SUPPORT AGREEMENT
THIS
AGREEMENT made as of the 5th day of December, 2007,
BETWEEN:
CHINA
MINMETALS NON-FERROUS METALS CO. LTD.,
a
company existing under the laws of the People's Republic of China with a
registered and records office located at X000, 0 Xxxxxxx Xxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxx, Xxxxx, 100044,
JIANGXI
COPPER COMPANY LIMITED,
a
company existing under the laws of the People's Republic of China with a
registered and records office located at 00 Xxxxx Xxxxxx, Xxxxx, Xxxxxxx, Xxxxx,
000000,
(together,
the "Offeror")
AND:
a
corporation existing under the laws of British Columbia, with its registered
and
records office located at 700 – 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxx, X0X 0X0
(the
"Company")
WITNESSES
THAT WHEREAS:
A. The
Offeror wishes to make a take-over bid for all of the outstanding Shares of
the
Company, other than Shares held by the Offeror and its affiliates, subject
to
the terms and conditions of this Agreement;
B. The
Company has conducted an auction process for the sale of the Company (the
"Auction Process") and the Offeror has been chosen as the
successful bidder;
C. The
Offeror has entered into a lock-up agreement with holders of approximately
42%
in aggregate of the outstanding Shares (including Shares issuable upon exercise
of the Options) on a fully-diluted basis, including all of the directors and
officers of the Company, pursuant to which, among other things, the locked-up
shareholders have agreed to deposit to the Offer all of the Shares of the
Company held or hereafter acquired by them, all on the terms and subject to
the
conditions set forth in the lock-up agreement;
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D. The
board of directors of the Company has unanimously determined that it would
be in
the best interests of the Company and its Shareholders for the board of
directors to recommend acceptance of the Offer to the Shareholders and for
the
Company to co-operate with the Offeror to support the Offer, all on the terms
and subject to the conditions contained herein; and
E. The
board of directors of the Company has unanimously determined that it would
be in
the best interests of the Company and its Shareholders for the Company to enter
into this Agreement;
NOW
THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties hereto hereby covenant
and agree as follows:
ARTICLE 1
THE
OFFER
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1.1
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The
Offer
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(a)
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Subject
to the terms and conditions of this Agreement, the Offeror agrees
to mail
no later than the Latest Mailing Date to the holders of Shares (the
"Shareholders") of the Company an offer to purchase all
of the outstanding Shares, including Shares issuable (and that, prior
to
the Expiry Time, are actually issued or are conditionally issued
pursuant
to Section 1.5) upon the exercise of Options, but excluding Shares
owned
by the Offeror and its affiliates, for consideration per Share of
$13.75
in cash (as such offer may be amended or extended from time to time
as
permitted under this Agreement, the
"Offer"). The Offer shall be subject only to
the terms and conditions set out in Schedule "B" to this Agreement,
as
such may be amended in accordance with Section 1.1(c)
hereof.
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(b)
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The
Offer will be made in all material respects in accordance with Applicable
Laws and with applicable securities legislation in jurisdictions
other
than Canada where registered Shareholders are located in the English
language and, if necessary under the Applicable Laws, the French
language,
provided that the Offeror shall not be required to make the Offer
in any
jurisdiction, other than Canada or the United States, where it would
be
illegal or, in the reasonable opinion of the Offeror, inadvisable
to do
so. The Offer will be open for acceptance until a time that is
not earlier than 9:00 p.m. (Toronto time) on the 36th day, after
the day
that the Offer is mailed to Shareholders, or such later time and
date as
may be required by Applicable Laws, subject to the right of the Offeror
in
its sole discretion to extend from time to time the period during
which
Shares may be deposited under the Offer if the conditions set forth
in Schedule "B" hereto are not satisfied on the expiry date of
the Offer as it may be extended (the time at which the Offer, as
it may be
extended, expires being referred to as the "Expiry
Time"). Subject to the satisfaction or waiver of the
conditions set forth in Schedule "B" hereto, the Offeror shall within
the
time periods required by
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Applicable
Laws take up and pay for all Shares validly tendered (and not properly
withdrawn) pursuant to the Offer as soon as practicable after the Expiry
Time. The Offeror shall use its commercially reasonable efforts to
consummate the Offer, subject only to the terms and conditions
hereof.
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(c)
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The
Offeror expressly reserves the right, in its sole discretion, to
modify or
waive any term or condition of the Offer except that, without the
prior
written consent of the Company, the Offeror shall
not:
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(i)
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reduce
the consideration per Share;
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(ii)
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change
the form of consideration payable under the Offer (other than to
add
additional consideration);
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(iii)
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otherwise
add to, amend or change any of the Offer terms or conditions in a
manner
materially adverse to the
Shareholders;
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(iv)
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increase
the Minimum Tender Condition or decrease the Minimum Tender Condition
to
less than 50.01% of the outstanding Shares on a fully-diluted basis;
or
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(v)
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decrease
the number of Shares sought under the
Offer.
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(d)
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The
Offeror agrees to provide the Company with a draft copy of the Offer
and
Circular, the letter of transmittal, the notice of guaranteed delivery
and
any other documents required to be mailed by the Offeror to Shareholders
under Applicable Laws in connection with the Offer, and any supplements
or
amendments to such documents (such documents, collectively, the
"Offer Documents") prior to the filing or mailing
thereof, on a confidential basis, and to provide the Company with
a
reasonable opportunity (to the extent possible with respect to supplements
and amendments) to review and provide comments thereon, recognizing
that
whether or not such comments are reflected in the Offer Documents
will be
determined by the Offeror, acting reasonably. The Company shall
provide to the Offeror all information pertaining to the Company
and its
Subsidiaries that is reasonably requested by the Offeror and is necessary
or desirable for the preparation of the
Circular.
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(e)
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The
obligation of the Offeror to make the Offer is conditional on the
prior
satisfaction of the following conditions, all of which conditions
are
included for the sole benefit of the Offeror and any and all of which
may
be waived by the Offeror in whole or in part in its sole discretion
(other
than the condition in paragraph 0 below,
which may be waived only with the consent of the Company) without
prejudice to any other rights it may have under this Agreement, which
conditions shall be deemed to have been satisfied or waived upon
the Offer
being made:
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(i)
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the
obligations of the Offeror hereunder shall not have been terminated
pursuant to Section 0;
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(ii)
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no
circumstance, fact, change, event or occurrence caused by a person
other
than the Offeror shall have occurred that would render it impossible
for
one or more of the conditions set out in Schedule "B" to be
satisfied;
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(iii)
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the
board of directors of the Company shall have received the advice
of its
financial advisors and the board of directors of the Company shall
have
unanimously resolved to recommend that Shareholders accept the Offer
and
shall not have withdrawn such recommendation or changed, modified
or
qualified such recommendation or taken any other action or made any
other
public statement in connection with the Offer inconsistent with the
determinations and recommendations referred to in Section
1.2(a);
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(iv)
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the
Company's financial advisor shall have delivered a written form of
the
opinion described in Section
1.2(b);
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(v)
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no
cease trade order, injunction or other prohibition at law (other
than in
China) shall exist against the Offeror making the Offer or taking
up or
paying for the Shares deposited under the
Offer;
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(vi)
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following
the date hereof, there shall not have occurred any Material Adverse
Effect
in respect of the Company;
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(vii)
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to
the extent that any covenants set forth herein may be performed or
complied with prior to the date of the Offer, the Company shall have
complied in all material respects with such
covenants;
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(viii)
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the
Offeror shall have received from all applicable Government Authorities
(A)
all waivers, rulings, consents, approvals or orders on such
terms as it, acting reasonably, deems necessary for the making
of the
Offer and the mailing of the Offer Documents to Shareholders,
and (B)
assurances satisfactory to the Offeror, acting reasonably, that
all
waivers, rulings, consent, approvals or orders for the consummation
of the
Offer will be obtained before the Expiry Time, in each case excluding
PRC
Approvals;
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(ix)
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no
later than one business day prior to the Latest Mailing Date, the
Company
shall have delivered to the depositary under the Offer, at its offices
in
Toronto, Ontario for mailing with the Offer Documents a sufficient
quantity of commercial copies of the Directors' Circular prepared
in
accordance with the terms of this Agreement;
and
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(x)
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lock-up
agreements shall have been duly executed and delivered by Shareholders
holding an aggregate of not less than 42% of the Shares (including
Shares
issuable upon exercise of the Options) on a fully-diluted basis,
including
all of the directors and officers of the Company and shall not have
been
breached or terminated.
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1.2
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Company
Approval
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(a)
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The
Company represents that its board of directors, upon the recommendation
of
a special committee of the independent members of the board of directors
and upon consultation with its advisors, has determined unanimously
that:
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(i)
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the
Offer is fair to the Shareholders and is in the best interests of
the
Company and the Shareholders;
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(ii)
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the
board of directors will recommend that Shareholders accept the Offer;
and
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(iii)
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this
Agreement is in the best interests of the Company and the
Shareholders,
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(b)
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The
Company represents that its board of directors has received an opinion
from Genuity Capital Markets, financial advisor to the Company, that
as at
the date of such opinion the Offer is fair, from a financial point
of
view, to the Shareholders (the "Fairness
Opinion").
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(c)
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The
Company represents that all of its directors and officers have advised
it
that as at the date hereof they intend to tender, or have agreed
with the
Offeror to tender, their Shares to the Offer, which intention will
be
disclosed in the Directors'
Circular.
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1.3
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Company
Co-operation
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(a)
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As
soon as practicable following the execution and delivery of this
Agreement, the Company shall cause its registrar and transfer agent
to
provide the Offeror with a list of the holders of Shares and a list
of
participants in book-based nominee registrants together with their
addresses and respective holdings of Shares, and such other information
as
the Offeror may reasonably request in connection with communicating
the
Offer to registered and beneficial owners of Shares including
non-objecting beneficial owners lists and supplemental lists, if
any, in
each case in electronic form.
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(b)
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The
Company shall prepare, approve in final form and make available for
distribution together with the mailing of the Offer Documents, in
both the
English and French languages as circumstances may require, sufficient
commercial copies of the Directors' Circular, prepared in all material
respects in accordance with all Applicable Laws. The Directors'
Circular shall reflect the determinations and recommendations referred
to
in Section 1.2(a) and shall include the Fairness
Opinion. The Company agrees to provide the Offeror with a draft
copy of any Directors' Circular prepared by the Company, from time
to
time, prior to the mailing thereof, on a confidential basis, and
to
provide the Offeror with a reasonable opportunity to review and provide
comments thereon, recognizing that whether or not such comments are
reflected in the Directors' Circular will be determined by the Company
acting reasonably. The Offeror shall provide to
the
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Company
all information pertaining to the Offeror that is reasonably requested by the
Company and is necessary or desirable for the preparation of the Directors’
Circular.
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(c)
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The
Company shall from time to time furnish the Offeror with such additional
information, including updated or additional lists of holders of
Shares
and lists of securities positions, non-objecting beneficial owners
and
other assistance as the Offeror may reasonably request in order for
the
Offeror to be able to communicate the Offer to the holders of the
Shares
and to such other persons as are entitled to receive the Offer under
the
Applicable Laws.
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1.4
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Post
Offer Covenants
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(a)
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Promptly
upon the purchase by the Offeror pursuant to the Offer of such number
of
Shares which, together with the Shares held by or on behalf of the
Offeror
and its affiliates, represents at least a majority of the outstanding
Shares (calculated on a fully-diluted basis as at the Expiry Time)
(the
"Change of Control Time"), and from time to time
thereafter, and subject to Applicable Laws, the Offeror shall be
entitled
to and shall designate (i) such number of directors of the Company
(rounded up to the next whole number of directors), as is proportionate
(determined after giving effect to the directors to be appointed
or
elected under this section) to the percentage of the outstanding
Shares
owned by the Offeror and its affiliates, or (ii) following the purchase
by
the Offeror of such number of Shares which, together with the Shares
held
by or on behalf of the Offeror and its affiliates, represents at
least 66
2/3% of the outstanding Shares, all of the directors of the
Company. The Company shall, upon request by the Offeror,
subject to Applicable Laws, promptly increase the number of directors
comprising the board of directors of the Company or use its reasonable
efforts to secure the resignations of such number of directors of
the
Company as is necessary to enable the Offeror's designees to represent
the
proportion of members of the board of directors of the Company determined
in accordance with this Section 1.4(a) and shall exercise its
reasonable efforts to cause the Offeror's designees to be so elected
or
appointed.
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(b)
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The
Offeror shall, if possible to do so under, and subject to compliance
with
all Applicable Laws, upon Shares being taken up and paid for under
the
Offer, utilize the compulsory acquisition provisions of section 300
of the
Business Corporations Act (British Columbia) in respect of the
Shares not tendered under the Offer. If the Offeror is unable
to use such compulsory acquisition provisions, the Offeror shall
use all
commercially reasonable efforts to acquire all Shares not acquired
in the
Offer as soon as practicable after completion of the Offer by way
of a
statutory arrangement, amalgamation, merger or other combination
(such
transaction or compulsory acquisition hereinafter referred to as
a
"Second-Step Transaction") of the Company with the
Offeror or an affiliate of the Offeror, if possible to do so under,
and
subject to compliance with, all Applicable Laws. The Offeror
agrees that if any Second-Step Transaction is effected it will provide
that the holders of any Shares, other than those held by the Offeror
or
any of its
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affiliates,
shall be offered consideration per Share at least equal to the amount paid
per
Share under the Offer. Nothing herein shall be construed to prevent
the Offeror from acquiring, directly or indirectly, additional Shares in the
open market, in privately negotiated transactions, in another take-over bid,
tender offer or exchange offer, or otherwise in accordance with the Applicable
Laws, following taking up and paying for Shares under the Offer.
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(c)
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The
Offeror acknowledges and agrees that the Company will, and after
the
Effective Time the Offeror will cause the Company and any successor
of the
Company to, honour and comply with the terms of all existing employment,
consulting and severance agreements to which the Company is subject
or by
which it is bound as set out in the Data Room Information (the
"Employment Arrangements"), as the same may be amended or
modified as permitted hereunder.
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(d)
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The
Company shall cause the Conflicts Agreement to terminate effective
as of
the Change of Control Time.
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1.5
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Outstanding
Stock Options
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(a)
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The
Company agrees to give notice promptly following the mailing of the
Offer
Documents to all persons holding Options of (i) the vesting of all
unvested Options and (ii) the termination of all non-exercised Options
as
of 4:00 p.m. (Vancouver time) on the 35th day after the Offer is
mailed,
in each case conditional upon the Offeror being bound to take up
and pay
for Shares under the Offer. The Company further agrees to use
its commercially reasonable efforts to
either:
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(i)
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facilitate
all persons holding Options to exercise all of their Options and
tender
all Shares issued in connection therewith under the Offer, conditional
upon the Offeror being bound to take up and pay for Shares under
the
Offer, or
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(ii)
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amend
or modify the Stock Option Plan (if required) to provide for the
cashless
exercise or termination of vested and non-exercised Options in lieu
of the
exercise thereof in exchange for a cash payment equal to the difference
between the Offer price and the exercise price of the applicable
Option,
conditional upon the Offeror being bound to take up and pay for Shares
under the Offer.
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(b)
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The
Offeror covenants and agrees to use its commercially reasonable efforts
to
facilitate all persons holding Options pursuant to the Stock Option
Plan
to exercise all of their Options and tender all Shares issued in
connection therewith under the Offer, conditional upon the Offeror
being
bound to take up and pay for Shares under the
Offer.
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1.6
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Indemnification
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(a)
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The
Offeror covenants and agrees that after the Effective Time it shall
ensure
that (i) the articles of the Company, and the constating documents
of any
successor to the Company, and (ii) the constating documents of the
Subsidiaries of the Company (or any successor to any such Subsidiaries),
shall contain provisions with respect to indemnification now set
forth in
the articles of the Company and the constating documents of the
Subsidiaries of the Company (or equivalent provisions), such that
all
rights to indemnification existing in favour of the present and former
directors and officers of the Company or of any of the Subsidiaries
of the
Company and present and former directors and officers of the Company
or of
any of the Subsidiaries of the Company serving or who served at the
request of the Company or any Subsidiaries of the Company as a director,
officer, employee, agent or representative of another corporation,
partnership joint venture, trust, employee benefit plan or other
entity or
enterprise in which the Company has a direct or indirect ownership
interest or beneficial interest (each such present or former director
or
officer of the Company or of any Subsidiaries of the Company being
herein
referred to as an "Indemnified Party" and such persons
collectively being referred to as the "Indemnified
Parties") as provided in the articles of the Company or
constating documents of any of the Subsidiaries of the Company, or
equivalent rights, shall survive and continue in full force and effect
and
without modification, with respect to actions or omissions of the
Indemnified Parties occurring prior to the Effective Time, for a
period of
not less than the limitation period applicable under the statutes
of
limitation applicable to such
matters.
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(b)
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The
Company and Offeror agree that all rights to indemnification existing
in
favour of the Indemnified Parties as provided by contracts or agreements
between the Indemnified Parties and the Company or its Subsidiaries
and
identified in the Data Room Information shall survive and shall continue
in full force and effect and without modification, and the Offeror
shall
cause the Company, and any successor to the Company, and its Subsidiaries
(including any successors thereto), to honour such rights of
indemnification and indemnify the Indemnified Parties pursuant thereto,
with respect to acts or omissions of the Indemnified Parties occurring
prior to the Effective Time, for a period of not less than the limitation
period applicable under the statutes of limitation applicable to
such
matters.
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(c)
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The
Offeror acknowledges and agrees that, notwithstanding any other provision
of this Agreement, the Company will, prior to the Effective Time,
secure
officers' and directors' liability insurance covering the Indemnified
Parties on a six year "trailing" or "run-off" basis, to the extent
available on reasonable commercial terms and permitted by law and
the
Offeror shall, or cause the Company and any successor to the Company
(including any surviving corporation) to, continue in effect such
director
and officer liability insurance for the benefit of the Indemnified
Parties.
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(d)
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The
provisions of this Section 1.6 are (i) intended to be for the benefit
of, and shall be enforceable by, each Indemnified Party, his or her
heirs,
executors,
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administrators
and other legal representatives and (ii) are in addition to, and not in
substitution for, any other rights to indemnification or contribution that
any
such person may have by contract or otherwise, and such rights shall be held
by
the Company, and any successor to the Company, in trust for such persons,
provided however that no approval of any beneficiary of such trust shall be
required in connection with an amendment or variation of this Section 1.6
prior to the Effective Time.
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1.7
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Pre-Acquisition
Reorganization
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Upon
request by the Offeror, the Company shall (i) use its commercially reasonable
efforts to effect such reorganizations of its business, operations and assets
or
such other transactions as the Offeror may request, acting reasonably (each
a
"Pre-Acquisition Reorganization") and (ii) co-operate with the
Offeror and its advisors in order to determine the nature of any Pre-Acquisition
Reorganization that might be undertaken and the manner in which they might
most
effectively be undertaken; provided that any Pre-Acquisition Reorganization:
(A)
does not result in any breach by the Company of any contract of the Company
or
any Law then in effect; (B) is not prejudicial to the Company or the
Shareholders in any material respect; (C) does not result in any breach by
the
Company of any of its covenants, representations or warranties under this
Agreement (unless the Offeror has waived such breach in respect of such
request); and (D) does not result in any breach by the Company of its constating
documents. The Offeror shall provide written notice to the Company of
any proposed Pre-Acquisition Reorganization at least ten business days prior
to
the Expiry Time. Upon receipt of such notice, the Offeror and the
Company shall co-operate and use their respective commercially reasonable
efforts to prepare prior to the Expiry Time all documentation necessary or
advisable and do all such other acts and things as are necessary or advisable
to
give effect to such Pre-Acquisition Reorganizations. The Company
shall use its commercially reasonable efforts to effect any such Pre-Acquisition
Reorganization immediately prior to any take-up by the Offeror of Shares
deposited under the Offer. In the event that the Offeror does not
take up and pay for the Shares deposited under the Offer, the Offeror will
reimburse the Company for all direct fees and expenses of the Company incurred
in connection with the Pre-Acquisition Reorganization, if any.
ARTICLE 2
REPRESENTATIONS
AND WARRANTIES
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2.1
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Representations
and Warranties of the
Offeror
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Each
Offeror hereby represents and warrants to the Company as to those matters set
forth in Schedule "C" hereto and acknowledges that the Company is
relying upon those representations and warranties in entering into this
Agreement.
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2.2
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Representations
and Warranties of the
Company
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The
Company hereby represents and warrants to the Offeror as to those matters set
forth in Schedule "D" hereto and acknowledges that the Offeror is relying upon
those representations and warranties in entering into this
Agreement.
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2.3
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Investigation
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No
investigation by or on behalf of any party prior to the date of this Agreement
shall mitigate, diminish or affect the representations and warranties made
by
any other party pursuant to this Agreement.
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2.4
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Knowledge
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Any
reference in this Agreement to the "knowledge" of the Company shall mean to
the
best of the actual knowledge, information and belief of any of Xxxx Xxxxx,
Xxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxx Xxxxxxxx and Xxxxxx Xxx and,
unless such knowledge, information and belief would lead a reasonable individual
to make further enquiries, it shall not be necessary for such persons to enquire
of the other employees, agents or representatives of the Company generally
or of
any other person.
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2.5
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Company
Disclosure Letter
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Any
information required to be disclosed in writing to the Offeror under this
Agreement on or prior to the date hereof shall be provided or identified in
the
Data Room Information or the Company Disclosure Letter.
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2.6
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Survival
of Representations and
Warranties
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The
representations and warranties of the Company and the Offeror contained in
this
Agreement shall not survive the completion of the Second-Step Transaction,
and
shall expire and be terminated and extinguished upon the consummation of the
Second-Step Transaction.
ARTICLE 3
CONDUCT
OF BUSINESS
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3.1
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Negative
Covenants
|
The
Company covenants and agrees that, prior to the earlier of (i) the time (the
"Effective Time") of the appointment or election to the board
of directors of the Company of the persons designated by the Offeror who
represent at least a majority of the board of directors of the Company and
(ii)
the time this Agreement is terminated, unless the Offeror shall otherwise agree
in writing or as otherwise expressly contemplated or permitted by this Agreement
(including Section 3.2 and Section 3.3), the Company shall not, and shall not
permit any of its Subsidiaries to:
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(a)
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alter
the memorandum or articles of the Company or alter the constating
documents of its Subsidiaries or the terms of any of its or their
outstanding securities;
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(b)
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resolve
to reduce its share capital in any way or repurchase, redeem or otherwise
acquire any of its Shares or any securities of its Subsidiaries (other
than pursuant to the termination of Options currently outstanding
and
which are identified on a
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schedule
contained in the Data Room Information in accordance with the terms and
conditions of the Stock Option Plan);
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(c)
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except
as identified in paragraph (b) of Schedule "D", make an allotment
of, or
issue or grant an option, warrant, call, conversion or exchange privilege
or right of any kind to subscribe for, any Shares or any securities
of its
Subsidiaries, including any Option, Bonus Share or the right to acquire
Shares or securities of its
Subsidiaries;
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(d)
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except
in the ordinary course of business consistent with past practice,
or as
set out in the budget of the Company for December 2007 to August
31, 2008
provided to the Offeror on the date hereof which has been disclosed
in the
Data Room Information (the "Budget") or the
Pre-Feasibility Study, make any capital expenditure or purchase or
otherwise acquire or sell, transfer, lease, option, exchange or otherwise
dispose of any interest in or right to any asset or property having
a
value in excess of $100,000 for any single asset or property or $200,000
in the aggregate for the Company and its Subsidiaries taken as a
whole for
all such assets or properties (other than transactions between the
wholly-owned Subsidiaries of the Company and the Company, which
transactions in the aggregate shall have a value of no more than
$200,000);
|
|
|
(e)
|
except
in the ordinary course of business consistent with past practice
or as
disclosed in the Budget or the Pre-Feasibility Study, enter into,
modify,
amend or terminate any material agreement or licence of the Company
or any
Subsidiaries, including any Material
Contract;
|
|
|
(f)
|
abandon
or fail to diligently pursue (i) any material application for any
licence,
permit, order, authorization, consent, approval or registration,
or (ii)
any application for any material licence, permit, order, authorization,
consent, approval or registration necessary for the Company to proceed
with budgeted operations for the Xxxxxx
project;
|
|
|
(g)
|
except
in the ordinary course of business consistent with past practice,
except
for trade payables, incur or commit to incur or assume any indebtedness
for borrowed money or issue any debt securities, or guarantee, endorse
or
otherwise become liable or responsible for the liabilities, indemnities
or
obligations of any other person, or make any loans or advances, in
the
aggregate in excess of $200,000;
|
|
|
(h)
|
except
as disclosed in the Budget, pay, discharge or satisfy any material
claims
or liabilities except such as have been reserved against in the Company's
financial statements delivered to the Offeror, relinquish any material
contractual rights or enter into any interest rate, currency or commodity
swaps, xxxxxx or other similar financial derivative
instruments;
|
|
|
(i)
|
mortgage,
pledge, lease, encumber or charge any Concession or, where the value
of
the property or assets is in excess of $200,000 in the aggregate,
any
other property or assets;
|
-
11 -
|
|
(j)
|
amalgamate
or merge with any other person or resolve that the Company or any
Subsidiary be wound up;
|
|
|
(k)
|
without
limiting the covenant in Section 3.1(d), acquire or agree to acquire
any
person, corporation, partnership, joint venture or other business
organization or division thereof or agree to acquire any material
assets
thereof;
|
|
|
(l)
|
approve
or adopt a plan of liquidation or dissolution of the Company or its
Subsidiaries or appoint or permit the appointment of a liquidator,
receiver or trustee in bankruptcy for the Company or its Subsidiaries
or
in respect of the assets of the Company or its
Subsidiaries;
|
|
|
(m)
|
permit
the making of an order by a court for the winding-up or dissolution
of the
Company or its Subsidiaries;
|
|
|
(n)
|
declare,
set aside or pay any dividends, including for the purpose of effecting
a
share subdivision, or make, declare or set aside any payment or
distribution (in cash, stock, property or otherwise) with respect
to its
Shares;
|
|
|
(o)
|
establish,
adopt, enter into, make or amend any collective bargaining, bonus,
profit
sharing, compensation, stock option, stock ownership, stock compensation,
pension, retirement, deferred compensation, employment, termination,
severance, change of control, insurance or other plan, agreement,
trust,
fund, policy or arrangement for the benefit of any director, officer
or
employee of the Company or its Subsidiaries or make any award or
payment
(whether by way of bonus, salary increase, stock option, pension
benefit,
profit sharing, retirement allowance, deferred compensation, incentive
compensation, severance or termination pay or any other form of
compensation or profit sharing) to any director, officer or employee
of
the Company or its Subsidiaries other than pursuant to the Employment
Arrangements, pursuant to Section 1.5 or pursuant to bonuses payable
to employees of the Company or its Subsidiaries in respect of calendar
2007 not in excess of $250,000 in the aggregate and, notwithstanding
the
foregoing, neither the Company nor its Subsidiaries shall make or
amend,
or become obligated to make or amend, any discretionary payment to
or for
the benefit of any director (other than payments approved by the
board of
directors of the Company to members of the special committee formed
to
consider the Offer and identified in a schedule contained in the
Data Room
Information), officer or employee of the Company or its Subsidiaries
without the prior written consent of the Offeror; provided, however,
that
the Company and its Subsidiaries shall not be restricted from making
those
payments described in Sections 1.4(c) and
1.5.
|
|
|
(p)
|
implement
any change in the present business, affairs, capitalization, dividend
policy or financial condition of the Company and its Subsidiaries,
taken
as a whole, or implement any other change that could reasonably be
expected to have a Material Adverse Effect in respect of the
Company;
|
-
12 -
|
|
(q)
|
enter
into any agreement of any nature, whether or not in the ordinary
course of
business, (i) with a term of longer than 30 days pursuant to which
the
Company or its Subsidiaries is or may become obligated to make payments
or
incur liabilities, in the aggregate over the term of such agreement,
in
excess of $200,000, other than agreements related to matters identified
in
the Budget or the Pre-Feasibility Study or (ii) that relates to long-term
commodity agreements, off-take agreements or similar agreements concerning
the physical delivery of
commodities;
|
|
|
(r)
|
commence,
settle, abandon or assign any rights to or any interest in any claim,
litigation, action, suit, cause of action or other proceeding by
or before
any domestic or foreign arbitrator or Government
Authority;
|
|
|
(s)
|
except
as disclosed in the Company Disclosure letter, engage in any transaction
with any related parties other than with wholly-owned Subsidiaries
in the
ordinary course of business consistent with past
practice;
|
|
|
(t)
|
except
in accordance with Section 3.3 enter into any transaction or perform
any act that might interfere with, delay or be inconsistent with
the
successful acquisition of Shares by the Offeror under the Offer or
the
completion of any other transaction contemplated hereby or which
would
render, or which may reasonably be expected to render, untrue or
inaccurate (without giving effect to, applying or taking into
consideration any materiality or Material Adverse Effect qualification
already contained within such representation or warranty) in any
material
respect any of the Company's representations and warranties set forth
in
this Agreement;
|
|
|
(u)
|
enter
into, or resolve to enter into, any agreement: (i) which has the
effect of
creating a joint venture or similar relationship between the Company
or
any of its Subsidiaries and another person; or (ii) pursuant to which
the
Company or any of its Subsidiaries would acquire an equity or voting
interest in another person or an earn-in or other right to acquire
an
equity or voting interest in another
person;
|
|
|
(v)
|
adopt,
or resolve to adopt, any shareholder rights plan other than a plan
that
does not apply to the Offer or the Offeror;
nor
|
|
|
(w)
|
authorize,
announce publicly an intention to, enter into any formal or informal
agreement relating to, or otherwise make any commitment to do any
of the
things prohibited by any of the foregoing
subsections.
|
|
3.2
|
Positive
Covenants
|
The
Company covenants and agrees with the Offeror that, except as expressly
contemplated or permitted by this Agreement or to the extent the Offeror has
otherwise consented in writing, prior to the earlier of the Effective Time
and
the time this Agreement is terminated, the Company shall, and shall cause its
Subsidiaries, where applicable, to:
|
|
(a)
|
carry
on its and their business only in, and not take any action except
in, the
ordinary course of business consistent with past
practice;
|
-
13 -
|
|
(b)
|
make
all capital expenditures in accordance with all commitments and contracts
with third parties in existence at the date hereof as disclosed in
the
Data Room Information or pursuant to the
Budget;
|
|
|
(c)
|
purchase
surface rights (i) over or in the vicinity of the mineral properties
in
which the Company or any of its Subsidiaries holds an interest, or
(ii)
for infrastructure for use on, or related to the exploration or
development of, such properties, that in each case are necessary
or
advisable in the reasonable opinion of management of the Company
for the
purposes of exploration, development or operation of the Xxxxxx project
in
a manner and on a timeline consistent with the Company's Disclosure
Documents;
|
|
|
(d)
|
continue
work on the feasibility study in respect of the Xxxxxx project in
a manner
and on a timeline consistent with the Company's Disclosure Documents
and
the Pre-Feasibility Study and in accordance with the
Budget;
|
|
|
(e)
|
use
its and their commercially reasonable efforts to preserve intact
its and
their respective real property interests, Concessions, Lands and
other
assets, mineral or proprietary rights or interests in good standing
and
maintain its current community relations
policy;
|
|
|
(f)
|
confer
on a regular basis with the Offeror with respect to operational matters
and other matters identified in this Section 3.2 and promptly advise
the Offeror, orally and in writing of (i) any material change (within
the
meaning of the Securities Act (British Columbia)) in relation to
the Company or any of its Subsidiaries; (ii) any governmental or
third
party complaints, investigations or hearings (or communications indicating
that the same may be contemplated); and (iii) the occurrence, or
failure
to occur, of any event or state of facts which occurrence or failure
would
or would be reasonably likely to (x) cause any of the representations
or
warranties of the Company contained herein to be untrue or inaccurate
(without giving effect to, applying or taking into consideration
any
materiality or Material Adverse Effect qualification already contained
within such representation or warranty) in any material respect;
or (y)
result in the failure in any material respect of the Company to comply
with or satisfy any covenant or condition to be complied with or
satisfied
pursuant to this Agreement prior to the Effective
Time;
|
|
|
(g)
|
use
its commercially reasonable efforts to maintain the current insurance
(or
re-insurance) policies of it and its Subsidiaries and not allow the
same
to be cancelled or terminated or any other coverage thereunder to
lapse,
unless simultaneously with such termination, cancellation or lapse,
replacement policies underwritten by insurance and re-insurance companies
of nationally recognized standing providing coverage equal to or
greater
than the coverage under the cancelled, terminated or lapsed policies
for
substantially similar premiums are in full force and
effect;
|
|
|
(h)
|
use
its and their commercially reasonable efforts to preserve intact
their
respective business organizations and goodwill, to keep available
the
services of their
|
-
14 -
respective
officers and employees as a group and to maintain satisfactory relationships
with suppliers, distributors, customers and others with whom they have business
relationships and inform the Offeror orally and in writing if any officer
submits a resignation;
|
|
(i)
|
subject
to the provisions of Section 3.4(b), furnish the Offeror with a copy
of
all information and reports (including financial statements, officer's
certificates, operating statements, reports of operations and operating
plans) prepared by the Company and provided to directors and management
of
the Company after the date hereof;
|
|
|
(j)
|
duly
and timely file, and cause its Subsidiaries to duly and timely file,
all
material forms, reports, schedules, statements and other documents
required to be filed pursuant to any applicable Laws in accordance
with
timelines prescribed under applicable Laws and obtain and renew all
material licences, permits, approvals, consents, certificates,
registrations and similar authorizations required under applicable
Laws
and International Standards with respect to ongoing and proposed
operations;
|
|
|
(k)
|
(i)
timely withhold, collect, remit and pay all Taxes which are to be
withheld, collected, remitted or paid by it to the extent due and
payable
except for any Taxes contested in good faith pursuant to applicable
Laws;
and (ii) not make or rescind any material express or deemed election
relating to Taxes; and
|
|
|
(l)
|
take
all commercially reasonable actions prior to the Change of Control
Time
required to cause the securities of the Company's Subsidiaries held
by
Xxxxxx Xxxxxx to be transferred to a nominee of the Offeror effective
as
of the Change of Control Time or as soon thereafter as is practicable
in
the circumstances.
|
|
3.3
|
Non-Solicitation
|
|
|
(a)
|
On
and after the date hereof, except as expressly contemplated by this
Agreement, the Company shall not, and shall cause its Subsidiaries
not to,
directly or indirectly, through any officer, director, employee,
investment banker, legal advisor or other advisor, consultant,
representative or agent (collectively, the
"Representatives") of the Company or its
Subsidiaries:
|
|
|
(i)
|
solicit,
initiate, or knowingly encourage (including by way of furnishing
any
non-public information, permitting any visit to any facilities or
properties of the Company or any of its Subsidiaries, or entering
into any
form of agreement, arrangement or understanding) any inquiries, proposals
or offers (or the submission or initiation of any of the foregoing)
regarding any:
|
|
|
(A)
|
merger,
amalgamation, reorganization, consolidation, arrangement, business
combination, recapitalization, take-over bid, dividend, distribution,
Share re-purchase, liquidation, dissolution or
winding-up;
|
-
15 -
|
|
(B)
|
strategic
alliance, joint venture, earn-in right or sale involving all or a
material
portion of the assets of the Company or its Subsidiaries on a consolidated
basis (or any lease, long term supply or off-take agreement or other
transaction having the same economic effect as a sale of such
assets);
|
|
|
(C)
|
subject
to paragraph (b)(iv) of Schedule "D", issue or sale of Shares or
rights or
interests therein or thereto involving the Company or its Subsidiaries
from any person other than the
Offeror;
|
|
|
(D)
|
similar
transactions involving the Company or its Subsidiaries from any person
other than the Offeror or any Representatives of Offeror;
or
|
|
|
(E)
|
inquiry,
proposal, offer or public announcement of an intention to do any
of the
foregoing,
|
(any
of the foregoing inquiries, proposals, offers or public announcements in (A)
to
(E) being referred to herein as an "Acquisition
Proposal");
|
|
(ii)
|
engage
in any negotiations concerning, or provide any non-public information
to,
or have any discussions with or otherwise cooperate with, any person
relating to an Acquisition Proposal, or otherwise knowingly facilitate
or
knowingly encourage any effort or attempt to make or implement an
Acquisition Proposal;
|
|
|
(iii)
|
withdraw
the board of directors' recommendation of the Offer or change, modify
or
qualify such recommendation in a manner adverse to the
Offeror;
|
|
|
(iv)
|
approve
or recommend any Acquisition Proposal or enter into any agreement
related
to any Acquisition Proposal; or
|
|
|
(v)
|
propose
publicly to do any of the foregoing in (i) to
(iv),
|
provided
that, subject to Section 4.5, nothing contained in this Section 3.3(a) or
other provisions of this Agreement shall prevent the Company from (x) engaging
in discussions or negotiations with, or otherwise responding to, any person,
or
any Representative of any person, that has made a Superior Proposal and which
proposal continues to be a Superior Proposal or (y) provided the Company first
terminates this Agreement in accordance with Section 6.1(g), approving or
recommending to the Shareholders a Superior Proposal or entering into any
agreement related to a Superior Proposal. Nothing in this
Section 3.3 will preclude the Company or its officers or board of directors
from responding (but not recommending or knowingly encouraging), (i) within
the
time and in the manner required by Applicable Laws, to any take-over bid or
tender or exchange offer made for the Shares or other securities of the Company,
and (ii) to any
-
16 -
person
making an unsolicited Acquisition Proposal that such Acquisition Proposal does
not constitute a Superior Proposal when the Company’s board of directors has so
determined.
|
|
(b)
|
The
Company shall immediately cease, cause its Representatives to cease
and
cause to be terminated any existing solicitations, discussions or
negotiations with any parties (other than the Offeror or any
Representative of the Offeror) with respect to any Acquisition Proposal
or
any potential Acquisition Proposal. The Company shall
immediately cease to provide any party, other than the Offeror and
its
Representatives, with access to non-public information concerning
the
Company or its Subsidiaries with respect to any Acquisition Proposal
or
potential Acquisition Proposal, and discontinue access to any data
or
information rooms (virtual or otherwise) to anyone other than the
Offeror
and its Representatives. Within five business days from the date
hereof,
the Company shall request the return or destruction of all information
provided to any third parties who have obtained such information
in
relation to an Acquisition Proposal or a potential Acquisition Proposal
and shall use commercially reasonable efforts to ensure that such
requests
are honoured in accordance with the terms of any applicable
confidentiality agreements. Subject to Section 3.3(d)
below, the Company shall not allow or permit access to any data or
information rooms (virtual or otherwise) regarding the Company, its
Subsidiaries or any of their respective properties or assets, except
to
the Offeror and its Representatives. Notwithstanding anything
contained in this Agreement (other than the waiver in Section 3.4(d)),
the
Company agrees not to waive, release any third party from, provide
any
consent in respect of or fail to enforce on a timely basis any
confidentiality or standstill agreement to which the Company and
such
third party are a party (except to allow any party who has not
participated in the Company's Auction Process to make an unsolicited
bona fide Acquisition Proposal in writing to the board of
directors of the Company), and represents that it has not waived
any
existing standstill provisions contained in a confidentiality agreement
or
otherwise for any person that has participated in the Auction
Process.
|
|
|
(c)
|
The
Company shall notify the Offeror promptly (but in no event later
than 24
hours) after receipt by the Company, or any of its Representatives,
of any
Acquisition Proposal, any request for discussions or negotiations
relating
to an Acquisition Proposal, or any request for non-public information
relating to the Company or its Subsidiaries in connection with an
Acquisition Proposal or for access to the properties, books or records
of
the Company or any Subsidiaries thereof or for a list of Shareholders
by
any person. Such notice to the Offeror shall be made at first
orally and then in writing, and shall indicate the identity of the
person
making such proposal, inquiry, request or contact, all material terms
thereof and a copy of all written correspondence relating to the
foregoing, and such other details of the proposal, inquiry or contact
as
the Offeror may reasonably request and which is in the possession
of, or
under the control of, the Company or its Representatives. The
Company shall keep the Offeror promptly and fully informed of the
status,
including any change to the material terms, of any such proposal,
inquiry,
offer or request, or any amendment to the
foregoing,
|
-
17 -
and
will respond promptly to all reasonable inquiries by the Offeror with respect
thereto.
|
|
(d)
|
In
the event that the board of directors of the Company receives a request
for non-public information from a party that proposes to make a bona
fide
Acquisition Proposal to the board of directors of the Company that
did not
result from a breach of this Agreement and that the board of directors
of
the Company in good faith determines is reasonably capable of being
completed and would, if consummated in accordance with its terms,
result
in a Superior Proposal and the board of directors of the Company,
after
consultation with its outside legal advisors, determines in good
faith
that the failure to provide such party with access to such information
would be a breach of its fiduciary duties, then, and only in such
case,
the Company may, subject to the execution of a confidentiality and
standstill agreement which is no less favourable to the Company and
no
more favourable to the counterparty than the Confidentiality Agreement,
provide such party with access to any information regarding the Company
and its Subsidiaries. The Company shall provide the Offeror
immediately with a list of, and in the case of information that was
not
previously made available to the Offeror, copies of or access to
any
information that is being provided to such
person.
|
|
|
(e)
|
The
Company shall ensure that the Representatives of the Company and
its
Subsidiaries are aware of the provisions of this Section 3.3, and
the
Company shall be responsible for any breach of this Section 3.3 by
any of
such Representatives.
|
|
3.4
|
Access
to Information
|
|
|
(a)
|
From
the date hereof until the earlier of the Expiry Time and the time
this
Agreement is terminated, and subject to the existing confidentiality
agreement between the Company and the Offeror dated March 16, 2007,
as
amended on October 1 and October 3, 2007 (the "Confidentiality
Agreement"), the Company shall (and shall cause its Subsidiaries
to) afford the Offeror and its Representatives access to information,
confidential or otherwise, with respect to the Company and its
Subsidiaries and their respective businesses, assets and properties,
including books, contracts and records as well as access to management
personnel and employees and access to the properties of the Company
and
its Subsidiaries, subject to compliance with applicable Laws and
to the
Company obtaining any consents or waivers with respect to access
required
under any applicable agreements with third parties in effect as at
the
date of this Agreement, subject to such access not interfering with
the
ordinary conduct of the business of the Company and its
Subsidiaries. The Offeror and its Representatives will not
contact any Government Authority (other than Government Authorities
with
registries or information available by request from members of the
public), any employees of the Company or its Subsidiaries, any supplier
of
the Company or its Subsidiaries, or any third party who is a party
to any
agreement, arrangement or understanding under which the Company or
its
Subsidiaries (or any of their assets) is bound or affected, without
the
prior written
|
-
18 -
consent
of the Company (not to be unreasonably withheld), and the Company shall (and
shall cause its Subsidiaries to) furnish promptly to the Offeror all information
concerning its business, assets, properties and personnel as the Offeror may
reasonably request.
|
|
(b)
|
Notwithstanding
the foregoing, except as expressly provided for herein, the Company
shall
not be obligated to make available to the Offeror any of the Company's
management or board of directors' materials relating to the assessment
or
evaluation of the transactions contemplated hereby or any alternative
transaction (including any Acquisition Proposal proposed by any other
person) nor any information supplied by any of its Representatives
in
connection therewith or any confidentiality agreement made between
the
Company and any other person prior to the date hereof in respect
of any
alternative transaction.
|
|
|
(c)
|
Without
limiting the generality of the provisions of the Confidentiality
Agreement
and subject to Section 3.4(d), the parties acknowledge that all
information provided under Section 2.5, Section 3.4(a) or otherwise
pursuant to this Agreement or in connection with the transactions
contemplated hereby, is subject to the Confidentiality Agreement,
which
shall remain in full force and effect, notwithstanding any other
provision
of this Agreement or any termination of this Agreement. If any
provision of this Agreement conflicts or is inconsistent with any
provision of the Confidentiality Agreement, the provisions of this
Agreement will supersede those of the Confidentiality Agreement but
only
to the extent of the conflict or inconsistency and all other provisions
of
the Confidentiality Agreement will remain in full force and
effect.
|
|
|
(d)
|
The
Company hereby waives the prohibitions in Section 2(g) (as amended),
Section 2(i) and Section 2(k) of the Confidentiality Agreement in
respect
of: (i) the transactions contemplated hereby; (ii) market purchases
of Shares during the Offer not in excess of 5% of the total outstanding
Shares, in accordance with Applicable Laws; (iii) discussions undertaken
with any Government Authority in respect of the transactions contemplated
hereby, which shall be undertaken in compliance with the review and
concurrence obligations set out in Section 5.2(a); (iv) discussions,
together with the Company, with third parties in respect of the possible
disposition of assets of the Company or its Subsidiaries following
or
contemporaneous with the completion of any of the transactions
contemplated hereby; or (v) communications regarding the entering
into of any support, lock-up or similar agreement with any Shareholders
in
respect of the transactions contemplated
hereby.
|
|
3.5
|
Structure
of Transaction
|
|
|
(a)
|
The
Company shall use reasonable commercial efforts to co-operate with
the
Offeror in structuring the acquisition by the Offeror of the
Company in a tax efficient manner provided that no such co-operation
shall
be required where such structuring shall have an adverse effect on
the
Company or cause any breach of or default under this Agreement by
the
Company or any other agreement,
|
-
19 -
arrangement
or understanding under which the Company or its Subsidiaries (or any of their
assets) is bound or affected.
|
|
(b)
|
In
addition, in the event that (i) the Offeror concludes, acting reasonably,
that it is necessary or desirable to proceed with another form of
transaction (such as a plan of arrangement or amalgamation) whereby
the
Offeror or any of its affiliates would effectively acquire all of
the
Shares within approximately the same time periods and on economic
terms
and other terms and conditions (including, without limitation, tax
treatment) and having consequences to the Company and the Shareholders
that are equivalent to or better than those contemplated by this
Agreement
(an "Alternative Transaction"), and (ii) the Company
concludes, acting reasonably, that no action or actions required
to be
taken by it or by its Subsidiaries in connection with such Alternative
Transaction (and not required to be taken in connection with the
Offer)
prior to the consummation thereof would result in a Material Adverse
Effect in respect of the Company, the Company agrees to support the
completion of such Alternative Transaction in the same manner as
the Offer
and shall otherwise fulfil its covenants contained in this Agreement
in
respect of such Alternative
Transaction.
|
|
|
(c)
|
The
Offeror agrees to reimburse the Company for all direct fees and expenses
of the Company incurred in connection with the completion of an
Alternative Transaction as contemplated by Section 3.5(b). If
the Offeror determines to engage in an Alternative
Transaction:
|
|
|
(i)
|
prior
to mailing the Offer to Shareholders, all references in Section 6.1(d)
to
"the date the Offer is mailed” shall be deemed to be references to "the
date the information circular related to the Alternative Transaction
is
mailed"; and
|
|
|
(ii)
|
the
reference to "the Offeror has not mailed the Offer" in Section 6.1(h)
shall be deemed to be a reference to "the Offeror has not provided
all
information reasonably requested by the Company to permit the Company
to
prepare the information circular related to the Alternative Transaction
in
accordance with Applicable Laws and mail such information
circular".
|
ARTICLE 4
NON-COMPLETION
PAYMENTS AND OTHER ARRANGEMENTS
|
4.1
|
Non-Completion
Payment
|
If
at any time after the execution of this Agreement:
|
|
(a)
|
the
board of directors of the Company (i) withdraws, qualifies, changes
or modifies in a manner adverse to the Offeror any of its recommendations
or determinations referred to in Section 0,
(ii) recommends or approves or publicly proposes to recommend or
approve an Acquisition Proposal, or causes the Company to enter into
any
letter of intent, agreement or undertaking related to any Acquisition
Proposal, other than a confidentiality and standstill
agreement
|
-
20 -
permitted
by Section 3.3(d) or resolves to do any of the foregoing,
or (iii) fails to reaffirm its recommendation of the Offer in accordance with
Section 4.6;
|
|
(b)
|
the
Offer is not completed in accordance with the conditions set out
in Schedule "B" as a result of the Company being in material
default of any of its covenants or obligations contained in Section
3.3;
|
|
|
(c)
|
the
Company terminates this Agreement pursuant to Section 6.1(g);
or
|
|
|
(d)
|
the
Minimum Tender Condition in paragraph (a) of Schedule "B" has not
been
satisfied or waived at the Expiry Time, an Acquisition Proposal has
been
publicly announced by any person prior to the Expiry Time and not
withdrawn at least five business days prior to the Expiry Time,
and:
|
|
|
(i)
|
any
Acquisition Proposal is consummated prior to the expiration of 12
months
following the termination of this Agreement;
or
|
|
|
(ii)
|
the
board of directors of the Company approves the entering into of a
definitive agreement with respect to any Acquisition Proposal prior
to the
expiration of 12 months following the termination of this
Agreement;
|
(each
of the above being a "Non-Completion Event") then in any such
case the Company shall pay to the Offeror or an affiliate of the Offeror
identified to the Company by the Offeror $15,900,000 (the
"Non-Completion Payment") in immediately available
funds. Such payment will be paid by the Company: (x) in the case of a
Non-Completion Event specified in Section 4.1(a) or (b) on the fifth
business day following the occurrence of such Non-Completion Event; (y) in
the
case of a Non-Completion Event specified in Section 4.1(c), prior to or
concurrently with the termination of this Agreement by the Company; or (z)
in
the case of a Non-Completion Event specified in Section 4.1(d), concurrently
with or immediately following the approval by the board of directors of the
Company or consummation of the transaction referred to therein. The
Company shall not be obligated to make more than one payment pursuant to this
Section 4.1.
|
4.2
|
Financing
of Non-Completion
Payment
|
Nothing
in Sections 3.1 and 3.3 shall prevent the Company from (a) engaging in
discussions or negotiations with any person during the Right to Match Period
with respect to potential transactions to raise the funds necessary to pay
the
Non-Completion Payment, or (b) entering into any agreement with respect thereto,
provided that no binding agreement or arrangement of any nature shall be entered
into by the Company in respect of a transaction to raise such funds unless
and
until (x) the Right to Match Period has expired, and (y) if the Offeror has
proposed to amend the terms of the Offer in accordance with Section 4.5(c),
the board of directors of the Company (after receiving advice from its financial
advisor and outside legal counsel) shall have determined in good faith that
the
applicable Acquisition Proposal is a Superior Proposal compared to the proposed
amendment to the terms of the Offer by the Offeror in accordance with Section
4.5(c).
-
21 -
|
4.3
|
Expense
Reimbursement
|
|
|
(a)
|
If
this Agreement is terminated by the Company pursuant to Section
6.1(b), (h) or (i), the Offeror shall pay or cause to be paid to the
Company, all fees and expenses of the Company, up to a maximum of
$1,000,000, which were incurred in connection with the transactions
which
are the subject of this Agreement in immediately available funds
by way of
bank draft or wire transfer no later than the third business day
following
termination of this Agreement.
|
|
|
(b)
|
If
this Agreement is terminated by the Offeror pursuant to Section 6.1(c),
the Company shall pay or cause to be paid to the Offeror or an affiliate
of the Offeror identified to the Company by the Offeror all fees
and
expenses of the Offeror, up to a maximum of $1,000,000, which were
incurred in connection with the transactions which are the subject
of this
Agreement in immediately available funds by way of bank draft or
wire
transfer no later than the third business day following the termination
of
this Agreement.
|
|
|
(c)
|
If
the Offeror withdraws the Offer as a result of a failure to obtain
the PRC
Approvals, the Offeror shall pay or cause to be paid to the Company
$5,000,000 in immediately available funds by way of bank draft or
wire
transfer no later than five business days after such
withdrawal.
|
Neither
the Offeror nor the Company shall be obligated to make more than one payment
pursuant to this Section 4.3.
|
4.4
|
Effect
of Payments
|
Each
party acknowledges that all of the payment amounts set out in this Article
4 (excluding Sections 4.3(a) and (b)) are payments of liquidated
damages which are genuine pre-estimates of the damages which the party entitled
to such damages will suffer or incur as a result of the event giving rise to
such damages and the resultant termination of this Agreement and are not
penalties; provided, however, that nothing contained in this Section 4.4, and
no
payment of any Non-Completion Payment or expense reimbursement shall relieve
or
have the effect of relieving any party in any way from liability for damages
incurred or suffered by a party as a result of an intentional or wilful breach
of this Agreement, including fraudulent misrepresentation. Each Party
irrevocably waives any right that it may have to raise as a defence that any
such liquidated damages are excessive or punitive.
|
4.5
|
Right
to Match Superior
Proposal
|
|
|
(a)
|
If,
before the Expiry Time or termination of the Offer, the board of
directors
of the Company determines that an Acquisition Proposal is a Superior
Proposal, the Company shall immediately notify the Offeror in writing
thereof and provide to the Offeror a notice (the "Notice of
Superior Proposal") containing (i) a copy of the document
evidencing such Superior Proposal, (ii) the identity of the person
making
the Superior Proposal, (iii) a description of the terms and conditions
of
the Superior Proposal (including a copy of the confidentiality agreement
between the Company and the person making the Superior Proposal and
a
written notice from
|
-
22 -
the
board of directors of the Company regarding the value in financial terms that
the board of directors of the Company has in consultation with the Company's
financial advisor determined should be ascribed to any non-cash consideration
offered under such Superior Proposal), and (iv) a copy of the letter of
commitment, term sheet or other comparable evidence of financing upon which
the
board of directors of the Company relied in making the determination referred
to
in clause (iii) of the definition of "Superior Proposal". The Company
shall provide additional details of the Superior Proposal as the Offeror may
reasonably request. The Company shall keep the Offeror promptly and
fully informed of any change to the material terms of the Superior
Proposal.
|
|
(b)
|
Until
the expiration of the Right to Match Period, the board of directors
of the
Company shall not take any action to withdraw, modify, qualify or
change
its recommendation with respect to the Offer or to approve or implement
or
enter into, or resolve to enter into, any agreement related to such
Superior Proposal, other than a confidentiality and standstill agreement
permitted by Section 3.3(d).
|
|
|
(c)
|
The
Company acknowledges and agrees that during the period (the "Right
to Match Period") ending on the fifth business day following the
date of receipt of the Notice of Superior Proposal by the Offeror,
the
Offeror shall have the opportunity, but not the obligation, to offer
to
amend the terms of the Offer and this Agreement, and the Company
shall
co-operate with the Offeror with respect thereto, including negotiating
in
good faith with the Offeror until the expiry of the Right to Match
Period. The board of directors of the Company shall review any
offer by the Offeror to amend the terms of the Offer and this Agreement
in
order to determine, in good faith and in accordance with its fiduciary
duties, whether the Offeror's offer to amend the Offer and this Agreement
would result in the Acquisition Proposal not being a Superior Proposal
compared to the proposed amendment to the Offer and this
Agreement. If the board of directors of the Company so
determines, the Company and the Offeror shall amend this Agreement
to
reflect such offer and the Company shall not take any action to withdraw,
modify, qualify or change its recommendation with respect to the
Offer, as
amended, or to approve or implement or enter into any agreement related
to
such Acquisition Proposal, other than a confidentiality and standstill
agreement permitted by Section 3.3(d). If the Offeror does not
offer to amend the terms of the Offer and this Agreement or the board
of
directors of the Company does not make the determination referred
to
above, the Company shall be entitled to terminate this Agreement
and enter
into an agreement in respect of the Superior Proposal or withdraw,
modify,
qualify or change its recommendation concerning the Offer and recommend
the Superior Proposal, as applicable, provided that it shall have
prior
thereto or concurrently therewith paid to the Offeror or an affiliate
of
the Offeror identified to the Company by the Offeror the payment
contemplated by Section 4.1 and further provided that the Company has
not breached any of its covenants or obligations under Section
3.3.
|
|
|
(d)
|
Each
successive modification of any Acquisition Proposal shall constitute
a new
Acquisition Proposal for the purposes of Section
4.5.
|
-
23 -
|
4.6
|
Reconfirmation
of Approval
|
The
board of directors of the Company shall promptly reaffirm its recommendation
of
the Offer by press release after: (i) any Acquisition Proposal (which is
determined not to be a Superior Proposal) is publicly announced or made; or
(ii)
the board of directors of the Company determines that a proposed amendment
to
the terms of the Offer would result in an Acquisition Proposal no longer being
a
Superior Proposal.
ARTICLE 5
MUTUAL
COVENANTS
|
5.1
|
Consultation
|
|
|
(a)
|
The
parties shall jointly issue a press release following the execution
of
this Agreement relating to the terms of the Offer and this
Agreement. Thereafter, the parties agree to consult with each
other in issuing any subsequent press releases or otherwise making
public
statements with respect to the Offer and in making any filings with
any
federal, provincial or state governmental or regulatory agency or
with any
securities exchange with respect thereto. Subject to the
requirements of applicable Laws, each party shall use its commercially
reasonable efforts to enable the other party to review and consent
to all
such press releases prior to release
thereof.
|
|
|
(b)
|
The
Company shall co-operate with the Offeror and take all reasonable
actions
to support and facilitate the Offeror's announcement strategy and
public
relations efforts in Peru relating to the transactions contemplated
hereby.
|
|
5.2
|
Further
Assurances
|
|
|
(a)
|
Subject
to the terms and conditions herein, the parties agree to use their
respective commercially reasonable efforts to take, or cause to be
taken,
all action and to do, or cause to be done, all things necessary,
proper or
advisable under applicable Laws, to consummate the transactions
contemplated by this Agreement, including (i) the execution and delivery
of such documents as the other party may reasonably require, and
(ii)
using commercially reasonable efforts to effect all necessary
registrations, filings and submissions requested or required by Government
Authorities. Each of the Offeror and the Company shall,
and shall cause their respective Subsidiaries, to effect any such
registrations, filings or submissions only after the prior review
thereof
and concurrence thereto by the other party
hereto.
|
|
|
(b)
|
Each
of the Offeror and the Company will, and the Company will cause its
Subsidiaries to, use their commercially reasonable efforts (i) to
obtain
all necessary waivers, consents and approvals from other parties
to loan
agreements, leases and other contracts or agreements (including,
in
particular but without limitation, the agreement of any persons as
may be
required pursuant to any agreement, arrangement or understanding
relating
to the Company's operations), (ii) to obtain all necessary consents,
approvals and authorizations as are
required
|
-
24 -
to
be obtained under any applicable Laws with respect to the transactions
contemplated hereby, (iii) to lift or rescind any injunction or restraining
order or other order adversely affecting the ability of the parties to
consummate the transactions contemplated hereby, and (iv) to fulfil all
conditions and satisfy all provisions of this Agreement and the
Offer.
ARTICLE 6
TERMINATION,
AMENDMENT & WAIVER
|
6.1
|
Termination
|
This
Agreement may be terminated at any time prior to the Change of Control
Time:
|
|
(a)
|
by
agreement in writing executed by the Offeror and the
Company;
|
|
|
(b)
|
by
the Company, if:
|
|
|
(i)
|
the
Offeror is in material default of any covenant or obligation under
this
Agreement (without giving effect to, applying or taking into consideration
any materiality or Material Adverse Effect qualification already
contained
within such covenant or obligation);
or
|
|
|
(ii)
|
any
representation or warranty made by the Offeror under this Agreement
shall
have been at the date hereof untrue or incorrect or shall have become
untrue or incorrect in any material respect at any time prior to
the
Expiry Time (without giving effect to, applying or taking into
consideration any materiality or Material Adverse Effect qualification
already contained within such representation or
warranty),
|
and
such default or inaccuracy in clauses (i) or (ii) is reasonably likely
to prevent consummation of the Offer and is not curable, or if curable, is
not
cured by the earlier of the date which is ten business days from the date of
written notice of such breach and the Expiry Time;
|
|
(c)
|
by
the Offeror, if:
|
|
|
(i)
|
the
Company is in material default of any covenant or obligation in Section
3.3;
|
|
|
(ii)
|
the
Company is in material default of any other covenant or obligation
under
this Agreement (without giving effect to, applying or taking into
consideration any materiality or Material Adverse Effect qualification
already contained within such covenant or obligation);
or
|
|
|
(iii)
|
any
representation or warranty made by the Company under this Agreement
shall
have been at the date hereof untrue or incorrect or shall have become
untrue or incorrect in any material respect at any time
prior
|
-
25 -
to
the Expiry Time (without giving effect to, applying or taking into consideration
any materiality or Material Adverse Effect qualification already contained
within such representation or warranty),
and
such default or inaccuracy in clauses (ii) or (iii) is not curable or,
if curable, is not cured by the earlier of the date which is ten business days
from the date of written notice of such breach and the Expiry Time;
|
|
(d)
|
by
either party after the 90th
day after the
date the Offer is mailed to the Shareholders by written notice to
the
other party if the Offeror has not purchased any Shares pursuant
to the
Offer, provided that the right to terminate this Agreement pursuant
to
this Section 6.1(d) shall not be available to the Offeror or the
Company as a result of an event that has triggered the right of the
other
party to terminate this Agreement pursuant to Section 6.1(b) or
Section 6.1(c), respectively, provided, however, that if the taking
up and
payment by the Offeror for Shares deposited under the Offer is delayed
by
(i) an injunction or order made by a court or regulatory authority
of
competent jurisdiction, or (ii) the Offeror not having obtained any
regulatory waiver, consent or approval which is necessary to permit
the
Offeror to take up and pay for the Shares deposited under the Offer,
then,
provided that such injunction or order is being contested or appealed
or
such regulatory waiver, consent or approval is being actively sought,
as
applicable, this Agreement shall not be terminated by the Company
or the
Offeror pursuant to this Section 6.1(d) until the earlier of (i) the
120th
day
after the date the Offer is mailed to the Shareholders and (ii) the
fifth
business day following the date on which such injunction or order
ceases
to be in effect or such waiver, consent or approval is obtained,
as
applicable; and provided further, however, that this Agreement shall
not
be terminated by the Offeror pursuant to this Section 6.1(d) if all
of the conditions of the Offer have been satisfied or
waived;
|
|
|
(e)
|
by
the Offeror if any condition of the Offer set forth in Shedule
"B" has not been satisfied or waived at the Expiry Time (other than
as a result of the Offeror's default hereunder) and the Offeror has
not
elected to waive such condition or extend the
Offer;
|
|
|
(f)
|
by
the Offeror upon the occurrence of a Non-Completion Event specified
in
Section 4.1(a);
|
|
|
(g)
|
by
the Company pursuant to Section
4.5(c);
|
|
|
(h)
|
by
the Company on the day following the Latest Mailing Date if the Offeror
has not mailed the Offer (other than a failure to mail as a result
of a
condition in Section 1.1(c) not being satisfied);
|
|
|
(i)
|
by
the Company if:
|
|
|
(i)
|
the
terms or conditions of the Offer are amended so as to conflict in
any
material respect with the provisions of this Agreement, including
Section
1.1(c); or
|
-
26 -
|
|
(ii)
|
the
Offer having expired and all of the conditions thereto having been
satisfied or waived, the Offeror has not purchased or taken up and
paid
for the Shares deposited and not withdrawn under the Offer as required
under the terms of the Offer or Applicable Laws;
or
|
|
|
(j)
|
by
the Offeror if the conditions in Section 1.1(c) are not satisfied or
waived on or prior to the Latest Mailing Date other than as a result
of
the Offeror's default hereunder.
|
|
6.2
|
Effect
of Termination
|
If
this Agreement is terminated as provided in Section 6.1 above, it shall,
other than the provisions of Article 2 and Sections 3.4(c), 3.4(d),
4.1, 4.2, 4.4, 6.2, 7.8 and 7.13 which shall survive
any such termination, become of no further force and effect and no party shall
have any further liability or obligation to the other party hereunder except
for
liability arising from an intentional or wilful breach of this Agreement,
including any fraudulent misrepresentation.
|
6.3
|
Amendment
or Waiver
|
This
Agreement may be amended, modified or superseded, and any of the terms,
covenants, representations, warranties or conditions hereof may be waived,
but
only by written instrument executed by each of the parties hereto; provided,
however, that either of the Company or the Offeror may in its discretion waive
a
condition herein which is solely for its benefit without the consent of the
other. No waiver of any nature, in any one or more instances, shall
be deemed or construed as a further or continued waiver of any condition or
any
breach of any other term, representation or warranty in this
Agreement.
ARTICLE 7
MISCELLANEOUS
|
7.1
|
Headings
and References
|
The
division of this Agreement into Articles, Sections and Schedules and the
insertion of descriptive headings are for convenience of reference only and
do
not control or affect the meaning, interpretation or construction of any
provisions of this Agreement. Unless otherwise specified, references
to "Articles", "Sections" and "Schedules" are to Articles and Sections of and
Schedules to this Agreement. References to "herein", "hereby",
"hereunder", "hereof" and similar expressions are references to this Agreement
and not to any particular Article or Section of or Schedule to this
Agreement.
|
7.2
|
Number
|
In
this Agreement, unless the contrary intention appears, words importing the
singular include the plural and vice versa.
-
27 -
|
7.3
|
Notices
|
|
|
(a)
|
All
notices or other communications which are permitted or required hereunder
shall be communicated in writing and shall be sufficient if delivered
personally, or sent by confidential facsimile addressed as
follows:
|
To
the Offeror:
China
Minmetals Non-Ferrous Metals Co. Ltd.
Xxxx
X000, 0 Xxxxxxx Xxxx
Xxxxxxx
Xxxxxxxx, Xxxxxxx
Xxxxx 100044
Facsimile: +
8610-6849-5215
Attention: Xx.
Xxxx Qixue (Xxxxxx Xxxx)
and
Jiangxi
Copper Company Limited
00
Xxxxx Xxxxxx
Xxxxx,
Xxxxxxx
Xxxxx 000000
Facsimile: +
8670-1377-7656
Attention: Xx.
Xxx Kebing
With
a copy (which shall not itself constitute notice) to:
Davies
Xxxx Xxxxxxxx & Xxxxxxxx LLP
1
First Canadian Place
000
Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx,
XX
X0X
0X0
Facsimile: (000)
000-0000
Attention: Xxx
X. XxXxxxx
To
the Company:
700
– 000 Xxxx Xxxxxx
Xxxxxxxxx,
XX
X0X
0X0
Facsimile:
(000) 000-0000
Attention: Xxxxxx
Xxxxxx
With
a copy (which shall not itself constitute notice) to:
-
28 -
Xxxxxx
Xxxxxx Gervais LLP
1200
Waterfront Centre
000
Xxxxxxx Xxxxxx, X.X. Xxx 00000
Xxxxxxxxx,
XX
X0X
0X0
Facsimile: (000)
000-0000
Attention: Xxxx
X. Xxxxxxxx
|
|
(b)
|
All
notices and other communications delivered to the Offeror pursuant
to
Section 7.3(a) shall be deemed to have been given and received on the
date in Beijing, China on which (i) the notice or communication was
physically delivered to, and actually received at, the address provided
herein, or (ii) if sent by facsimile, the notice or communication
was
actually received prior to 4:30 p.m. Beijing time on such date, in
either
case, if such date is not a business day, the next succeeding business
day.
|
|
|
(c)
|
All
notices and other communications delivered to the Company pursuant
to
Section 7.3(a) shall be deemed to have been given and received on the
date in Vancouver on which (i) the notice or communication was physically
delivered to, and actually received at, the address provided herein,
or
(ii) if sent by facsimile, the notice or communication was actually
received prior to 4:30 p.m. Vancouver time on such date, in either
case,
if such date is not a business day, the next succeeding business
day.
|
|
|
(d)
|
Any
period of business days referred to in this Agreement shall be calculated
as follows: (i) the first business day of such period shall be the
first
business day following the date on which the applicable notice or
communication that initiates such period was deemed to be received
as
determined in Section 7.3(b) or Section 7.3(c), as applicable; and
(ii)
the period shall end at 11:59 p.m. on the last business day of such
period
in the city in which such notice or communication was
received.
|
|
7.4
|
Entire
Agreement
|
This
Agreement, together with the Confidentiality Agreement, supersede all prior
agreements, commitments, arrangements or understandings between the parties
hereto with respect to the subject matter hereof and constitute the entire
agreement between the parties with respect to the subject matters
hereof.
|
7.5
|
Severability
|
If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated and the parties shall negotiate in good faith to modify the
Agreement to preserve each party's anticipated benefits hereunder.
-
29 -
|
7.6
|
Assignment
|
Except
as expressly permitted by the terms hereof, neither this Agreement nor the
rights, interests and obligations hereunder shall be assignable by either party
without the prior written consent of the other party, provided, however, that
the Offeror may assign all or any part of its rights or obligations under this
Agreement to a corporation whose shares are wholly owned directly or indirectly
by China Minmetals Non-Ferrous Metals Co. Ltd. and/or Jiangxi Copper Company
Limited, provided that if such assignment takes place, the Offeror shall
continue to be liable to the Company for any default in performance by the
assignee. The Offeror may exercise such right of assignment at any
time by giving a notice in writing to the Company.
|
7.7
|
Expenses
|
Except
as otherwise provided in Sections 4.1 and 4.2, all costs and expenses
incurred in connection with this Agreement shall be paid by the party incurring
such cost or expense, whether or not the Offer is consummated. The
parties represent and warrant to each other that, except for BMO Capital
Markets, in the case of the Offeror, and Genuity Capital Markets, in the case
of
the Company, no broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission, or to the reimbursement of
any
of its expenses, in connection with the Offer. The Offeror
acknowledges that the Company has provided the Offeror an opportunity to review
a correct and complete copy of all agreements between the Company and each
of
its financial advisors as are in existence as at the date hereof. The
Company covenants not to amend the terms of any such agreements relating to
the
payment of fees and expenses with respect to the Offer without the prior written
approval of the Offeror.
|
7.8
|
Remedies
|
The
parties hereto agree that irreparable damage would occur in the event that
any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or restraining order to
remedy or prevent non-compliance or breaches with the terms of this Agreement
and to enforce specifically the terms and provisions hereof without the
necessity of posting bond or security in connection therewith in any court
of
the Province of British Columbia having jurisdiction; provided that, subject
to
the other provisions of this Agreement, such remedies shall be in addition
to,
and not in substitution for, any other remedy to which the parties may be
entitled at law or in equity.
|
7.9
|
Choice
of Law
|
This
Agreement shall be governed by, construed and interpreted in accordance with
the
laws of the Province of British Columbia and the laws of Canada applicable
therein (excluding any conflict of laws rule or principle which might refer
such
construction to the laws of another jurisdiction) and all actions or proceedings
arising out of or relating to this Agreement shall be heard and determined
exclusively in the courts of the Province of British Columbia.
-
30 -
|
7.10
|
Currency
|
Except
as expressly indicated otherwise, all sums of money referred to in this
Agreement are expressed and shall be payable in Canadian dollars.
|
7.11
|
Schedules
|
The
following are the Schedules to this Agreement, which form an integral part
hereof:
Schedule "A" - Definitions
Schedule
"B" - Conditions
of the Offer
Schedule
"C" - Representations
and Warranties of the Offeror
Schedule
"D" - Representations
and Warranties of the Company
|
7.12
|
Third
Parties
|
Nothing
contained in this Agreement shall create any rights in, or be deemed to have
been executed for the benefit of, any person that is not a party hereto, or
a
successor or permitted assign of such a party; provided however, that the
parties hereto specifically acknowledge that the provisions of
Section 1.4(c) and Section 1.6 are intended to be for the benefit of,
and shall be enforceable by, the employees, officers and directors of the
Company and its Subsidiaries affected thereby and their heirs and
representatives.
|
7.13
|
No
Personal Liability
|
(a) No
director, officer or employee of the Company shall have any personal liability
to the Offeror under this Agreement.
(b) No
director, officer or employee of the Offeror shall have any personal liability
to the Company under this Agreement.
|
7.14
|
Time
of Essence
|
Time
shall be of the essence in this Agreement.
|
7.15
|
Counterparts
|
This
Agreement may be executed in any number of counterparts, and delivered by
facsimile or otherwise, and each such counterpart shall be deemed to be an
original instrument but all such counterparts together shall constitute but
one
Agreement.
-
31 -
IN
WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed on their behalf as of the date first written above.
|
CHINA
MINMETALS NON-FERROUS METALS CO. LTD.
|
|||
|
by
|
/s/
Xx. Xxxxx Guoping
|
||
|
Name: Xx.
Xxxxx Xxxxxxx
|
|||
|
Title: Vice
President
|
|||
|
JIANGXI
COPPER COMPANY LIMITED
|
|||
|
by
|
/s/
Xx. Xxx Kebing
|
||
|
Name: Xx.
Xxx Kebing
|
|||
|
Title:
Deputy Chief Engineer & Senior Engineer
|
|||
|
|
|||
|
by
|
/s/
Xxxx Xxxxx
|
||
|
Name: Xxxx
Xxxxx
|
|||
|
Title: Chairman
|
|||
-
32 -
SCHEDULE
"A"
DEFINITIONS
"Acquisition
Proposal" has the meaning set out in Section 3.3(a).
"affiliate"
shall have the meaning attributed to it under the Business Corporations
Act (British Columbia).
"Agreement"
means this Agreement including the Schedules hereto.
"Alternative
Transaction" has the meaning set out in Section 3.5(b).
"Applicable
Laws" means the Business Corporations Act (British Columbia),
the securities legislation of each province and territory of Canada, the rules,
regulations and forms made or promulgated under that legislation, and the
published policies, bulletins and notices of the regulatory authorities
administering that legislation and the rules, regulations, bylaws and policies
of the Toronto Stock Exchange, as any of the foregoing may be amended from
time
to time.
"Auction
Process" has the meaning set out in the recitals to this
Agreement.
"Bonus
Shares" has the meaning set out in paragraph (b) of Schedule
"D".
"Budget"
has the meaning set out in Section 3.1(d).
"business
day" means any day other than a Saturday, Sunday or a day observed as
a
holiday in Vancouver, British Columbia or Beijing, China or a day on which
banks
in Vancouver, British Columbia or Beijing, China are not generally open for
business during normal business hours.
"Change
of Control Time" has the meaning set out in Section
1.4(a).
"Circular"
means the take-over bid circular of the Offeror in respect of the
Offer.
"Company"
means Northern Peru Copper Corp., a corporation existing under the laws of
British Columbia.
"Company's
Disclosure Documents" means the Company's Notice of Meeting and
Management Information and Proxy Circular dated October 5, 2007, Annual
Information Form for the year ended June 30, 2007 and Management's Discussion
and Analysis contained in the Company's 2007 Annual Report (as amended),
financial statements contained in the Company's 2007 Annual Report (as amended),
and all interim financial statements, interim Management's Discussion and
Analyses and material change reports filed pursuant to the Applicable Laws
since
September 30, 2007 and prior to the date hereof.
"Company
Disclosure Letter" means the disclosure letter delivered by the Company
to the Offeror contemporaneously with the execution and delivery of this
Agreement.
A-1
"Concessions"
has the meaning set out in paragraph (m) of Schedule "D".
"Confidentiality
Agreement" has the meaning set out in Section 3.4(a).
"Conflicts
Agreement" means the agreement dated April 27, 2007 between the
Company, Global Copper Corp. and Inca Pacific Resources Inc. to address
conflicts of interests with respect to acquisitions of mining properties caused
by cross directorships between the foregoing companies.
"Contract"
means any contract, commitment or understanding (including any lease, license,
loan agreement, guarantee, security, indemnity, indenture or other instrument),
whether written or oral.
"Data
Room Information" means the documents stored on an optical data disc
delivered to the Offeror on the date hereof, the information contained in the
Company Disclosure Letter and the information contained in the Company's
Disclosure Documents.
"Directors'
Circular" means a directors' circular of the board of directors of the
Company.
"Effective
Time" has the meaning set out in Section 3.1.
"Employment
Arrangements" has the meaning set out in Section 1.4(c).
"Encumbrance"
means any lien, charge, title retention right, security interest, pledge,
hypothecation or encumbrance of any nature or kind whatsoever.
"Environmental
Laws" has the meaning set out in paragraph (o) of Schedule
"D".
"Expiry
Time" has the meaning set out in Section 1.1(b).
"Fairness
Opinion" has the meaning set out in Section 1.2(b).
"fully-diluted
basis" means, with respect to the number of outstanding Shares at any
time, the number of Shares that would be outstanding if all rights to acquire
Shares were exercised, including all Bonus Shares and all Shares issuable upon
the exercise of Options, whether vested or unvested.
"Government
Authority" means: (i) any multinational, federal, provincial, state,
regional, municipal, local or other government, governmental or public
department, central bank, court, tribunal, arbitral body, commission,
commissioner, council, board, bureau or agent, domestic or foreign; (ii) any
subdivision agent, commission, commissioner, board or authority of any of the
foregoing; (iii) any self-regulatory authority, including the Toronto Stock
Exchange; or (iv) any quasi-governmental or private body exercising any
regulatory, expropriation or taxing authority under or for the account of any
of
the foregoing.
"Indemnified
Party" and "Indemnified Parties" have the meaning set
out in Section 1.6(a).
"International
Standards" has the meaning set out in paragraph
(o) of Schedule "D".
A-2
"Lands"
has the meaning set out in paragraph (m) of Schedule "D".
"Latest
Mailing Date" means the date that is 30 days after the date of this
Agreement; provided, however, that if the mailing of the Circular is delayed
by
reason of (a) the Company not having provided to the Offeror the Directors'
Circular in accordance with Section 1.3(b) or any information pertaining to
the Company that is necessary for the completion of the Circular by the Offeror,
or not having provided the Offeror with such other assistance in the preparation
of the Circular as may be reasonably requested by the Offeror in order that
the
Circular comply in all material respects with Applicable Laws, or (b) the
Company not having provided the lists referred to in Section 1.3(a), then,
in
either case, such date shall be extended to the fifth business day following
the
date on which the Company supplies such necessary documents, information, lists
or other assistance; provided further that if the mailing of the Offer is
delayed by reason of (x) an injunction or order made by a court or regulatory
authority of competent jurisdiction or (y) the Offeror not having obtained
any
regulatory waiver, consent or approval (other than PRC Approvals) which is
necessary to permit the Offeror to mail the Offer Documents, then, in either
case, provided that such injunction or order is being contested or appealed
or
such regulatory waiver, consent or approval is being actively sought, as
applicable, such date shall be extended for a period ending on the fifth
business day following the date on which such injunction or order ceases to
be
in effect or such waiver, consent or approval is obtained, as
applicable. If the Latest Mailing Date occurs during or within four
business days following the end of a Right to Match Period, then the Latest
Mailing Date shall be extended to 11:59 p.m. (Vancouver time) on the fourth
business day following the end of such Right to Match Period.
"Laws"
means any laws, treaties, conventions, statutes, judgments, decisions,
declarations, rulings, decrees, injunctions, writs, certificates and orders,
by-laws, rules, regulations, ordinances, protocols, codes, guidelines, policies,
notices, directions or other requirements of any Government
Authority.
"Material
Adverse Effect" means, with respect to a person, any change, effect,
event or occurrence that, individually or in the aggregate, is, or would
reasonably be expected to be, material and adverse to the business, properties,
assets, liabilities (contingent or otherwise), condition (financial or
otherwise), capitalization, operations or results of operations of such person
and its subsidiaries, taken as a whole, other than any change, effect, event
or
occurrence (i) in or relating to general political, economic or financial
conditions, including in Canada, the United States or Peru, (ii) in or relating
to the state of securities markets in general, including any reduction in market
indices, (iii) in or relating to currency exchange rates, (iv) in or relating
to
the industries in which such person operates in general or the market for copper
in general, (v) in or relating to Canadian generally accepted accounting
principles or regulatory accounting requirements, (vi) in or relating to any
Laws or any interpretation thereof by any Government Authority, or (vii)
relating to a change in the market trading price of the Shares
either: (A) related to this Agreement and the Offer or the
announcement thereof; or (B) related to such a change in the market trading
price primarily resulting from a change, effect, event or occurrence excluded
from this definition of Material Adverse Effect under clauses (i) to (vi) above,
provided, however, that such effect referred to in clauses (i) to (vi) above
does not primarily relate to (or have the effect of primarily relating to)
that
person or its Subsidiaries or disproportionately adversely affect that person
and its Subsidiaries, taken as a whole, compared
A-3
to
other companies of similar size operating in the industry in which that person
and its Subsidiaries operate.
"Material
Contracts" has the meaning set out in paragraph (v) of Schedule
"D".
"Minimum
Tender Condition" has the meaning set out in Section (a) of
Schedule "B".
"Non-Completion
Event" has the meaning set out in Section 4.1.
"Non-Completion
Payment" has the meaning set out in Section 4.1.
"Notice
of Superior Proposal" has the meaning set out in Section
4.5(a).
"Offer"
has the meaning set out in Section 1.1(a).
"Offer
Documents" has the meaning set out in Section 1.1(d).
"Offeror"
means, together, China Minmetals Non-Ferrous Metals Co. Ltd. and Jiangxi Copper
Company Limited, each a company existing under the laws of the People's Republic
of China.
"Option"
means an option to purchase Shares granted by the Company pursuant to the Stock
Option Plan.
"person"
includes an individual, corporation, incorporated or unincorporated association,
syndicate or organization, partnership, limited partnership, limited liability
company, joint venture, association, joint stock company, trust, trustee,
executor, administrator or other legal representative or other
entity.
"PRC
Approvals" means any filings with, applications to or consents or
approvals from the Ministry of Commerce, the National Development Reform
Committee, the State Administration for Foreign Exchange, the State-owned Assets
Supervision and Administration Commission in the People's Republic of
China.
"Pre-Acquisition
Reorganization" has the meaning set out in Section 1.7.
"Pre-Feasibility
Study" means the report by Xxxxxx Engineering Inc., effective February
19, 2007 and revised April 30, 2007, analyzing the feasibility of the Xxxxxx
deposit and providing technical information on the Hilorico
deposit.
"Representative"
has the meaning set out in Section 3.3(a).
"Right
to Match Period" has the meaning set out in Section
4.5(c).
"Second-Step
Transaction" has the meaning set out in Section 1.4(b).
"Shares"
means common shares without par value in the capital of the Company as
constituted on the date hereof.
"Shareholders"
has the meaning set out in Section 1.1(a).
A-4
"Stock
Option Plan" means the Company's Stock Option and Stock Bonus Plan
dated May 9, 2005, as amended from time to time.
"Subsidiary"
means, with respect to a specified body corporate, any body corporate of which
more than 50% of the outstanding shares ordinarily entitled to elect a majority
of the board of directors thereof (whether or not shares of any other class
shall or might be entitled to vote upon the happening of any event or
contingency) are at the time owned directly or indirectly by such specified
body
corporate and shall include any body corporate, partnership, joint venture
or
other entity over which it exercises direction or control or which is in a
like
relation to a Subsidiary.
"Superior
Proposal" means an unsolicited bona fide written Acquisition
Proposal made to the board of directors of the Company:
|
|
(i)
|
that
is made after the date hereof;
|
|
|
(ii)
|
that
did not result from a breach of Section
3.3;
|
|
|
(iii)
|
in
respect of which the availability of any required financing to complete
such Acquisition Proposal has been demonstrated, to the satisfaction
of
the board of directors, acting in good faith (after receipt of advice
from
its financial advisors and outside legal counsel), by delivery of
a letter
of commitment, term sheet or other comparable evidence of financing
from
one or more financial institutions of recognized
standing;
|
|
|
(iv)
|
that
is not subject to any due diligence and/or access
condition;
|
|
|
(v)
|
in
respect of which the board of directors of the Company has determined
in
good faith after receipt of advice from its outside legal counsel
that
failure to recommend such Acquisition Proposal to Shareholders would
be a
breach of its fiduciary duties;
|
|
|
(vi)
|
that
the board of directors of the Company has determined in good faith
after
receipt of advice from its financial advisors and its outside legal
counsel,
|
|
|
(A)
|
is
reasonably capable of completion without undue delay taking into
account
all legal, financial, regulatory and other aspects of such Acquisition
Proposal and the person making such Acquisition Proposal;
and
|
|
|
(B)
|
would,
if consummated in accordance with its terms (but not assuming away
any
risk of non-completion), result in a transaction more favourable
to the
Shareholders from a financial point of view than the Offer, taking
into
account any adjustment to the terms and conditions of the Offer proposed
by the Offeror pursuant to Section 4.5;
and
|
|
|
(vii)
|
that
is made for all of the Shares.
|
A-5
"Tax"
or "Taxes" means all taxes, however denominated, including any
interest, penalties or other additions that may become payable in respect
thereof, imposed by any government or Government Authority, which taxes shall
include, without limiting the generality of the foregoing, all income or profits
taxes (including, but not limited to, federal income taxes and provincial income
taxes), capital taxes, payroll and employee withholding taxes, unemployment
insurance, social insurance taxes (including Canada Pension Plan payments),
sales and use taxes, ad valorem taxes, excise taxes, franchise taxes, gross
receipt taxes, business licence taxes, occupation taxes, real and personal
property taxes, stamp taxes, environmental taxes, transfer taxes, workers
compensation, pension assessment and other governmental charges and other
obligations of the same or of a similar nature to any of the foregoing, which
the Company or its Subsidiaries is required to pay, withhold or
collect.
"transactions
contemplated hereby" means the making of the Offer, the entering into
of this Agreement and any lock-up agreement, the consummation of the
transactions contemplated by this Agreement and any lock-up agreement and all
actions and negotiations in the contemplation thereof, including the Offer,
the
take-up of Shares under the Offer, any Compulsory Acquisition and any
Second-Step Transaction.
A-6
SCHEDULE
"B"
CONDITIONS
OF THE OFFER
The
Offeror shall have the right to withdraw the Offer and not take up and pay
for,
and the right to extend the period of time during which the Offer is open and
postpone taking up and paying for, any Shares deposited thereunder if any of
the
following conditions are not satisfied or waived by the Offeror at or prior
to
the Expiry Time:
|
|
(a)
|
there
shall have been validly deposited under the Offer and not withdrawn
at the
Expiry Time that number of Shares that constitute not less than 66⅔% of
the outstanding Shares on a fully diluted basis (the "Minimum
Tender Condition");
|
|
|
(b)
|
all
approvals, waiting or suspensory periods (and any extensions thereof),
consents, orders, rulings and exemptions of any Government Authority
in
Canada, Peru and the United States that are, as determined by the
Offeror,
acting reasonably, necessary or advisable and required by Law to
complete
the Offer and any Second-Step Transaction and the PRC Approval shall
have
been obtained or, in the case of waiting or suspensory periods, expired
or
been terminated, each on terms and conditions satisfactory to the
Offeror,
acting reasonably;
|
|
|
(c)
|
the
Offeror shall have determined, acting reasonably, that no act, action,
suit or proceeding shall have been threatened or taken before or
by any
Government Authority or by any elected or appointed public official
or
private person (including, without limitation, any individual,
corporation, firm, group or other entity) in Canada, China, the United
States or Peru, whether or not having the force of law and no Law
shall
have been proposed, enacted, promulgated or
applied:
|
|
|
(i)
|
which
has the effect or may have the effect to cease trade, enjoin, prohibit
or
impose material limitations or conditions on the purchase by or the
sale
to the Offeror of the Shares or the right of the Offeror to own or
exercise full rights of ownership of the Shares;
or
|
|
|
(ii)
|
which,
if the Offer were consummated, would reasonably be expected to have
a
Material Adverse Effect on the
Company;
|
|
|
(iii)
|
which
would prevent, make illegal, materially delay the consummation of,
or
impose material limitations or conditions on, the purchase by or
the sale
to the Offeror of the Shares under any transaction contemplated hereby
or
the Offeror's ability to own or exercise full rights of ownership
of the
Shares or any material portion of the business or assets of the Company
or
its Subsidiaries; or
|
|
|
(iv)
|
which
seeks to (A) prohibit or limit the ownership or operation by the
Offeror
of any material portion of the business or any material assets of
the
Company or its Subsidiaries, or (B) compel the Offeror or
its
|
B-1
Subsidiaries
to dispose of or hold separate any material portion of the business or any
material assets of the Company or any of its Subsidiaries;
|
|
(d)
|
there
shall not exist any prohibition at law in Canada, China, the United
States
or Peru against the Offeror making the Offer, taking up and paying
for any
Shares deposited under the Offer, or completing a Second-Step
Transaction;
|
|
|
(e)
|
since
the announcement of the Offer, the Company and its Subsidiaries shall
not
(i) have taken or proposed to take any action that has not been publicly
disclosed or disclosed in writing to the Offeror prior to announcement
of
the Offer, or (ii) publicly disclosed that they intend to take any
action
that has not been disclosed in writing to the Offeror prior to the
announcement of the Offer, in either case that the Offeror shall
have
determined, acting reasonably, would be expected to have a Material
Adverse Effect on the Company or would prevent, make illegal, materially
delay the consummation of, or impose material limitations or conditions
on, the purchase by or the sale to the Offeror of the Shares under
any
transaction contemplated hereby or the Offeror's ability to own or
exercise full rights of ownership of the Shares or any material portion
of
the business or assets of the Company or its
Subsidiaries;
|
|
|
(f)
|
the
Offeror shall have determined, acting reasonably, that there does
not
exist and shall not have occurred (or, if there does exist or shall
have
occurred prior to the commencement of the Offer, there shall not
have been
disclosed, generally by way of press release and material change
report or
to the Offeror in writing on or before the Expiry Time) any change,
effect, event or occurrence that would reasonably be expected to
have a
Material Adverse Effect in respect of the
Company;
|
|
|
(g)
|
all
of the Options, rights to acquire Bonus Shares and any other contractual
rights to acquire Shares shall have been either exercised, satisfied
or
otherwise terminated on terms satisfactory to the Offeror, acting
reasonably;
|
|
|
(h)
|
this
Agreement shall not have been terminated by the Offeror or the Company
in
accordance with its terms and no event shall have occurred that,
with
notice or lapse of time or both, entitles the Offeror the right to
terminate this Agreement; and
|
|
|
(i)
|
the
Offeror shall not have become aware after the date this Agreement
becomes
effective of any untrue statement of a material fact, or an omission
to
state a material fact that is required to be stated or that is necessary
to make a statement not misleading in the light of the circumstances
in
which it was made and at the date it was made (after giving effect
to all
subsequent filings in relation to all matters covered in earlier
filings),
in any of the Company's Disclosure Documents filed by or on behalf
of the
Company with any securities regulatory authority in Canada or the
United
States, which the Offeror shall have determined in its reasonable
judgment
constitutes or results in a Material Adverse
Effect with respect to the
Company.
|
B-2
The
foregoing conditions are for the sole benefit of the Offeror and may be asserted
by the Offeror regardless of the circumstances (including any action or inaction
by the Offeror or any of its affiliates) giving rise to any such
condition. Subject to the provisions of this Agreement, the Offeror
may waive any of the foregoing conditions in whole or in part at any time and
from time to time, both before and after the relevant Expiry Time, without
prejudice to any other rights which the Offeror may have. The failure
by the Offeror at any time to exercise any of the foregoing rights will not
be
deemed a waiver of any such right, and each such right will be deemed an ongoing
right which may be asserted at any time and from time to time.
B-3
SCHEDULE
"C"
REPRESENTATIONS
AND WARRANTIES OF THE OFFEROR
|
|
(a)
|
Organization
and Qualification. The Offeror has been duly incorporated
and is validly existing as a company under the laws of the People's
Republic of China and has the necessary corporate power and authority
to
own its assets and conduct its business as now owned and
conducted.
|
|
|
(b)
|
Authority
Relative to this Agreement. The Offeror has the requisite
corporate power and authority to enter into this Agreement and to
perform
its obligations hereunder. The execution and delivery of this
Agreement by the Offeror and the consummation by the Offeror of the
Offer,
including, without limitation, the making of the Offer and the taking
up
of and payment for Shares thereunder, have been duly authorized by
all
requisite corporate action on the part of the Offeror and no other
corporate proceedings on the part of the Offeror are necessary to
authorize this Agreement and the transactions contemplated hereby,
including, without limitation, the making of the Offer and the taking
up
of and payment for Shares thereunder. This Agreement has been
duly executed and delivered by the Offeror and constitutes a legal,
valid
and binding obligation of the Offeror, enforceable against the Offeror
in
accordance with its terms, subject to the availability of equitable
remedies and the enforcement of creditors' rights
generally. The execution and delivery by the Offeror of this
Agreement and the performance by it of its obligations hereunder,
including, without limitation, the making of the Offer and the taking
up
of and payment for Shares thereunder, will not result in a violation
or
breach of any provision of its constating documents or any resolutions
of
its directors and shareholders or a material violation or breach
of any
applicable law, or, to its knowledge, any regulation, order, judgment
or
decree (subject to obtaining the consents referred to below) or any
agreement, arrangement or understanding to which it or its Subsidiaries
is
a party or by which its or any of their properties are
bound.
|
|
|
(c)
|
Approvals. Other
than in connection with or in compliance with the provisions of Applicable
Laws and the PRC Approvals, no authorization, consent or approval
of, or
filing with, any Government Authority is required to be obtained
by the
Offeror for the consummation by the Offeror of its obligations under
this
Agreement, including, without limitation, the making of the Offer
and the
taking up of and payment for Shares thereunder, except for such
authorizations, consents, approvals and filings the failure to obtain
or
make which would not, individually or in the aggregate, prevent or
materially delay the consummation of the transactions contemplated
by this
Agreement.
|
|
|
(d)
|
Actions. There
are no claims, actions, proceedings, suits, investigations or reviews
pending or, to the best of the knowledge of the Offeror, threatened
against the Offeror or its Subsidiaries or any of its or their properties
or assets by or before any Government Authority or any elected or
appointed public official or
|
C-1
existing
facts or conditions which may reasonably be expected, individually or in the
aggregate, to be a proper basis for claims, actions, proceedings, suits,
investigations or reviews that, either individually or in the aggregate, could
prevent the consummation of the transactions contemplated hereby, including,
without limitation, the making of the Offer and the taking up of and payment
for
Shares thereunder.
|
|
(e)
|
Financing. The
Offeror will have made prior to mailing the Offer adequate arrangements
to
ensure that the required funds are available to effect payment in
full for
all of the Shares to be acquired pursuant to the
Offer.
|
|
|
(f)
|
Information
in the Offer Documents. The Offer Documents will comply in
all material respects with the provisions of Applicable Laws and,
on the
date first published or sent or given to the Shareholders, will not
contain any untrue statement of a material fact or omit to state
any
material fact required to be stated therein or necessary in order
to make
the statements made therein, in the light of the circumstances under
which
they were made, not misleading, except that Offeror makes no
representation or warranty with respect to information furnished
by the
Company expressly for inclusion in the Offer
Documents.
|
|
|
(g)
|
Compliance
with Applicable Laws. To the best of its knowledge, the
Offeror has complied with all Applicable Laws in connection with
this
Agreement and the transactions contemplated
hereby.
|
|
|
(h)
|
Investment
Canada Act. The Offeror is not a Canadian for the purposes
of the Investment Canada
Act.
|
|
|
(i)
|
Ownership. The
Offeror does not own any right, title or interest, directly or indirectly,
in or to any Shares.
|
|
|
(j)
|
PRC
Approvals. The PRC Approvals are the only approvals
currently anticipated by the Offeror to be required by Government
Authorities in the People's Republic of China in connection with
the
transactions contemplated by this
Agreement.
|
C-2
SCHEDULE
"D"
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
|
|
(a)
|
Organization
and Qualification. The Company is validly existing as a
corporation under the Business Corporations Act (British
Columbia) and has full corporate power and authority to own its property
and conduct its businesses as currently owned and
conducted. The Company and its Subsidiaries are duly qualified
to carry on business, and are in good-standing, in each jurisdiction
in
which the character of their properties, owned or leased, or the
nature of
their activities makes such qualification necessary, except where
the
failure to be so qualified or in good standing would not reasonably
be
expected to have a Material Adverse Effect on the Company. The
copies of the Company's memorandum and articles and all of the constating
documents of the Company's Subsidiaries contained in the Data Room
Information are accurate and complete and have not been amended or
superseded, and neither the Company nor the Company's Subsidiaries
has not
taken any action to amend or supersede such
documents.
|
|
|
(b)
|
Capitalization. The
authorized capital of the Company consists of an unlimited number
of
Shares and as at the date hereof: (i) 31,078,893 Shares are
issued and outstanding as fully paid and non-assessable shares in
the
capital of the Company; (ii) there are outstanding Options issued
under
the Stock Option Plan (at the prices and to the persons identified
in a
schedule contained in the Data Room Information), providing for the
issuance of 1,808,000 Shares upon the exercise thereof; (iii) 50,000
Shares are issuable under the share bonus plan in the Stock Option
Plan
("Bonus Shares") all of which Bonus Shares shall be
issued prior to the Expiry Time; and (iv) 175,000 Shares are issuable
pursuant to contractual obligations identified in the Data Room
Information. Except as described in the preceding sentence,
there are no options, warrants, conversion privileges, calls or other
rights, agreements, arrangements, commitments or obligations of the
Company to issue, sell or acquire any securities of the Company (including
any pre-emptive or similar rights granted by the Company) or securities
or
obligations of any kind convertible into or exchangeable for any
securities of the Company or any other person, nor are there outstanding
any stock appreciation rights, phantom equity or similar rights,
agreements, arrangements or commitments based upon the share price,
book
value, income or any other attribute of the Company. No holder
of securities issued by the Company or any of its Subsidiaries has
any
right to compel the Company to register or otherwise qualify securities
for public sale. The Shares are listed for trading only on the
Toronto Stock Exchange. The Company has never adopted a
shareholder rights plan and is not party to any agreement that relates
to
a shareholder rights plan.
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(c)
|
Subsidiaries. The
only Subsidiaries of the Company and their respective jurisdictions
of
incorporation are identified in a schedule contained in the Data
Room
Information. Each such Subsidiary has been duly formed and
organized and is validly existing under applicable Laws and has full
power
to own its
|
D-1
property
and conduct its businesses as currently owned and conducted. All of
the outstanding shares and other ownership interests of the Company's
Subsidiaries described in the Data Room Information are validly issued, fully
paid and non-assessable and all securities and other ownership interests owned
directly or indirectly by the Company are owned free and clear of all
Encumbrances, except as set out in the Data Room Information. There are no
options, warrants, conversion privileges or other rights, agreements,
arrangements or commitments obligating the Company or its Subsidiaries to issue,
sell or acquire any securities of that Subsidiary (including any pre-emptive
or
similar rights granted by the Company or its Subsidiaries) or securities or
obligations of any kind convertible into or exchangeable for securities or
other
ownership interests of that Subsidiaries or any other person. There
are no outstanding stock appreciation rights, equity or similar rights,
agreements, arrangements or commitments based on the book value, income or
any
other attribute of the Company's Subsidiaries. The Company does not
hold any equity interest, or right to acquire an equity interest, in any person,
other than its interests in its Subsidiaries.
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(d)
|
Authority
Relative to this Agreement. The Company has the requisite
corporate power and authority to enter into this Agreement and all
documents and agreements contemplated herein to which it is or will
be a
party and to perform its obligations hereunder and
thereunder. The execution and delivery of this Agreement by the
Company has been duly authorized by the board of directors of the
Company
and no other corporate proceedings of the Company on the part of
the
Company or the Shareholders are necessary to authorize this Agreement
and
the transactions contemplated hereunder. This agreement has
been duly executed and delivered by the Company and constitutes a
legal,
valid and binding obligation of the Company enforceable by the Offeror
against the Company in accordance with its terms, subject to the
availability of equitable remedies and the enforcement of creditors'
rights generally. Except as disclosed in the Company Disclosure
Letter, the execution and delivery by the Company of this Agreement
and
performance by it of its obligations hereunder and the transactions
contemplated hereby, including, but not limited to, the making of
the
Offer by the Offeror, the taking up and payment for Shares deposited
thereunder and any subsequent Second-Step Transaction carried out
and
consummated in accordance with the Applicable Laws, will not result
in:
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|
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(i)
|
a
violation, conflict or breach of any provision of or constitute a
default
(or an event that with notice or lapse of time or both would become
a
default) under, require any consent to be obtained under or give
rise to
any third party rights of termination, amendment, first refusal,
shot-gun,
acceleration, cancellation or penalty or payment obligation or right
of
purchase or sale under any provision
of:
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(A)
|
its
constating documents or any resolution of its directors or Shareholders
or
those of its Subsidiaries;
|
D-2
|
|
(B)
|
any
applicable Law or, to its knowledge, any regulation, order, judgment
or
decree (subject to obtaining the authorizations, consents and approvals
referred to in paragraph 0);
or
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(C)
|
any
agreement, arrangement or understanding to which it or its Subsidiaries
is
a party or by which any of them or their properties or assets is
bound or
affected that, individually or in the aggregate, could reasonably
be
expected to result in a Material Adverse Effect on the
Company;
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(ii)
|
the
imposition of any Encumbrance upon any of its assets or the assets
of its
Subsidiaries that, individually or in the aggregate, could reasonably
be
expected to result in a Material Adverse Effect on the Company;
or
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(iii)
|
the
obligation on the Company to make any "change of control" payment
or other
similar obligation.
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(e)
|
Approvals. Other
than in connection with or in compliance with the provisions of Applicable
Laws, no authorization, consent or approval of, or filing with, any
Government Authority is necessary for the consummation by the Company
of
its obligations under this Agreement, except for such authorizations,
consents, approvals and filings the failure by any party to obtain
or make
which would not, individually or in the aggregate, prevent or materially
delay the consummation of the transactions contemplated
hereunder.
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(f)
|
Financial
Statements and Disclosure Documents. The audited financial
statements of the Company (including any related notes thereto) prepared
on a consolidated basis, for and as at the year ended June 30, 2007,
have
been prepared in accordance with Canadian generally accepted accounting
principles including those recommended in the handbook of the Canadian
Institute of Chartered Accountants applied on a basis consistent
with
prior periods and fairly present the consolidated financial position
of
the Company and its Subsidiaries as at the respective dates thereof
and
the consolidated results of their operations and the changes in their
financial position for the periods indicated therein. Except as
disclosed in the Company's Disclosure Documents, since September 30,
2007, the Company has not effected any change in its accounting methods,
principles or practices. The Company has filed with the
appropriate Government Authority true and complete copies of all
forms,
reports, schedules, statements and other documents required to be
filed by
it under Applicable Laws. The Company's Disclosure Documents
were, as of their respective dates, in compliance in all material
respects
with the Applicable Laws and did not, when filed, contain a
"misrepresentation" within the meaning of the Applicable Laws and
complied
in all material respects with the requirements of Applicable Laws
and make
full disclosure of and provision for all material actual and contingent
liabilities.
|
D-3
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(g)
|
Liabilities. The
Company and its Subsidiaries have no indebtedness outstanding, other
than
trade payables incurred in the ordinary course of business. The
Company and its Subsidiaries have no liabilities or obligations of
any
nature (whether accrued, absolute, contingent, determined, determinable
or
otherwise), and there is no existing condition, situation or set
of
circumstances which could be expected to result in such a liability
or
obligation, other than liabilities or obligations incurred in connection
with the surface rights acquisition program identified in the Budget,
liabilities or obligations disclosed, reflected or provided for in
the
Company's audited financial statements as at and for the year ended
June
30, 2007, unaudited interim financial statements as at and for the
three
months ended September 30, 2007, or liabilities and obligations incurred
in the ordinary course of business consistent with past practice
and
attributable to the period since September 30, 2007, which are not
either
individually or in the aggregate material to the Company or its
Subsidiaries, taken as a whole.
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(h)
|
Absence
of Certain Changes or Events. Since September 30, 2007,
except as contemplated by this Agreement and except as has been disclosed
in the Company's Disclosure Documents filed prior to the date of
this
Agreement or in the Data Room
Information:
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(i)
|
each
of the Company and its Subsidiaries has conducted its business only
in the
ordinary course of business consistent with past
practice;
|
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(ii)
|
no
liability or obligation of any nature (whether absolute, accrued,
contingent or otherwise) material to the Company and its Subsidiaries,
taken as a whole, has been incurred other than in the ordinary course
of
business consistent with past
practice;
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(iii)
|
there
has not been any Material Adverse Effect with respect to the Company;
and
|
|
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(iv)
|
as
of the date of this Agreement, there are no material change reports
filed
on a confidential basis with any Government Authority which remain
confidential.
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|
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(i)
|
Disclosure. The
Company has not failed to disclose in the Company's Disclosure Documents
or in the Data Room Information, any information regarding any event,
circumstance or action taken or failed to be taken since September
30,
2007 within the knowledge of the Company as at the date of this Agreement
which could reasonably be expected to have a Material Adverse Effect
on
the Company.
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|
|
(j)
|
Compliance. Except
for any conflicts, defaults or violations that could not, individually
or
in the aggregate (taking into account the impact of any cross defaults),
reasonably be expected to have a Material Adverse Effect on the Company,
none of the Company nor its Subsidiaries is in conflict with, or
in
default (including cross defaults) under or in violation
of:
|
D-4
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|
(i)
|
its
constating documents or any resolutions of its directors or
Shareholders;
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|
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(ii)
|
any
applicable Laws or any order, permit, judgement or decree applicable
to it
or by which any of its properties or assets is bound or affected;
or
|
|
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(iii)
|
any
note, bond, mortgage, indenture, contract, licence, permit or government
grant or any agreement, arrangement or understanding to which it
is a
party or by which any of its properties or assets is bound or
affected.
|
Except
as disclosed in the Company Disclosure Letter, none of the Company or any of
its
Subsidiaries has received any notice of any complaint, investigation, proceeding
or action pending or threatened which involve allegations of non-compliance
with
applicable Laws. The Company and its Subsidiaries own, possess or
have obtained and are in compliance in all material respects with, all permits,
approvals, licences, consents, certificates, registrations or similar
authorizations necessary to conduct their business as now conducted except
where
failure to own, possess, have obtained or be in compliance would not have a
Material Adverse Effect on the Company and its Subsidiaries, taken as a
whole.
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|
(k)
|
Property. Each
of the Company and its Subsidiaries has good and sufficient right
and
title to or is entitled to the benefits of all of its properties
and
assets (real and personal, tangible and intangible, including leasehold
interests) including all the properties and assets reflected in the
balance sheet forming part of the financial statements referred to
in
paragraph (f) above, except as indicated in the notes thereto, together
with all additions thereto and less all dispositions thereof in the
ordinary course of business consistent with past practice, and such
properties and assets are not subject to any Encumbrance or
defect in title of any kind except as is reflected in the balance
sheets
forming part of such financial statements and in the notes thereto,
except
where the failure to have such title, or the existence of such Encumbrance
or defects in title, individually or in the aggregate, would not
have a
Material Adverse Effect on the Company, and except as disclosed in
the
Company Disclosure Letter or the Company's Disclosure
Documents. Each of the Company and its Subsidiaries may enter
into and upon and hold and enjoy the properties owned or leased by
them
for the residue of such properties' respective terms for their own
use and
benefit without any lawful interruption of or by any other
person.
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(l)
|
Mineral
Reserves and Resources. The proven and probable mineral
reserves and indicated, inferred and measured mineral resources for
the
mineral properties in which the Company or its Subsidiaries holds
an
interest, as set forth in the Company's Disclosure Documents, were
established and disclosed in accordance with sound mining, engineering,
geoscience and other applicable industry standards and practices,
and in
accordance with requirements of
National
|
D-5
Instrument
43-101, Standards of Disclosure for Mineral Projects and were, at such date,
true and correct in all material respects. There has been no
reduction in the aggregate amount of estimated mineral reserves or estimated
mineral resources of the Company and its Subsidiaries, taken as a whole, from
the amounts disclosed in the Company's Disclosure Documents.
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|
(m)
|
Mining
Concessions and Lands.
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|
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(i)
|
The
Company and/or its Subsidiaries are the legal and/or beneficial owner
of
all right, title and interest in and to each mining concession, claim,
lease, licence, permit or other right to explore for, exploit, develop,
mine or produce minerals or any interest therein identified in the
Data
Room Information ("Concessions") and all interests in
real property, including licenses, leases, rights of way, surface
rights,
easements or other real property interests (but excluding Concessions)
identified in the Data Room Information
("Lands"). Except as disclosed in the Company
Disclosure Letter, each Concession is in good standing and each Concession
and all of the Lands are held by the Company or its Subsidiaries
free and
clear of all Encumbrances or defects in title. The Data Room Information
sets out an up to date, true and accurate map and list in all material
respects of (A) the interests of the Company and its Subsidiaries
in each
of the Concessions and Lands, and (B) the agreement or other document
pursuant to which such Concessions and Lands were acquired by the
Company
or its Subsidiaries, as the case may be. The Company or a Subsidiary
of
the Company, identified in the Data Room Information, is lawfully
authorized to hold the interests in the Concessions and the Lands
set out
therein.
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|
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(ii)
|
To
the best of the Company's knowledge and except as disclosed in the
Company
Disclosure Letter, and applying generally accepted standards in the
mining
industry in Peru:
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|
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(A)
|
each
Concession has been properly located and recorded in compliance with
applicable Laws and is comprised of valid and subsisting mineral
claims in
each case in all material respects;
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|
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(B)
|
the
Company or its Subsidiaries has the exclusive right to deal with
the
Concessions and the Lands;
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|
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(C)
|
no
person other than the Company or its Subsidiaries has any material
interest in the Concessions or the Lands or any right to acquire
any such
interest;
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|
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(D)
|
there
are no earn-in rights, rights of first refusal, royalty rights or
similar
provisions which would materially affect the Company's or its
Subsidiaries' interests in the Concessions or the
Lands;
|
D-6
|
|
(E)
|
neither
the Company nor its Subsidiaries has received any notice, whether
written
or oral, from any Government Authority or any person with jurisdiction
or
applicable authority of any revocation or intention to revoke the
Company's or its Subsidiaries' interests in the Concessions or the
Lands;
|
|
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(F)
|
the
Concessions and Lands are in good standing under applicable Law and
all
work required to be performed has been performed and all Taxes, fees,
expenditures and other payments in respect thereof have been paid
or
incurred and all filings in respect thereof have been made except
where
the failure to pay fees would not reasonably be expected to cause
any of
the Concessions or Lands to no longer be in good standing or cause
a
Material Adverse Effect in respect of the
Company.
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|
|
(iii)
|
The
Company has provided the Offeror with access to copies of all material
exploration information and data within the possession or control
of the
Company and its Subsidiaries, including, without limitation, all
material
geological, geophysical and geochemical information and data (including
all drill, sample and assay results and all maps) and all material
technical reports, feasibility studies and other similar reports
and
studies concerning the Concessions and the Lands, and,
subject to the author's consent, the Company has the sole
right,
title, ownership and right to use all such information, data reports
and
studies, other than the rights of any Governmental
Authority.
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|
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(iv)
|
Except
as disclosed in the Data Room Information, there are no adverse claims,
actions, suits or proceedings that have been commenced or, to the
knowledge of the Company and its Subsidiaries, that are pending or
threatened, against or affecting or which could affect the title
to or
right to explore or develop the Concessions or the Lands, including
the
title to or ownership by the Company or any of its Subsidiaries of
any of
the foregoing, which might involve the possibility of any judgement
or
liability affecting the Concessions and the
Lands.
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|
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(v)
|
To
the best of the Company's knowledge, all work and activities carried
out
in connection with the Concessions and on the Lands by the Company
or its
Subsidiaries or, to the knowledge of the Company and its Subsidiaries,
by
any other person have been carried out in all material respects in
compliance with all applicable Laws, and neither the Company nor
its
Subsidiaries, nor, to the knowledge of the Company and its Subsidiaries,
any other person, has received any notice of any breach of any such
applicable Laws.
|
D-7
|
|
(vi)
|
The
Company and its Subsidiaries have made full disclosure to the Offeror
of
all material facts of which each of Company and its Subsidiaries
has
knowledge relating to the Concessions and the
Lands.
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|
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(n)
|
Tax
Matters.
|
|
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(i)
|
Each
of the Company and its Subsidiaries has filed all tax returns required
to
be filed by it (and such returns are true, complete and correct in
all
material respects), has paid in full on a timely basis all Taxes
that are
imposed under any laws or by any relevant taxing authority that are
due
and payable and has made adequate provision in the financial statements
referred to above for the payment of all Taxes not then due and payable
including all Taxes shown to be payable on the returns or on subsequent
assessments with respect thereto and no other Taxes are payable by
the
Company or its Subsidiaries with respect to the items or time periods
covered by the returns. Each of the Company and its
Subsidiaries has made adequate and timely payment of instalments
of the
Taxes for the taxation period ending on or immediately before the
Expiry
Time. With respect to any taxation period up to and including
the Expiry Time for which tax returns have not yet been filed or
for which
Taxes are not yet due and payable, each of the Company and its
Subsidiaries, has only incurred liabilities for Taxes in the ordinary
course of its business consistent with past practice. Except as
disclosed in writing to the Offeror on or prior to the date of this
Agreement, there are no outstanding waivers of any limitation periods
or
agreements providing for an extension of time for the filing of any
tax
return or the payment of any Taxes. No deficiencies exist or
have been asserted with respect to Taxes of the Company or its
Subsidiaries, neither the Company nor any Subsidiaries is a party
to any
action or proceeding or assessment or collection of Taxes, nor has
any
such event been asserted or threatened against the Company nor its
Subsidiaries or any of their respective assets and, to the best of
the
Company's knowledge, as of the date of this Agreement none of the
Company
or its Subsidiaries is subject to any assessments, penalties or levies
with respect to Taxes that will result in any liability on its part
in
respect of any period ending on or before the Expiry Time in excess
of the
amount provided for in the financial statements referred to
above. Except as disclosed in writing to the Offeror on or
prior to the date of this Agreement, to the knowledge of the Company
and
its Subsidiaries, no audit, investigation, assessment or reassessment
of
Taxes is reasonably anticipated or
imminent.
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|
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(ii)
|
To
the best of the Company's knowledge, the Company and each of its
Subsidiaries has withheld from each payment made to all of its current
and
former officers, directors and employees, and from each other payment
of
any nature made to any person, the amount of all Taxes including,
but
not
|
D-8
limited
to, income tax and other deductions required to be withheld therefrom and has
paid the same to the applicable Government Authority within the time required
under applicable Laws.
|
|
(o)
|
Environmental
Laws. Except as disclosed in the Company’s Disclosure
Documents, the Company and its Subsidiaries (and their respective
businesses and operations):
|
|
|
(i)
|
are,
to the best of the Company's knowledge, in compliance with all applicable
Laws, permits and authorizations relating to human health, natural
resources, hazardous substances or the environment in Peru and in
other
applicable foreign jurisdictions with regulatory jurisdiction over
the
Company or its Subsidiaries (the "Environmental Laws")
and all planning related to the preparation of a feasibility study
for the
Xxxxxx project is being undertaken in accordance with the Equator
Principles, World Bank guidelines and International Finance Corporation
Performance Standards (the "International Standards");
and
|
|
|
(ii)
|
have
obtained all permits and authorizations that are required to carry
on
their respective businesses and operations, as currently carried
on, under
all applicable Environmental Laws and have no reason to believe that
all
other required permits and authorizations will not be issued in a
timely
manner;
|
where
non-compliance with such laws or permits or failure to obtain those permits
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on the Company.
|
|
(p)
|
Environmental
Liability. Except as disclosed in the Company’s Disclosure
Documents that have been filed prior to the date of this Agreement
pursuant to the Applicable Laws, prior to the date of this Agreement
none
of the Company nor its Subsidiaries has, with respect to its businesses
and operations, at any time received any written notice, written
notice of
default, order, summons, or notice of judgment or commencement of
proceedings of any nature related to any breach, liability or remedial
action (or alleged breach, liability or remedial action) arising
under the
Environmental Laws, environmental permits, the International Standards
or
with respect to environmental matters that could reasonably be expected
to
have, individually or in the aggregate, a Materially Adverse Effect
on the
Company and its Subsidiaries and their businesses and operations,
and none
of the Company nor its Subsidiaries have (with respect to such businesses
and operations) any obligation nor have they at any time undertaken
to
remedy nor is the Company or its Subsidiaries aware of, any breach
of, or
liability under, Environmental Laws that have not been duly performed,
which breach or liability could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on the
Company.
|
D-9
|
|
(q)
|
Determinations
by the Board. The board of directors of the Company (after
receiving advice from its legal and financial advisors) has unanimously
(other than directors abstaining from voting by reason of conflict
of
interest or financial interest) determined at its meeting held on
December
5, 2007 that the Offer and the performance by the Company of its
obligations under this Agreement are in the best interests of the
Company
and its Shareholders.
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|
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(r)
|
Books
and Records. The corporate records and minute books of the
Company and its Subsidiaries have been maintained substantially in
accordance with all applicable Laws and are complete and accurate
in all
material respects.
|
|
|
(s)
|
Insurance. Policies
of insurance in force as of the date hereof naming the Company as
insured,
and its Subsidiaries as included insureds, adequately cover all risk
reasonably and prudently foreseeable in the operation and conduct
of their
respective businesses for which, having regard to the nature of such
risk
and the relative cost of obtaining insurance, it is in the opinion
of the
Company, acting reasonably, prudent to seek insurance rather than
provide
for self insurance. All such policies of insurance shall remain
in force and effect and shall not be cancelled or otherwise terminated
as
a result of the transactions contemplated
hereby.
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|
|
(t)
|
Employment
Agreements.
|
|
|
(i)
|
Except
as disclosed in the Data Room Information, neither the Company nor
any
Subsidiaries has any written or oral employment, service or consulting
agreement relating to any one or more individuals, except for oral
employment agreements which are of indefinite term and without any
special
arrangements or commitments with respect to the continuation of employment
or payment of any particular amount upon termination of employment
or
change of control of the Company provided such payments do not exceed
$50,000. Set forth in the Data Room Information is a complete
list setting out the name of each director, officer and employee
of the
Company and its Subsidiaries who is a party to or a participant in
any
written or oral agreement, arrangement, plan, obligation or understanding
providing for severance or termination or other payments in connection
with the termination of the employment or engagement of, or resignation
of, any such person following a change of control of the Company
and a
description and calculation of the entitlements of each such
person.
|
|
|
(ii)
|
Except
as set forth in the Data Room Information, the Company has not declared
or
paid, or committed to declare or pay, any amount to any person in
respect
of a performance or incentive or other bonus or in connection with
the
completion of the Offer or any other transaction contemplated hereby,
that
in each case has not been paid.
|
D-10
|
|
(u)
|
Pension
and Employee Benefits. Except as disclosed to the Offeror
in writing on or prior to the date of this Agreement, neither the
Company
nor any of its Subsidiaries has, or is subject to any present or
future
obligation or liability under, any pension plan, deferred compensation
plan, retirement income plan, stock option or stock purchase plan,
profit
sharing plan, bonus plan or policy, employee group insurance plan,
program
policy or practice, formal or informal, with respect to its
employees.
|
|
|
(v)
|
Material
Contracts. All Contracts material for the business, the
assets or the equity value of the Company and its Subsidiaries, including
each contract set out in the Data Room Information (the "Material
Contracts") to which the Company or any of its Subsidiaries is a
party are in full force and effect, and the Company and such Subsidiaries
are entitled to all rights and benefits thereunder in accordance
with the
terms hereof. True and complete copies of all Material Contracts
are
contained in the Data Room Information. All of the Material Contracts
are
valid and binding obligations of the Company enforceable in accordance
with their respective terms, except as may be limited by bankruptcy,
insolvency, fraudulent transfer and similar laws affecting the creditors’
rights generally and general principles of equity. The Company and
its
Subsidiaries have complied in all material respects with all terms
of such
Material Contracts, have paid all amounts due thereunder, have not
waived
any rights thereunder and no default or breach exists in respect
thereof
on the part of the Company or any of its Subsidiaries, except where
failure to comply or pay or where such waiver, default or breach
would not
have a Material Adverse Effect on the Company and its Subsidiaries,
taken
as a whole. As at the date hereof, the Company has not received
written notice that any party to a Material Contract intends to cancel,
terminate or otherwise modify or not renew such Material Contract,
and to
the knowledge of the Company, no such action has been threatened.
Except
as disclosed in the Data Room Information, neither the Company nor
any of
its Subsidiaries is a party to any Material Contract that contains
any
non-competition obligation or otherwise restricts in any material
way the
business of the Company or any of its Subsidiaries. There are no
third
party consents required under any of the Material Contracts of the
Company
and its Subsidiaries required for the completion of the transactions
contemplated by this Agreement.
|
|
|
(w)
|
Compliance
with Applicable Laws. To the best of its knowledge, the
Company has complied with all applicable Laws in connection with
this
Agreement and the transactions contemplated
hereby.
|
|
|
(x)
|
Non-Arm's
Length Agreements. Other
than:
|
|
|
(i)
|
as
referred to in the Company's Disclosure Documents;
or
|
|
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(ii)
|
as
disclosed in the Company Disclosure
Letter,
|
D-11
there
are no agreements entered into by the Company or its Subsidiaries with any
person (other than the Company or its Subsidiaries) that is not at "arm's
length" with the Company (within the meaning of that expression in the
Income Tax Act (Canada)).
|
|
(y)
|
United
States Applicable Laws.
|
|
|
(i)
|
The
Company is not an investment company registered or required to be
registered under the U.S. Investment Company Act of 1940, as
amended.
|
|
|
(ii)
|
To
the knowledge of the Company, the Company is a "foreign private issuer"
(as such term is defined in Rule 3b-1 under the U.S. Securities
Exchange Act of 1934, as amended (the "Exchange
Act")).
|
|
|
(iii)
|
To
the knowledge of the Company, U.S. holders for purposes of Rule 14d-1(b)
under the Exchange Act hold no more than 40% of the
Shares.
|
|
|
(z)
|
Reporting
Issuer Status. The Company is a reporting issuer or the
equivalent thereof and is not in default under the securities legislation
of Alberta, British Columbia and
Ontario.
|
|
|
(aa)
|
Compliance
with Foreign Corrupt Practices Legislation. There have been
no actions taken or omissions made by the Company or, any of its
Subsidiaries or any of their affiliates which are, to the Company's
knowledge, in violation of the Foreign Corrupt Practices Act of
1977 (United States), the Corruption ofForeign Public
Officials Act (Canada) or any other similar Law of Canada, the United
States and Peru.
|
|
|
(bb)
|
Litigation.
|
|
|
(i)
|
Except
as disclosed in the Company Disclosure Letter, there is no claim,
action,
proceeding or investigation that has been commenced or, to the knowledge
of the Company, threatened against the Company or its Subsidiaries
or
affecting any of its or their property or assets by or before any
Governmental Authority which, if determined adversely to the Company
or
its Subsidiaries would, individually or in the aggregate reasonably
be
expected to have a Material Adverse Effect in respect of the
Company. The Company is not aware of any existing ground on
which any such claim, action, proceeding or investigation might be
commenced with any reasonable likelihood of
success.
|
|
|
(ii)
|
Neither
the Company nor its Subsidiaries is subject to any outstanding judgment,
order, writ, injunction or decree which would reasonably be expected
to
have a Material Adverse Effect in respect of the
Company.
|
|
|
(cc)
|
Full
Disclosure. All information provided to the Offeror in
relation to the Offeror's due diligence requests, including the Data
Room
Information, was
|
D-12
accurate
in all material respects as at its respective date as stated therein or, if
any
Data Room Information is undated, the date of its delivery to the ftp site
for
purposes of the transactions contemplated by this Agreement or to the Offeror
on
a compact disc or in documentary form and no material facts have been omitted
from such information which would make such information misleading.
D-13
