executed and delivered in accordance
with Section 7.3 of the Stock Purchase Agreement dated January 25, 2007 (the
"Agreement") among Xxxxxxx-Xxxx Gold Company, Inc. ("Seller"), a Nevada
corporation ("Seller"), Rogue River Resources Corp. ("Purchaser"), and Xxxxxx
Xxxxxxx, S.A., de C.V. ("Company"). Capitalized terms used in this Release
without definition have the respective meanings given to them in the Agreement.
Seller and Company acknowledge that execution and delivery of this Release is a
necessary condition to consummation of the Agreement.
Seller and Company, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged and intending to be legally bound,
hereby agree as follows:
Seller and Company, on behalf of themselves and each of their respective
individual, joint or mutual, past, present and future representatives,
affiliates, stockholders, controlling persons, subsidiaries, successors and
assigns, ("Related Persons") hereby releases and forever discharges the other,
and each of their Related Persons (individually, a "Releasee" and collectively,
"Releasees") from any and all claims, demands, proceedings, causes of action,
orders, obligations, contracts, agreements, debts and liabilities whatsoever,
whether known or unknown, suspected or unsuspected, both at law and in equity,
which Seller or Company or any of their respective Related Persons now has, have
ever had or may hereafter have against the respective Releasees arising
contemporaneously with or prior to the Closing Date or on account of or arising
out of any matter, cause or event occurring contemporaneously with or prior to
the Closing Date, including, but not limited to, any rights to indemnification
or reimbursement from the Company, whether pursuant to their respective
Organizational Documents, contract or otherwise and whether or not relating to
claims pending on, or asserted after, the Closing Date provided, however, that
nothing contained herein shall operate to release any obligations of Buyer,
Seller or the Company that are set forth in the Agreement.
Seller and Company hereby irrevocably covenant to refrain from, directly or
indirectly, asserting any claim or demand, or commencing, instituting or causing
to be commenced, any proceeding of any kind against any Releasee, based upon any
matter purported to be released hereby.
Without in any way limiting any of the rights and remedies otherwise available
to any Releasee, Seller shall indemnify and hold harmless each Releasee from and
against all loss, liability, claim, damage (including incidental and
consequential damages) or expense (including costs of investigation and defense
and reasonable attorney's fees) whether or not involving third party claims,
arising directly or indirectly from or in connection with (i) the assertion by
or on behalf of the Seller or any of their Related Persons of any claim or other
matter purported to be released pursuant to this Release and (ii) the assertion
by any third party of any claim or demand against any Releasee which claim or
demand arises directly or indirectly from, or in connection with, any assertion
by or on behalf of the Seller or any of their Related Persons against such third
party of any claims or other matters purported to be released pursuant to this
Release.
Without in any way limiting any of the rights and remedies otherwise available
to any Releasee, the Company shall indemnify and hold harmless each Releasee
from and against all loss, liability, claim, damage (including incidental and
consequential damages) or expense (including costs of investigation and defense
and reasonable attorney's fees) whether or not involving third party claims,
arising directly or indirectly from or in connection with (i) the assertion by
or on behalf of the Company or any of their Related Persons of any claim or
other matter purported to be released pursuant to this Release and (ii) the
assertion by any third party of any claim or demand against any Releasee which
claim or demand arises directly or indirectly from, or in connection with, any
assertion by or on behalf of the Company or any of their Related Persons against
such third party of any claims or other matters purported to be released
pursuant to this Release.
If any provision of this Release is held invalid or unenforceable by any court
of competent jurisdiction, the other provisions of this Release will remain in
full force and effect. Any provision of this Release held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
This Release may not be changed except in a writing signed by the person(s)
against whose interest such change shall operate. This Release shall be governed
by and construed under the laws of the State of Colorado without regard to
principles of conflicts of law. Seller and Company further agree that Colorado
shall be the sole venue for any proceeding to enforce, interpret, or otherwise
adjudicate the rights of Seller, the Company, or any Releasee with respect to
the matters addressed by this Release.
All words used in this Release will be construed to be of such gender or number
as the circumstances require.
IN WITNESS WHEREOF, each of the undersigned have executed and delivered this
Release as of this 25th day of January, 2007.
SELLER
XXXXXX -XXXX GOLD COMPANY, INC
/s/ Xxxxx Xxxxxx
-----------------------
Name: Xxxxx Xxxxxx
Title: President and Chief Executive Officer
COMPANY
Xxxxxx Xxxxxxx, S.A. De C.V.
/s/ Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title: President
