EXHIBIT 10bb
SHARE AND ASSET ACQUISITION AGREEMENT
Between
ANVIL MINING NL
and
ANVIL INTERNATIONAL FINANCE LIMITED
and
GOLDEN STAR RESOURCES LTD
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SHARE AND ASSET ACQUISITION AGREEMENT
TABLE OF CONTENTS
ARTICLE TITLE PAGE
------- ----- ----
1. Interpretation 4
2. Sale 6
3. Purchase Price 7
4. AIFL and Anvil Representations and Warranties 8
5. GSR's Representations and Warranties 12
6. Survival of Representations and Warranties 13
7. Anvil and AIFL's Closing Conditions 13
8. GSR's Closing Conditions 14
9. Termination 15
10. Attornment and Proper Law 15
11. Covenants of GSR 15
12. Notices 16
13. Confidentiality 16
14. Indemnification 17
15. Miscellaneous 17
SCHEDULE TITLE PAGE
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A. BGL Agreements 20
B. BGL Debt 21
C. Deed of Transfer 23
D. Deed of Assignment 26
E. Assignment and Novation Agreement 29
F. BGL Security Documentation 33
G. Certification of Non-Canadian Beneficial Ownership 35
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THIS SHARE AND ASSET ACQUISITION AGREEMENT MADE THE 6TH DAY OF AUGUST, 2001.
AMONG:
ANVIL MINING NL, a company organized and existing under the laws
of Australia having its registered office at Ground Floor, 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxxx 0000, Xxxxxxxxx
(hereinafter referred to as "Anvil")
OF THE FIRST PART
AND:
ANVIL INTERNATIONAL FINANCE LIMITED, a company organized and
existing under the laws of Malta and having its registered office
at 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx
(hereinafter referred to as "AIFL")
OF THE SECOND PART
AND:
GOLDEN STAR RESOURCES LTD., a corporation amalgamated under the
laws of Canada and having its registered office in Vancouver,
Canada and its principal office at 00000 Xxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000-0000, X.X.X.
(hereinafter referred to as "GSR")
OF THE THIRD PART
WHEREAS:
A. Pursuant to a Revised and Restated Agreement dated June 1, 1999,
among Anvil, GSR and a number of vendors, AIFL and Bogoso Holdings
("BH") acquired 90% of the shares of Bogoso Gold Limited ("BGL")
and all of the outstanding debt owed to the vendors by BGL;
B. In addition, GSR and Anvil entered into a Heads of Agreement dated
April 30, 1999 providing for the joint management of the shares
and debt acquired among other things;
C. GSR through its nominee, BH, now wishes to acquire Anvil and
AIFL's interest, as the case may be, in the shares and debts of
BGL and in the above agreements;
D. AIFL wishes to transfer its shares in BGL to GSR through its
nominee, BH and GSR through its nominee, BH wishes to receive the
above shares upon the terms and subject to the conditions set
forth in this Agreement;
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E. Anvil wishes to sell, assign and transfer certain debt it holds to
GSR through its nominee, BH and GSR through its nominee, BH wishes
to acquire the debt upon the terms and subject to the conditions
set forth in this Agreement;
F. Anvil wishes to sell, assign and transfer its interests in the
above agreements to GSR through its nominee, BH and GSR through
its nominee, BH wishes to acquire the interests in the above
agreements upon the terms and subject to the conditions set forth
in this Agreement;
G. GSR has advised Anvil and AIFL that it is its intention that the
shares, debts and interests in the agreements to be sold pursuant
hereto be transferred by Anvil and AIFL at Closing to its nominee,
BH.
NOW, THEREFORE, in consideration of the premises hereto and the covenants,
warranties, representations, agreements and payments herein set forth and
provided for, the parties hereto covenant and agree as follows:
ARTICLE 1.
INTERPRETATION
1.1 In this Agreement, including the premises hereto, this clause and each
Schedule, the words and phrases set forth below shall having the
meaning ascribed thereto, namely:
(a) "Act" means the Canada Business Corporations Act, RSC 1985, c.
C-44 (CA) as amended, together with all regulations promulgated
pursuant thereto;
(b) "Agreement" means this Share and Asset Acquisition Agreement
dated the 6th day of August, 2001 among Anvil, AIFL and GSR, and
the expressions "above", "below", "herein", "hereto", "hereof"
and similar expressions refer to this Agreement;
(c) "AIFL" means Anvil International Finance Limited, a corporation
organized and existing under the laws of Malta;
(d) "Anvil" means Anvil Mining NL, a corporation organized and
existing under the laws of Australia;
(e) "BGL" means Bogoso Gold Limited, a corporation organized and
existing under the laws of the Republic of Ghana;
(f) "BGL Agreements" means all of Anvil's entire right, title and
interest in and to the agreements more particularly described in
Schedule "A";
(g) "BGL Assets" means collectively all of the interests whatsoever
of Anvil and AIFL, as the case may be, in the BGL Shares, BGL
Agreements and BGL Debt;
(h) "BGL Debt" means the indebtedness of BGL to Anvil pursuant to
the agreements listed in Schedule B together with all accrued
interest, expenses and other monies owed by BGL to Anvil
pursuant to such agreements which, as of the close of business
on June 30, 2001, in the aggregate amounted to 22.2% of the
total indebtedness of BGL to GSR and Anvil of $28,898,200, which
equals $6,415,400;
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(i) "BGL Security Documentation" means the agreements with respect
to the BGL Debt set forth in Schedule "F";
(j) "BGL Shares" means 156,586 Class "A" shares of no par value of
BGL held by AIFL;
(k) "BH" means Bogoso Holdings, a corporation incorporated under the
laws of the Cayman Islands;
(l) "Business" means the business presently and heretofore carried
on by BGL as a going concern;
(m) "Business Day" means a week day, excluding all statutory
holidays in the USA, Canada, Australia or Ghana;
(n) "Closing" means the transfer of the BGL Assets and the payment
of the Purchase Price and the completion of all matters
incidental thereto;
(o) "Closing Date" means 4:00 p.m., Calgary time, on August 20,
2001, or such later date as the parties agree in writing;
(p) "DEG" means DEG-Deutsche Investitions und
Entwicklungsgcsellschaft mbH, a development finance institution
organized and existing under the laws of the Federal Republic of
Germany;
(q) "Effective Date" means 12:01 a.m., Denver time, on August 20,
2001 for the Closing, or such later date as the parties may
agree in writing;
(r) "Encumbrance" means a mortgage, charge, pledge, lien, option,
restriction, claim, equity, right of first refusal, right of
pre-emption, third-party right or interest, other encumbrance or
security interest of any kind, or another type of preferential
arrangement (including, without limitation, a title transfer or
retention arrangement) having similar effect;
(s) "GSR" means
Golden Star Resources Ltd., a corporation
amalgamated under the Act;
(t) "GSR Shares" means an aggregate of 3,000,000 common shares of
GSR issued to AIFL and Anvil from the treasury of GSR at a
deemed price of $0.40 per common share;
(u) "IFC" means the International Finance Corporation, an
international organization established by articles of agreement
among its member countries;
(v) "Place of Closing" means the offices of Field Xxxxxxxx Perraton
located at 0000 Xxxxx Xxxxxxxx Xxxxxx, 000 - 0xx Xxxxxx X.X.,
Xxxxxxx, XX, Xxxxxx;
(x) "Purchase Price" shall have the meaning attributed to it in
Article 3.1;
(y) "Regulatory Approvals" means the approvals for the transactions
contemplated herein, required from all regulatory bodies
including any stock exchange, the United States Securities and
Exchange Commission or any state authority having jurisdiction
over securities matters generally.
1.2 Appended hereto are the following Schedules:
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Xxxxxxxx "X" - XXX Agreements
Schedule "B" - BGL Debt
Schedule "C" - Deed of Transfer
Schedule "D" - Deed of Assignment
Schedule "E" -
Assignment and Novation Agreement
Schedule "F" BGL Security Documentation
Schedule "G" Certificate
1.3 Wherever any provision of any Schedule to this Agreement conflicts with
any provision in the body of this Agreement, the provisions of the body
of this Agreement shall prevail. References herein to a Schedule shall
mean a reference to the applicable Schedule to this Agreement.
References in any Schedule to the "Agreement" shall mean a reference to
this Agreement. References in any Schedule to another Schedule shall
mean a reference to a Schedule to this Agreement.
1.4 References herein to a clause shall mean a reference to a clause within
the body of this Agreement.
1.5 The headings of Articles, clauses and subclauses herein and in the
Schedules are inserted for convenience of reference only and shall not
affect or be considered to affect the construction of the provisions
hereof.
1.6 In this Agreement, words importing persons include corporations and
vice versa, words importing the masculine gender include the feminine
and neuter genders and vice versa, and words importing the singular
include the plural and vice versa.
1.7 All amounts of money which are referred to in this Agreement are
expressed in lawful money of the United States of America unless
otherwise specified.
ARTICLE 2.
SALE
2.1 AIFL agrees to sell and convey the BGL Shares it holds and GSR through
its nominee, BH, agrees to purchase and receive the BGL Shares held by
AIFL, all in accordance with and subject to the terms and conditions
set forth in the Agreement.
2.2 From time to time after the Closing Date, AIFL shall execute and
deliver or cause to be executed and delivered to GSR, such instruments
of sale, transfer, conveyance, assignment and delivery, consents,
assurances, powers of attorney and other instruments as may be
reasonably requested by counsel for GSR, in addition to those the
delivery of which are required at the Closing, in order to vest in
GSR's nominee, BH, all right, title and interest of AIFL in and to the
BGL Shares in order to carry out the purpose and intent of this
Agreement, at no cost to AIFL. In that regard, the parties will enter
into the form of deed of transfer attached hereto as Schedule "C" at
Closing.
2.3 Anvil hereby agrees to sell and convey the BGL Debt and GSR through its
nominee, BH, agrees to purchase and receive the BGL Debt, all in
accordance with and subject to the terms and conditions set forth in
the Agreement.
2.4 From time to time after the Closing Date, Anvil shall execute and
deliver or cause to be executed and delivered to GSR, such instruments
of sale, transfer, conveyance, assignment and delivery, consents,
assurances, powers of attorney and other instruments as may be
reasonably requested by counsel for
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GSR, in addition to those the delivery of which are required at the
Closing, in order to vest in GSR's nominee, BH all right, title and
interest of Anvil in and to the BGL Debt in order to carry out the
purpose and intent of this Agreement, at no cost to Anvil. In that
regard, the parties will enter into the form of deed of assignment
attached hereto as Schedule "D" at Closing.
2.5 Anvil hereby agrees to assign, transfer and convey the BGL Agreements
and GSR through its nominee, BH agrees to purchase and receive the BGL
Agreements, all in accordance with and subject to the terms and
conditions set forth in the Agreement.
2.6 From time to time after the Closing Date, Anvil shall execute and
deliver or cause to be executed and delivered to GSR, such instruments
of sale, transfer, conveyance, assignment and delivery, consents,
assurances, powers of attorney and other instruments as may be
reasonably requested by counsel for GSR, in addition to those the
delivery of which are required at the Closing, in order to vest in
GSR's nominee, BH, all right, title and interest of Anvil in and to the
BGL Agreements in order to carry out the purpose and intent of this
Agreement, at no cost to the Anvil. In that regard, the parties will
enter into the form of
assignment and novation agreement attached
hereto as Schedule "E" at Closing.
ARTICLE 3.
PURCHASE PRICE
3.1 (a) The Purchase Price to be paid by GSR to AIFL for the BGL
Shares is $1.00 payable by GSR in cash on the Closing Date.
(b) The Purchase Price to be paid by GSR to Anvil for the BGL Debt
and BGL Agreements held by Anvil is One Million Two Hundred
Thousand ($1,200,000) Dollars payable by GSR issuing the GSR
Shares to Anvil on the Closing Date.
3.2 The purchase and sale of BGL Assets contemplated herein shall be
effective as of the Effective Date. Possession, beneficial ownership
and risk of and title to the BGL Shares shall pass from AIFL to GSR's
nominee, BH on and be effective on the Closing Date. Possession,
beneficial ownership and risk of and title to the BGL Debt and BGL
Agreements shall pass from Anvil to GSR's nominee, BH on and be
effective on the Closing Date.
3.3 Anvil and AIFL each acknowledge and agree that:
(a) the GSR Shares are issued pursuant to Ontario Securities
Commission Policy 1.5 and will be legended as follows:
"The Common Shares represented hereby are subject to a
hold period and are not transferable until 90 days after
the Closing date.
and
(b) the issuance of the GSR Shares is subject to the policies, rules
and by-laws of any regulatory body including The Toronto Stock
Exchange. Anvil and AIFL agree to be bound by and comply with
all of the policies, rules and by-laws of any regulatory body in
regard to the GSR Shares, and to comply with all laws and
securities regulations in respect of the trading of the GSR
Shares.
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3.4 GSR shall cause to be delivered to Anvil at Closing an interim
certificate or certificates representing all the GSR Shares and will
cause the GSR Shares to be duly recorded on the books of GSR in the
name of Anvil. Anvil acknowledges that the original certificate or
certificates representing all the GSR Shares will be held by GSR, and
will be released upon the receipt from Anvil of one manually signed and
completed copy of the certificate attached hereto and marked as
Schedule "G". GSR will take all other action required to constitute and
evidence Anvil as the holder of the GSR Shares. The delivery of such
GSR Shares shall be against receipt of the BGL Debt and BGL Agreements
from Anvil.
ARTICLE 4.
AIFL AND ANVIL REPRESENTATIONS AND WARRANTIES
4.1 To induce GSR to enter into this Agreement and complete the
transactions contemplated herein, AIFL and Anvil hereby jointly and
severally represent and warrant to and in favour of GSR now as provided
in Article 4, which representations and warranties will be true and
correct as at the date hereof and as of the Closing Date.
4.2 (a) AIFL is the only legal and beneficial owner of the BGL shares.
The BGL Shares held by AIFL are free of all security interests,
pledges, claims, mortgages, charges, liens, other encumbrances,
charges or restrictions of any kind other than the Government of
Ghana's right to its carried interest and the pledge of 156,586
BGL Shares to Bogoso Holdings, and no other person, firm or
corporation has any agreement, option or right capable of
becoming an agreement for the purchase from AIFL of any of the
BGL Shares held by AIFL except as provided herein, and AIFL is
entitled to sell the BGL Shares it holds as provided in this
Agreement;
(b) Anvil is the only legal and beneficial owner of the BGL Debt and
BGL Agreements. The BGL Debt and BGL Agreements held by Anvil
are free of all security interests, pledges, claims, mortgages,
charges, liens, other encumbrances, charges or restrictions of
any kind, other than the pledge to GSR, and no other person,
firm or corporation has any agreement, option or right capable
of becoming an agreement for the purchase from Anvil of any of
the BGL Debt and BGL Agreements held by Anvil and Anvil is
entitled to sell the BGL Debt and BGL Agreements it holds as
provided in this Agreement.
4.3 (a) AIFL has good right, full power and absolute authority to
bargain, sell, transfer and assign the BGL Shares to GSR or its
nominee, BH, upon receipt of approval from the Ghana Government
and the Bank of Ghana, for the purposes and in the manner
contemplated by this Agreement;
(b) Anvil has good right, full power and absolute authority to
bargain, sell, transfer and assign the BGL Debt and BGL
Agreements to GSR or its nominee, BH, for the purposes and in
the manner contemplated by this Agreement.
4.4 (a) AIFL has done no act or thing, nor is aware of any act or thing
having been done, whereby any of its interest in and to the BGL
Shares may be cancelled or determined;
(b) Anvil has done no act or thing, nor is aware of any act or thing
having been done, whereby any of its interest in and to the BGL
Debt and BGL Agreements may be cancelled or determined.
4.5 (a) There are no actions or lawsuits in existence nor is AIFL aware
of any pending or threatened claim, action or lawsuit against or
with respect to the BGL Shares or AIFL's interest therein;
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(b) There are no actions or lawsuits in existence nor is Anvil aware
of any pending or threatened claim, action or lawsuit against or
with respect to the BGL Debt and BGL Agreements or Anvil's
interest therein.
4.6 (a) No action or proceeding has been commenced or filed by or
against Anvil or which seeks or may lead to receivership,
bankruptcy, a consumer proposal or any other similar proceeding
in respect of Anvil, the adjustment, compromise or composition
of claims against Anvil or the appointment of a trustee,
receiver, liquidator, custodian, or other similar officer for
Anvil or any portion of its assets. No such action or proceeding
has been authorized or is being considered by or on behalf of
Anvil and no creditor or equity security holder of Anvil has
threatened to commence or advise that it may commence, any such
action or proceeding;
(b) No action or proceeding has been commenced or filed by or
against AIFL or which seeks or may lead to receivership,
bankruptcy, a consumer proposal or any other similar proceeding
in respect of AIFL, the adjustment, compromise or composition of
claims against AIFL or the appointment of a trustee, receiver,
liquidator, custodian, or other similar officer for AIFL or any
portion of its assets. No such action or proceeding has been
authorized or is being considered by or on behalf of AIFL and no
creditor or equity security holder of AIFL has threatened to
commence or advise that it may commence, any such action or
proceeding.
4.7 (a) Anvil has all requisite corporate power and authority to enter
into this Agreement and to perform each of Anvil's obligations
under this Agreement;
(b) AIFL has all requisite corporate power and authority to enter
into this Agreement and to perform each of AIFL's obligations
under this Agreement.
4.8 (a) All necessary corporate action has been taken by Anvil to
authorize the execution and delivery by Anvil of this Agreement
and all other agreements and instruments contemplated by this
Agreement;
(b) All necessary corporate action has been taken by AIFL to
authorize the execution and delivery by AIFL of this Agreement
and all other agreements and instruments contemplated by this
Agreement.
4.9 (a) The execution, delivery and performance hereof by AIFL will not
contravene or violate (a) the articles of incorporation or
by-laws of AIFL; (b) any law, rule or regulation to which AIFL
is subject or (c) any judgment, order, writ, injunction or
decree of any court, arbitrator or governmental or regulatory
official, body or authority which is applicable to AIFL; nor
will such execution, delivery or performance violate, be in
conflict with or result in the breach (with or without the
giving of notice or lapse of time, or both) of any term,
condition or provision of, or require the consent of any other
party to, any contract, commitment, agreement, lease, license,
permit, authorization, document or other understanding, oral or
written, to or by which AIFL is a party or otherwise bound or
affected.
(b) The execution, delivery and performance hereof by Anvil will not
contravene or violate (a) the articles of incorporation or
by-laws of Anvil, (b) any law, rule or regulation to which
Anvil is subject or (c) any judgment, order, writ, injunction or
decree of any court, arbitrator or governmental or regulatory
official, body or authority which is applicable to Anvil; nor
will such execution, delivery or performance violate, be in
conflict with or result in the breach (with or without the
giving of notice or lapse of time, or both) of any term,
condition or provision of,
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or require the consent of any other party to, any contract,
commitment, agreement, lease, license, permit, authorization,
document or other understanding, oral or written, to or by which
Anvil is a party or otherwise bound or affected.
4.10 (a) This Agreement has been duly executed and delivered by Anvil and
all documents required hereunder to be executed and delivered by
Anvil shall have been duly executed and delivered, and this
Agreement does and such documents will, constitute legal, valid
and binding obligations of Anvil enforceable in accordance with
their respective terms;
(b) This Agreement has been duly executed and delivered by AIFL and
all documents required hereunder to be executed and delivered by
AIFL shall have been duly executed and delivered, and this
Agreement does and such documents will, constitute legal, valid
and binding obligations of AIFL enforceable in accordance with
their respective terms.
4.11 (a) Anvil has not incurred any obligation or liability contingent or
otherwise, for brokers' or finders' fees in respect of this
transaction for which GSR shall have any obligation or liability
except as disclosed;
(b) AIFL has not incurred any obligation or liability contingent or
otherwise, for brokers' or finders' fees in respect of this
transaction for which GSR shall have any obligation or liability
except as disclosed.
4.12 Anvil acknowledges that the execution of this Agreement and the
delivery to it of the GSR Shares has been or will be made in reliance
upon and is conditional upon the following representations, warranties,
acknowledgements and covenants of Anvil:
(a) it has not received, nor has it requested, nor does it have
any need to receive, any offering memorandum or any other
document (other than any other documents the content of which
is prescribed by statute or regulation) describing the
business and affairs of GSR which has been prepared for
delivery to, and review by, prospective purchasers in order to
assist them in making an investment decision in respect of the
GSR Shares and was not accompanied by any advertisement in
print of the GSR Shares, and it has not become aware of any
advertisement in printed media of general and regular paid
circulation, or on radio or television or the Internet with
respect to the distribution of the GSR Shares;
(b) it has been independently advised as to restrictions with
respect to trading in the GSR Shares imposed by applicable
securities legislation in the jurisdiction in which it
resides, confirms that no representation has been made to it
by or on behalf of GSR with respect thereto, acknowledges that
it is aware of the characteristics of the GSR Shares, the
risks relating to an investment therein and of the fact that
it may not be able to resell the GSR Shares except in
accordance with limited exemptions under applicable securities
legislation and regulatory policy;
(c) it is aware that no prospectus has been filed with any
securities commission in connection with the sale of the GSR
Shares and it is purchasing the GSR Shares pursuant to a
statutory exemption from the prospectus requirements under
applicable securities laws and as a consequence to it wherever
resident: (i) it is restricted from using most of the civil
remedies available under securities legislation; (ii) it may
not receive information that would otherwise be required to be
provided to it under securities legislation; and (iii) GSR is
relieved of certain obligations that would otherwise apply
under securities legislation;
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(d) Anvil is a resident at the place indicated on the face page of
this Agreement;
(e) Anvil is purchasing the GSR Shares as principal for its own
account, not for the benefit of any other person;
(f) Anvil is capable of assessing the proposed investment as a
result of the Anvil's financial or investment experience and
is able to bear the economic loss of its investment;
(g) Anvil has been advised to consult its own legal advisors with
respect to applicable resale restrictions and it is solely
responsible (and GSR is not in any way responsible) for
compliance with applicable resale restrictions;
(h) it is aware that the GSR Shares have not been and will not be
registered under the United States Securities Act of 1933, as
amended (the "U.S. Securities Act"), and that these securities
may not be offered or sold in the United States without
registration under the U.S. Securities Act or compliance with
requirements of an exemption from registration;
(i) it is not a "U.S. Person" (as that term is defined by
Regulation S under the U.S. Securities Act, which definition
includes, but is not limited to, an individual resident in the
United States, an estate or trust of which any executor or
administrator or trustee, respectively, is a U.S. Person and
any partnership or corporation organized or incorporated under
the laws of the United States) and is not acquiring the GSR
Shares for the account or benefit of a U.S. Person or a person
in the United States;
(j) the GSR Shares have not been offered to Anvil in the United
States, and the individuals making the order to purchase the
GSR Shares and executing and delivering this Agreement on
behalf of Anvil were not in the United States when the
transaction was agreed to and this Agreement was executed and
delivered;
(k) it undertakes and agrees that it will not offer or sell the
GSR Shares in the United States unless such securities are
registered under the U.S. Securities Act and the securities
laws of all applicable states of the United States or an
exemption from such registration requirements is available,
and further that it will not resell the GSR Shares, except in
accordance with the provisions of applicable securities
legislation, regulations, rules, policies and orders and stock
exchange rules; and
(l) unless disclosed to GSR in writing prior to the Closing Date,
Anvil is not a "control person" of GSR as defined in the
Securities Act (Ontario) and will not become a "control
person" of GSR, by virtue of the acquisition of the GSR Shares
subscribed for pursuant to this Agreement and does not intend
to act in concert with any other person to form a control
group.
4.13 Anvil further represents, warrants, covenants and agrees:
(a) it is not a resident of Canada or the United States of America
and, if it is purchasing as agent or trustee, no beneficial
purchaser for whom it is acting is a resident of Canada or the
United States of America;
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(b) the Common Shares are not qualified for sale in any jurisdiction
in Canada or the United States of America;
(c) the Common Shares purchased by it hereunder may not be sold and
will not be sold in Canada or to any resident of Canada for the
period of 90 days from the Closing Date (the "Term Date");
(d) the certificates evidencing the Common Shares purchased by it
hereunder will bear a legend referring to the restrictions on
resale described in subparagraph (c) above and the registrar and
transfer agent of the Common Shares will be required to not
register any transfer of the Common Shares purchased by Anvil
hereunder in the name of any resident of Canada for the period
referred to in subparagraph (c) above; and
(e) it complies with the provisions of all applicable securities
legislation in the jurisdiction of its residence and will
provide such evidence of compliance therewith as GSR may
request.
ARTICLE 5.
GSR'S REPRESENTATIONS AND WARRANTIES
5.1 To induce the AIFL and Anvil to enter into this Agreement and complete
the transactions contemplated herein, GSR hereby represents and
warrants to and in favour of AIFL and Anvil, now as provided in Article
5 which representations and warranties shall also have been true and
will be true and correct as at the date hereof and the Closing Date as
the case may be.
5.2 It has been duly incorporated and validly exists as a corporation in
good standing under the laws of its jurisdiction of incorporation.
5.3 It has duly obtained all corporate authorizations for the execution of
this Agreement and for the performance of this Agreement by it, and the
consummation of the transaction herein contemplated by it will not
conflict with or result in any breach of any covenants or agreements
contained in, or constitute a default under, or result in the creation
of any encumbrance under the provisions of the Articles or the
constating documents of it or any shareholders' or directors'
resolution, indenture, agreement or other instrument whatsoever to
which it is a party or by which it is bound.
5.4 The GSR Shares to be issued to Anvil, pursuant to this Agreement, shall
be duly issued as fully paid and non-assessable.
5.5 Except as disclosed in GSR's: (a) 10K filing for the year ended
December 31, 2000; (b) 10Q filing for the three months ended March 31,
2001; and (c) press releases issued to the date hereof, there are no
agreements, arrangements or understandings in force or securities
issued that call for the present or future issue of, or grant to any
person the right to require the issue of, any shares or other
securities in GSR.
5.6 The information made available to Anvil in relation to GSR provides a
true and fair view of GSR, its assets, liabilities and prospects, and
GSR is not in possession of any relevant information which has not been
disclosed to Anvil.
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ARTICLE 6.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
6.1 Notwithstanding anything to the contrary herein expressed or implied,
it is expressly agreed and understood that the covenants,
representations and warranties set forth in Articles 4 and 5 are true
on the date hereof, and the Closing Date, and notwithstanding the
Closing, or deliveries of covenants, representations and warranties in
any other agreements at the Closing, or prior or subsequent thereto, or
investigations by the parties hereto or their counsel, the covenants,
representations and warranties along with all rights of action in
connection therewith, set forth in Articles 4 and 5 shall survive the
Closing for the benefit of the parties hereto for a period of one (1)
year from the Closing Date and shall be deemed to apply to the transfer
of the BGL Assets.
ARTICLE 7.
ANVIL AND AIFL'S CLOSING CONDITIONS
7.1 The obligation of Anvil and AIFL to complete the transfer of the BGL
Assets pursuant to this Agreement is subject to the satisfaction at or
prior to the Closing Date of the following conditions precedent:
(a) all representations and warranties of the GSR contained in this
Agreement shall be true and have been complied with in all
material respects at and as of the date hereof and the Closing
Date, GSR shall have tendered to Anvil and AIFL a certificate
from a senior officer of GSR to such effect, and GSR shall have
performed and satisfied all covenants required by this Agreement
to be performed and satisfied by GSR at or prior to, Closing
Date, or will be caused to occur after the Closing Date;
(b) GSR shall have tendered to AIFL and Anvil the Purchase Price
payable at the Closing Date;
(c) at the Closing Date, no action or proceeding shall have been
instituted or threatened by any one before any court or
governmental agency to obtain damages in respect of this
Agreement and no litigation or proceeding shall be pending or
threatened to restrain, set aside or invalidate the transactions
contemplated by this Agreement;
(d) except as shall have been approved in writing by Anvil, there
shall not have occurred between the date hereof and the Closing
Date any damage to or alteration in or to the GSR Shares
(including, without limitation, an amendment to any agreement or
instrument forming a part thereof) which, in Anvil's reasonable
opinion, would materially adversely affect the value of the GSR
Shares and GSR shall, on the Closing Date, deliver to Anvil a
certificate of a senior officer of GSR, dated as of the Closing
Date, stating that, except as has been approved in writing by
Anvil, no damage or alteration has occurred during such period;
(e) as at the Closing Date, there shall have been obtained the
written consents and approvals, in form and substance
satisfactory Anvil, acting reasonably, of any governmental or
regulatory agency or person whose consent to the transactions,
contemplated herein is required.
7.2 The forgoing conditions contained in clauses 7.1 shall be for the
benefit of Anvil and AIFL, and may, without prejudice to any rights of
Anvil and AIFL hereunder, be waived by Anvil and AIFL in writing, in
whole or in part, at any time. In case any of the said conditions shall
not be complied with through no act, default or omission of Anvil and
AIFL or waived by Anvil and AIFL at or before the Closing Date, Anvil
and AIFL, may rescind and terminate this Agreement by written notice to
GSR.
-13-
ARTICLE 8.
GSR'S CLOSING CONDITIONS
8.1 The obligation of GSR to complete the transfer of the BGL Assets
pursuant to this Agreement is subject to the satisfaction at or prior
to the Closing Date of the following conditions precedent:
(a) all covenants, representations and warranties of Anvil and AIFL
contained in this Agreement shall be true and have been complied
with in all material respects at and as of the date hereof and
the Closing Date and each of Anvil and AIFL shall have tendered
to GSR a certificate (in the case of a corporation a certificate
of a senior officer) of each of Anvil and AIFL, as the case may
be, dated as of the Closing Date to such effect, and Anvil and
AIFL shall have performed and satisfied all covenants required
by this Agreement to be performed and satisfied by Anvil and
AIFL at or prior to the Closing Date;
(b) except as shall have been approved in writing by GSR, there
shall not have occurred between the date hereof and the Closing
Date any damage to or alteration in or to the BGL Assets
(including, without limitation, an amendment to any agreement or
instrument forming a part thereof) which, in GSR's reasonable
opinion, would materially adversely affect the value of the BGL
Assets and each of Anvil and AIFL shall, on the Closing Date,
deliver to GSR a certificate of a senior officer of each of
Anvil and AIFL, dated as of the Closing Date, stating that,
except as has been approved in writing by GSR, no damage or
alteration has occurred during such period;
(c) the BGL Assets shall be free of any and all encumbrances, liens,
charges and demands of whatsoever nature except as disclosed
herein;
(d) no action or proceeding shall have been instituted or threatened
by any one before any court or governmental agency to obtain
damages in respect of this Agreement or to restrain or prohibit
the consummation of the transactions contemplated herein;
(e) GSR shall have received the approval of its board of directors
to the execution and delivery of this Agreement and to the
transactions contemplated herein;
(f) GSR shall have received the approval of its shareholders to the
execution and delivery of this Agreement and to the transactions
contemplated herein;
(g) as at the Closing Date, there shall have been obtained the
written consents and approvals, in form and substance
satisfactory GSR, acting reasonably, of any governmental or
regulatory agency or person whose consent to the transactions,
contemplated herein is required;
(h) the board of directors of BGL shall have approved the transfer
of the BGL Shares from AIFL to GSR;
(i) on the Closing Date, Anvil and AIFL shall make available to GSR
the written resignation of Xxxxxxx Xxxxxx Xxxxxx, as a director
of BGL, effective as of the Closing Date.
8.2 The foregoing conditions contained in clause 8.1 shall be for the
benefit of GSR and may, without prejudice to any of the rights of GSR
hereunder, be waived by GSR in writing, in whole or in part, at any
time, provided GSR may not waive the existence and operation of any
preferential right to
-14-
purchase any of the BGL Assets. In case any of the said conditions
shall not be complied with through no act, default or omission of GSR
or waived by GSR at or before the Closing Date, GSR may rescind and
terminate this Agreement by written notice to Anvil or AIFL, as the
case may be.
ARTICLE 9.
TERMINATION
9.1 In the event that this Agreement is terminated pursuant to any of
clauses 7.2 or 8.2, each party hereto shall be released from all
obligations hereunder and each party hereto shall take all reasonable
action to return each of the other parties hereto to the position
relative to the BGL Assets which such party occupied prior to the
execution hereof, it being understood that Anvil, AIFL and GSR will
each bear all costs incurred by it prior to such termination.
ARTICLE 10.
ATTORNMENT AND PROPER LAW
10.1 This Agreement shall be exclusively subject to and be interpreted,
construed and enforced in accordance with the laws in effect in the
State of
Colorado. Each party hereto irrevocably attorns to the
exclusive jurisdiction of the courts of the State of
Colorado and all
courts of appeal therefrom.
ARTICLE 11.
COVENANTS OF GSR
11.1 GSR covenants and agrees with Anvil and AIFL, until the purchase and
sale of the BGL Assets becomes effective, and except with the prior
written approval of Anvil and AIFL;
(a) not to declare, pay or set aside in respect of its capital any
dividends or other distribution or payment by way of return of
capital, and not to pay any stock dividend or make any
reclassification in respect of its outstanding shares;
(b) not to purchase or otherwise acquire for any consideration any
outstanding shares of its capital stock;
(c) not to alter or amend, in any way, its articles as the same
existed at the date of this Agreement, and to maintain its
corporate existence under the laws of Canada;
(d) to use its best efforts to obtain all necessary consents,
assignments, waivers or amendments or terminations to any
instruments or take such other measures as may be appropriate to
fulfil its obligations under and to carry out the transactions
contemplated by this Agreement; and
(e) not to engage in any business, enterprise or other activity
materially different from that carried on by it at the date of
this Agreement or to enter into any transaction or incur any
obligation not in the ordinary course of business or any
transaction with a party or parties with whom GSR does not deal
at arm's length
(f) to advise Anvil and AIFL of any material adverse effect on GSR
or any circumstances which are likely to result in such an
effect on the GSR Shares.
-15-
ARTICLE 12.
NOTICES
12.1 Any notice, request, claim, demand, waiver, consent, approval or other
communication which is required or permitted hereunder shall be in
writing and shall be deemed given if delivered personally or sent by
telegram, by registered or certified mail, postage prepaid, telecopied,
facsimiled, or by recognized courier service, as follows:
(a) IF TO AIFL AT:
ANVIL INTERNATIONAL FINANCE LIMITED
Xxxxxx Xxxxx 000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxxx 6010
Australia
Attention: Xxxxxxx X. Xxxxxx, Executive Director
(b) IF TO ANVIL:
Anvil Mining NL
Xxxxxx Xxxxx 000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxxx 6010
Australia
Attention: Xxxxxxx X. Xxxxxx, Executive Director
(c) IF TO GSR:
GOLDEN STAR RESOURCES LTD.
00000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000-0000 X.X.X.
Attention: Xxxxx Xxxxxx, Chief Financial Officer
or to such other address as the person to whom notice is to be given
may have specified in a notice duly given to the sender as provided
herein. Such notice, request, claim, demand, waiver, consent, approval
or other communication shall be deemed to have been given as of the
date so delivered, telegraphed, telecopied, facsimiled, mailed or
dispatched and, if given by any other means, shall be deemed given only
when actually received by the addressees.
ARTICLE 13.
CONFIDENTIALITY
13.1 The parties to this Agreement shall keep confidential all books,
records, files and other information supplied by any party to one of
the other parties or to their employees, agents or representative in
connection with this Agreement including all analyses, reports, studies
or other documents prepared by a party or its employees, agents or
representatives, which contain information from, or otherwise reflects
such books, records, files or other information. The parties shall not
and shall ensure that their employees, agents or representatives do not
disclose, divulge, publish, transcribe, or transfer such
-16-
information, all or in part, without the prior written consent of the
other parties, which may not be arbitrarily withheld and which shall
not apply to such information or any part thereof to the extent that:
(a) prior to its receipt by a party such information was already in
the possession of such party or its employees, agents or
representatives; or
(b) in respect of such information required to be publicly disclosed
pursuant to applicable securities or corporate laws.
ARTICLE 14.
INDEMNIFICATION
14.1 Anvil and AIFL hereby jointly and severally covenant and agree with GSR
and GSR hereby covenants and agrees with each of Anvil and AIFL (the
party or parties so covenanting and agreeing to indemnify another party
or parties hereinafter in this article referred to as the "Indemnifying
Party" and the party or parties so to be indemnified being hereinafter
called the "Indemnified Party") to indemnify and save harmless the
Indemnified Party, effective as and from the Closing, from and against
any claims, demands, actions, causes of action, damages, loss, costs,
liability or expense (hereinafter in this article called "Claims")
which may be made or brought against the Indemnified Party and/or which
it may suffer or incur as a result of, in respect of, or arising out of
any non-fulfilment of any covenant or agreement on the part of the
Indemnifying Party under this Agreement or any incorrectness in or
breach of any representation or warranty of the Indemnifying Party
contained herein or in any certificate or other document furnished by
the Indemnifying Party pursuant hereto.
14.2 The indemnity provided in this Article 14 shall survive the completion
of the sale and purchase of the BGL Assets herein provided for, and
notwithstanding such completion such covenants shall continue in full
force and effect without limitation as to time.
ARTICLE 15.
MISCELLANEOUS
15.1 This Agreement shall supersede and replace any and all prior agreements
between the parties hereto relating to the sale and purchase of the BGL
Assets and may be amended only by written instrument signed by all
parties hereto.
15.2 This Agreement (including all Schedules hereto) comprises the entire
agreement between the parties hereto. There is no representation,
warranty or collateral agreement relating to the sale and purchase of
the BGL Assets except as expressly set forth herein.
15.3 Anvil, AIFL and GSR shall cooperate with each other in releasing
information concerning this Agreement and the transactions contemplated
herein, and shall furnish to and discuss with the other party drafts of
all press and other releases prior to publication. Nothing contained
herein shall prevent any party at any time from furnishing information
to any governmental agency or regulatory authority or to the public if
required by applicable law. Nothing herein contained shall prevent
Anvil and AIFL from furnishing information relating to the said
transaction nor the identity of GSR in connection with preferential
rights of purchase, rights of first refusal and similar restrictions.
15.4 GSR makes no representations regarding the tax consequences to Anvil
and AIFL of the transactions contemplated by this Agreement. Anvil and
AIFL acknowledge that they have been advised of the
-17-
tax consequences of the transactions contemplated by this Agreement by
their own tax advisers, and that they are relying on their tax advisers
in determining their respective tax consequences in connection with the
transactions contemplated in this Agreement.
15.5 Time shall, in all respects, be of the essence in this Agreement.
Notwithstanding that time is of the essence, should the parties fix new
dates for the performance of any of their respective obligations
hereunder, time shall again be of the essence of this Agreement.
15.6 This Agreement shall be binding upon and shall enure to the benefit of
the parties hereto and their respective successors, receivers, receiver
managers, trustees and permitted assigns.
15.7 No party may assign its rights or obligations under this Agreement
other than the assignment of GSR's rights and obligations under this
Agreement to BH without the prior written consent of all other parties
hereto, which consent will not be unreasonably withheld.
15.8 Should any provision or condition of this Agreement become illegal or
not enforceable, it or they shall be considered separate and severable
from the Agreement and the remaining provisions and conditions of this
Agreement shall remain force and be binding upon the parties hereto as
though the provisions or conditions had never been included.
15.9 GSR will be responsible for any stamp duties payable as a result of
this Agreement.
15.10 Each party shall be responsible for its own legal and audit fees and
other charges incurred in connection with the purchase and sale of the
BGL Assets, the preparation of this Agreement and all negotiations
between the parties and the consummation of the transactions
contemplated hereby.
15.11 All covenants and agreements contained herein shall survive the closing
of the purchase and sale of shares herein provided for and
notwithstanding such closing, continue and remain in full force and
effect unless the same shall have been waived by the parties hereto on
or before the Closing Date. The provisions of this article shall not
apply to the representations and warranties referred to in Articles 4
and 5.
-18-
15.12 This Agreement may be executed in several counterparts, each of which
so executed shall be deemed to be an original, and such counterparts
together shall constitute one and the same instrument and,
notwithstanding their date of execution, shall be deemed to bear the
date as of the date above written. Execution and delivery of
counterparts of this Agreement by facsimile by any party shall be
binding on all parties to this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first above written.
ANVIL MINING NL
Per:
--------------------------------
ANVIL INTERNATIONAL FINANCE LIMITED
Per:
--------------------------------
GOLDEN STAR RESOURCES LTD.
Per:
--------------------------------
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SCHEDULE "A" TO THE SHARE AND ASSET ACQUISITION AGREEMENT DATED
AUGUST 6, 2001, AMONG ANVIL MINING NL, ANVIL INTERNATIONAL
FINANCE LIMITED AND
GOLDEN STAR RESOURCES LTD.
BGL AGREEMENTS
1. Revised and Restated Agreement for the Sale and purchase of Debt and
90% of the Shares of Bogoso Gold Limited dated June 1, 1999 among
Anvil, GSR and the vendors.
2. Heads of Agreement dated April 30, 1999 between Anvil and GSR.
3. Two Secured Notes dated September 30, 1999 by which Anvil International
Finance Limited promise to pay
Golden Star Resources Ltd. the amounts
of $1,443,000.22 and $487,901.80, secured by the Pledge Agreement.
4. Pledge of Shares Agreement between Anvil International Finance Limited
and Bogoso Holdings, dated February 24, 2000.
-20-
SCHEDULE "B" TO THE SHARE AND ASSET ACQUISITION AGREEMENT DATED
AUGUST 6, 2001, AMONG ANVIL MINING NL, ANVIL INTERNATIONAL
FINANCE LIMITED AND
GOLDEN STAR RESOURCES LTD.
BGL DEBT
PART 1 - DEG LOAN DOCUMENTATION
1. A loan agreement dated 8 January 1990 made between DEG and BGL (the
"DEG Loan Agreement") pursuant to which DEG agreed, on the terms and
subject to the conditions stated therein, to make available to BGL a
loan of up to DM 25,000,000 ("DEG Loan") to finance the Project (as
defined therein).
2. A rescheduling agreement dated 4 March 1994 made between BGL and DEG
(the "Rescheduling Agreement"), pursuant to which DEG agreed, on the
terms and subject to the conditions therein, to amend the terms and
conditions of the DEG Loan under the DEG Loan Agreement.
PART 2 - IFC LOAN DOCUMENTATION
1. A loan agreement dated 19 December 1989 made between BGL and IFC ("IFC
Investment Agreement") pursuant to which IFC agreed, on the terms and
subject to the conditions stated therein, to lend to BGL the sum of
US$43,000,000 (the "IFC Loan") to finance the Project (as defined
therein).
2. A rescheduling agreement dated 4 March 1994 (herein called the "IFC
Rescheduling and Amendatory Agreement") made between IFC and BGL
pursuant to which IFC agreed, on the terms and subject to the
conditions therein, to amend the terms and conditions of the IFC Loan
and the IFC Investment Agreement.
PART 3 - SHAREHOLDER ADVANCES DOCUMENTATION
1. An agreement (the "Shareholders Financing Agreement") dated 27 November
1989 made between BGL, the Republic of Ghana, IFC, the Central Bank,
Billiton B.V. and Sikaman Gold Resources Limited as amended and
supplemented by a certain supplemental agreement (the "Supplemental
Agreement") dated 18 January 1990 between the same parties, pursuant to
which, inter alia, IFC agreed to make available to BGL, and BGL agreed
to borrow, additional loans comprising Shareholder Advances (as defined
therein) and, if necessary, Shareholder Deficiency Advances (as defined
therein).
2. An amendment agreement (the "Revised Shareholders Financing Agreement")
dated 22 March 1994 made between BGL, IFC, DEG, the Republic of Ghana,
the Bank of Ghana and Billiton B.V. pursuant to which Shareholders (as
defined therein) agreed, on the terms and subject to the conditions
therein, to amend the terms and conditions applicable to the
Shareholder Advances and Shareholder Deficiency Advances under the
Shareholders Financing Agreement (as amended and supplemented by the
Supplemental Agreement).
-21-
3. Deed of Assignment dated September 30, 1999 between DEG, Anvil and
Bogoso Holdings.
4. Deed of Assignment dated September 30, 1999 between IFC, Anvil and
Bogoso Holdings.
PART 4 - HEADS OF AGREEMENT
1. Under the Heads of Agreement dated April 30, 1999 between Anvil and
GSR, GSR advanced to Anvil its share of the Acquisition Costs, as
defined therein, pursuant to the original acquisition by Anvil and GSR
of the BGL Shares and BGL Debt.
-22-
SCHEDULE "C" TO THE SHARE AND ASSET ACQUISITION AGREEMENT DATED
AUGUST 6, 2001, AMONG ANVIL MINING NL, ANVIL INTERNATIONAL
FINANCE LIMITED AND
GOLDEN STAR RESOURCES LTD.
DEED OF TRANSFER
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DEED OF TRANSFER
DEED OF TRANSFER is made this o day of o, 2001
BETWEEN
ANVIL INTERNATIONAL FINANCE LIMITED, a company organized and
existing under the laws of Malta and having its registered
office at 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx (the
"TRANSFEROR") of the one part
AND
BOGOSO HOLDINGS ("BH") (THE "ASSIGNEE"), a company
incorporated under the laws of Cayman Islands and having its
registered office at 0xx Xxxxx, Xxxxxxxxxxxx Xxxxx, Xxxx
Xxxxxx, P.O. Box 219G, Georgetown, Grand Cayman, Cayman
Islands
WHEREAS
A. Bogoso Gold Limited (the "COMPANY"), previously known as "Canadian
Bogosu Resources Ltd.", was incorporated in the Republic of Ghana on
June 12, 1986 as a limited company under the Companies Code 1963
(Ghana).
B. By a share and asset acquisition agreement dated August 6, 2001 (the
"PURCHASE AGREEMENT"), the Transferor has agreed to sell to the
Transferee, certain "A" shares of no par value in the Company for the
aggregate consideration of $1.
C. The Transferor is the registered holder of 156,586 "A" shares of no par
value in the Company (the "SHARES"), representing on a fully diluted
basis 22.2% of the capital stock of the Company, and the Transferor is
entitled to and is desirous of transferring the full legal and
beneficial ownership of, in and to the Shares to the Transferee.
D. The board of directors of the Company has approved the transfer of the
Shares from the Transferor to the Transferee and has further resolved
that the Transferee be entered in the register of members of the
Company as holder of the Shares and that a share certificate be issued
to the Transferee.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. For the consideration stated in recital B herein, the Transferor hereby
transfers 156,586 Shares to the Transferee subject to the conditions
attached to these Shares and assigns to the Transferee such of its
rights, benefits and interests as relate to the Shares.
2. On or at any time after the date first above written the Transferor
shall execute and deliver all such documents and do all such further
acts as the Transferee reasonably requires in order to perfect the
rights, title and interest of the Transferee in the Shares.
3. Article 10 (Attornment and Proper Law) of the Purchase Agreement shall
be incorporated in this Deed
-24-
of Transfer, mutatis mutandis.
4. This Deed of Transfer is entered into subject to the Purchase
Agreement.
5. This Deed of Transfer may be executed in several counterparts, each of
which so executed shall be deemed to be an original, and such
counterparts together shall constitute one and the same instrument and,
notwithstanding their date of execution, shall be deemed to bear the
date as of the date above written. Execution and delivery of
counterparts of this Deed of Transfer by facsimile by any party shall
be binding on all parties to this Deed of Transfer.
6. This Deed of Transfer shall enure to the benefit of and be binding upon
the parties and their successors and permitted assigns.
IN WITNESS WHEREOF, the parties have executed this Deed of Transfer as of the
date first above written.
ANVIL INTERNATIONAL FINANCE LIMITED
PER:
--------------------------------
BOGOSO HOLDINGS
PER:
--------------------------------
-25-
SCHEDULE "D" TO THE SHARE AND ASSET ACQUISITION AGREEMENT DATED
AUGUST 6, 2001, AMONG ANVIL MINING NL, ANVIL INTERNATIONAL
FINANCE LIMITED AND
GOLDEN STAR RESOURCES LTD.
DEED OF ASSIGNMENT
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DEED OF ASSIGNMENT
THIS DEED OF ASSIGNMENT is made this o day of o, 2001,
BETWEEN:
ANVIL MINING NL (THE "ASSIGNOR"), a company organized and existing under
the laws of Australia and having its registered office at Ground
Floor, 278 Stirling Highway, Claremont, Western Xxxxxxxxx, 0000,
Xxxxxxxxx
and
BOGOSO HOLDINGS ("BH") (THE "ASSIGNEE"), a company incorporated
under the laws of Cayman Islands and having its registered office
at 0xx Xxxxx, Xxxxxxxxxxxx Xxxxx, Xxxx Xxxxxx, P.O. Box 219G,
Georgetown, Grand Cayman, Cayman Islands
WHEREAS:
The parties hereto have agreed that the Assignor shall assign to the Assignee
its rights, title and interest in and to the BGL Debt (as defined in the share
and asset acquisition agreement dated August 6, 2001 among the Assignor, GOLDEN
STAR RESOURCES LTD. ("GSR") and Anvil International Finance Limited ("AIFL")
(the "Purchase Agreement")); capitalized terms herein, unless otherwise defined,
shall have the meanings ascribed to them in the Purchase Agreement), made
between the Assignor, GSR and AIFL.
NOW THIS DEED WITNESSETH as follows:
On and from the date hereof, the Assignor hereby assigns and transfers to the
Assignee all the rights, title and interest in, to and under the BGL Debt, all
the rights, title and interest in, to the documentation pertaining thereto and
all the rights arising under or in connection with the BGL Security
Documentation relating to the BGL Debt and (in each case) the full benefit and
advantage thereof TO HOLD the same unto the Assignee absolutely.
The Assignor hereby covenants with the Assignee that the amount of 22.2% of the
total indebtedness of BGL to GSR and Anvil of $28,898,200, which equals
$6,415,400 o is still owed by BGL to the Assignor under the BGL Debt and that
there are no other debts due or owing from BGL to the Assignor on any account
whatsoever. The Assignor hereby represents and warrants to the Assignee that the
Assignor has the right, power and authority to enter into this Deed of
Assignment and to perform the transaction contemplated hereby.
BGL hereby acknowledges: 1) the amount of the BGL Debt still owed to the
Assignor as of the date hereof; and 2) receipt of notice in writing from the
Assignee of the assignment of the BGL Debt from the Assignor to the Assignee.
The Assignee acknowledges that the Assignor has given no warranty or assurance
to the Assignee with regard to the recovery of the BGL Debt in whole or in part
from BGL.
Article 10 (Attornment and Proper Law) of the Purchase Agreement shall be
incorporated in this Deed of Assignment, mutatis mutandis.
This deed of Assignment is entered into subject to the Purchase Agreement.
-27-
This Deed of Assignment may be executed in several counterparts, each of which
so executed shall be deemed to be an original, and such counterparts together
shall constitute one and the same instrument and, notwithstanding their date of
execution, shall be deemed to bear the date as of the date above written.
Execution and delivery of counterparts of this Deed of Assignment by facsimile
by any party shall be binding on all parties to this Deed of Assignment.
IN WITNESS WHEREOF, the parties have executed this Deed of Assignment as of the
date first above written.
ANVIL MINING NL
PER:
--------------------------------
BOGOSO HOLDINGS
PER:
--------------------------------
-28-
SCHEDULE "E" TO THE SHARE AND ASSET ACQUISITION AGREEMENT DATED
AUGUST 6, 2001, AMONG ANVIL MINING NL, ANVIL INTERNATIONAL
FINANCE LIMITED AND GOLDEN STAR RESOURCES LTD.
ASSIGNMENT AND NOVATION AGREEMENT
-29-
ASSIGNMENT AND NOVATION AGREEMENT
THIS
ASSIGNMENT AND NOVATION AGREEMENT made this o day of o, 2001,
BETWEEN:
ANVIL MINING NL, a company organized and existing under the laws
of Australia and having its registered office at Ground Floor, 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxxx, 0000, Xxxxxxxxx
(hereinafter referred to as "Anvil")
and
BOGOSO HOLDINGS, a company incorporated under the laws of Cayman
Islands and having its registered office at 0xx Xxxxx,
Xxxxxxxxxxxx Xxxxx, Xxxx Xxxxxx, P.O. Box 219G, Georgetown, Grand
Cayman, Cayman Islands
(hereinafter referred to as "BH")
and:
GOLDEN STAR RESOURCES LTD., a corporation amalgamated under the
laws of Canada and having its registered office in Vancouver,
Canada and its principal office at 00000 Xxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000-0000, X.X.X.
(hereinafter referred to as "GSR")
WHEREAS:
A. Pursuant to that certain revised and restated agreement for the sale
and purchase of debt and 90% of the shares of BGL, dated as of June 1,
1999 (the "Bogoso Purchase Agreement"), by and between Golden Star
Resources Ltd. ("GSR"), Anvil and the sellers named therein, GSR and
Anvil acquired an interest in the Bogoso project in Ghana, as more
particularly set forth in the Bogoso Purchase Agreement.
B. Pursuant to that certain Heads of Agreement, as dated April 30, 1999,
as amended (the "Heads of Agreement"), by and between Anvil and GSR,
Anvil and GSR entered into a joint venture for the purpose of holding
their interest in BGL and operating the Bogoso gold mine in Ghana.
C. Pursuant to a share and asset acquisition agreement dated August 6,
2001 (the "Purchase Agreement") among Anvil, GSR and Anvil
International Finance Limited ("AIFL"), Anvil has agreed to assign all
of its right and obligations under the Bogoso Purchase Agreement and
the Heads of Agreement to GSR's nominee, BH, (the "Assigned Interest")
and BH has agreed to accept the assignment of the Assigned Interest.
-30-
NOW THEREFORE, in consideration of the foregoing premises and the covenants
contained herein and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, BH and Anvil covenant and agree as
follows:
1. Effective as of o, 2001 (the "Effective Date"), Anvil assigns,
transfers, conveys and sets over the Assigned Interest to BH, together
with all benefits and advantages to be derived therefrom, to have and
to hold the same to BH for its sole use and benefit absolutely, subject
to the terms of the Bogoso Purchase Agreement and the Heads of
Agreement.
2. Effective as of the Effective Date, BH accepts the assignment and
transfer of the Assigned Interest and BH agrees with Anvil that it
shall, at all times thereafter observe and perform every covenant and
term on the part of Anvil in the Bogoso Purchase Agreement and the
Heads of Agreement as if BH had been originally named as a party
thereto in the place and stead of Anvil.
3. Effective as of the Effective Date, BH and GSR release, relieve and
discharge Anvil from the performance of its covenants, obligations and
liabilities under the Bogoso Purchase Agreement and the Heads of
Agreement with respect to the Assigned Interest.
4. This Agreement shall be construed and enforced under the laws of the
state of
Colorado, U.S.A.
5. The parties shall, at all times, do all further acts and execute and
deliver all further documents as shall be reasonably required in order
to fully perform the terms of this Agreement.
6. The initial address of BH for service of notices, reports and all
communications required or permitted by the provisions of the Bogoso
Purchase Agreement and the Heads of Agreement with respect to the
Assigned Interest shall be:
Bogoso Holdings
0xx Xxxxx, Xxxxxxxxxxxx Xxxxx
Xxxx Xxxxxx, P.O. Box 219G
Georgetown, Grand Cayman
Cayman Islands
Attention: Xxxxx Xxxxxxxx
7. This Agreement is entered into subject to the Purchase Agreement.
8. This Agreement may be executed in several counterparts, each of which
so executed shall be deemed to be an original, and such counterparts
together shall constitute one and the same instrument and,
notwithstanding their date of execution, shall be deemed to bear the
date as of the date above written. Execution and delivery of
counterparts of this Agreement by facsimile by any party shall be
binding on all parties to this Agreement.
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9. This Agreement shall enure to the benefit of and be binding upon the
parties and their successors and permitted assigns.
IN WITNESS WHEREOF, BH and Anvil have executed this Agreement as of the date
first set forth above.
ANVIL MINING NL
Per:
--------------------------------
BOGOSO HOLDINGS
Per:
--------------------------------
GOLDEN STAR RESOURCES LTD.
Per:
--------------------------------
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SCHEDULE "F" TO THE SHARE AND ASSET ACQUISITION AGREEMENT DATED
AUGUST 6, 2001, AMONG ANVIL MINING NL, ANVIL INTERNATIONAL
FINANCE LIMITED AND GOLDEN STAR RESOURCES LTD.
BGL SECURITY DOCUMENTATION
1. THE ENGLISH CHARGE
A deed of charge dated 18 January, 1990 and made by BGL in favour of
The Law Debenture Trust Corporation p.l.c., IFC and DEG, pursuant to
which BGL created fixed and floating security on BGL's assets for all
moneys and liabilities owing by BGL to the Secured Lenders (as defined
therein) from time to time on the terms and subject to the conditions
stated therein as amended by the Supplemental English charge dated 22
March 1994.
2. THE GHANAIAN DEBENTURE
A debenture dated 18 January, 1990 registered at the Lands Title
Registry Accra as No. 1495/1990 and made by BGL in favour of The Law
Debenture Trust Corporation, IFC and DEG, whereby BGL gave fixed and
floating security over its assets in favour of the Trustee for all
moneys and liabilities owing by BGL to the Secured Lenders (as defined
therein) from time to time on the terms and subject to the conditions
stated therein as amended by the Supplemental Ghanaian Debenture dated
22 March 1994.
3. THE ASSIGNMENT OF INSURANCES
A deed of assignment dated 26 February, 1990 and made between BGL, The
Law Debenture Trust Corporation p.l.c., DEG and IFC, inter alia,
pursuant to which BGL assigned to The Law Debenture Trust Company
p.l.c. by way of mortgage all its right, title and interest in and to
all insurances required to be effected by BGL under which a claim is to
be payable in any freely convertible and transferable currency other
than Cedis and by way of floating charge to The Law Debenture Trust
Corporation p.l.c. all other insurances required to be effected by BGL
on the terms and subject to the conditions stated therein.
4. FOREIGN EXCHANGE RETENTION ACCOUNT AGREEMENT
An agreement dated 18 January, 1990 made between BGL, Barclays Bank
PLC, The Law Debenture Trust Corporation p.l.c., the Republic of Ghana,
the Bank of Ghana, Ghana Commercial Bank, IFC and DEG whereby, inter
alia, there was established a mechanism for the collection, investment
and administration of BGL's funds in one or more accounts maintained
with Barclays Bank PLC and Ghana Commercial Bank as amended by the
Supplemental Foreign Exchange Retention Account Agreement dated 22
March, 1994.
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5. THE MINING LEASE AGREEMENT
An agreement dated 18 January, 1990 entered into between the Republic
of Ghana, IFC, DEG and The Law Debenture Trust Corporation p.l.c.,
providing, inter alia, for certain consents and assurances from the
Republic of Ghana in relation to the Mining Leases (as defined therein)
and the Transactions contemplated by the Financing Documents and the
Security Documents (both as defined therein).
6. THE TRUST DEED
An agreement dated 18 January, 1990 entered into between BGL, The Law
Debenture Trust Corporation plc, the Republic of Ghana, Bank of Ghana,
DEG, IFC and the Representatives (as defined therein).
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SCHEDULE "G" TO THE SHARE AND ASSET ACQUISITION AGREEMENT DATED
AUGUST 6, 2001, AMONG ANVIL MINING NL, ANVIL INTERNATIONAL
FINANCE LIMITED AND GOLDEN STAR RESOURCES LTD.
CERTIFICATION OF NON CANADIAN BENEFICIAL OWNERSHIP
TO: GOLDEN STAR RESOURCES LTD. (THE "CORPORATION")
THE TORONTO STOCK EXCHANGE
ONTARIO SECURITIES COMMISSION
RE: ISSUANCE OF 3,000,000 COMMON SHARES OF GOLDEN STAR RESOURCES LTD.
PURSUANT TO THE SHARE AND ASSET ACQUISITION AGREEMENT DATED AUGUST 6,
2001, AMONG ANVIL MINING NL, ANVIL INTERNATIONAL FINANCE LIMITED AND
GOLDEN STAR RESOURCES LTD.
The undersigned hereby certifies that the 3,000,000 common shares represented by
the certificate registered in the name of the undersigned, and received by it
pursuant to the above agreement are not held beneficially or otherwise for any
person or persons resident in Canada or the United States of America.
The undersigned further certifies that the common shares of the Corporation
represented by the certificate registered in the name of the undersigned is not
beneficially owned by any officer, director or insider of the Corporation.
This certificate may be relied upon by the Corporation in its dealings with The
Toronto Stock Exchange and the Ontario Securities Commission.
DATED as of this ____ day of _______________, 2001.
ANVIL MINING NL
-------------------------------------------
(Name of holder - please print)
-------------------------------------------
(Authorized signature)
-------------------------------------------
(Official capacity - please print)
-------------------------------------------
(Please print name of individual whose
signature appears above, if different from
name of holder, printed above)
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