JOINT VENTURE AGREEMENT BETWEEN THE COMPANY AND GOLDEN ARROW DATED JUNE 30, 2007
EXHIBIT 4.8
JOINT VENTURE AGREEMENT BETWEEN THE
COMPANY
AND GOLDEN ARROW DATED JUNE 30, 2007
Effective
as of June 30, 2007
1
THIS
AGREEMENT made as of the 30th day of
June, 2007.
AMONG:
AMERA RESOURCES CORPORATION, a
company subsisting under the laws of British Columbia having its registered
office at Suite 709 – 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX,
Xxxxxx X0X 0X0.
(“Amera”)
AND:
GOLDEN ARROW RESOURCES
CORPORATION, a company subsisting under the laws of British Columbia
having its registered office at Suite 709 – 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx,
XX, Xxxxxx X0X 0X0.
(“Golden
Arrow”)
AND:
AMERA RESOURCES (BVI) INC., a
company subsisting under the laws of the British Virgin Islands having its
registered office at Xxxxxxxxx Xxxxxxxx, X.X. Xxx 00 Xxxx Xxxx, Xxxxxxx, Xxxxxxx
Xxxxxx Xxxxxxx.
(“Amera
BVI”)
AND:
INVERSIONES MINERAS AUSTRALES
HOLDINGS (BVI) INC., a body corporate subsisting under the laws of the
British Virgin Islands with an office at Xxxxxxxxx Xxxxxxxx, X.X. Xxx 00 Xxxx
Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx.
(“IMAUSA
BVI”)
AND:
GOLDEN AMERA RESOURCES (BVI)
INC., a company subsisting under the laws of the British Virgin Islands
having its registered office at Xxxxxxxxx Xxxxxxxx, X.X. Xxx 00, Xxxx Xxxx,
Xxxxxxx, Xxxxxxx Virgin Island.
(“HoldCo”)
Collectively
referred to hereinafter as the (“Parties”);
2
WITNESSES
THAT WHEREAS:
A. Amera
BVI is a wholly-owned subsidiary of Amera;
B. IMAUSA
BVI is a wholly-owned subsidiary of Golden Arrow;
X. Xxxxx
and Golden Arrow wish to a jointly acquire, explore, exploit and develop mineral
resource properties in Colombia, South America;
D. To
accomplish this objective, Amera and Golden Arrow through their subsidiaries
Amera BVI and IMAUSA BVI have incorporated HoldCo through which the foregoing
activities will be conducted;
X. Xxxxx
and Golden Arrow intend to cause HoldCo to incorporate a Colombian branch entity
under Colombia law (“OpCo”) through which the Colombian mining activities will
be conducted; and
F. The
parties wish to enter into this agreement to set out the terms upon which the
Colombian operational activities will be conducted.
NOW
THEREFORE in consideration of the premises and in consideration of the mutual
covenants and promises herein, the parties hereby covenant and agree each with
the other as follows:
1.
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INTERPRETIVE
PROVISIONS
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1.1
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Definitions - For the
purposes of this Agreement, the following words shall whenever used in
this Agreement, unless there is something in the subject or context
inconsistent therewith, have the following
meanings:
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(a)
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“Adopted Program and
Budget” means any Program and Budget that is adopted by the Board
pursuant to this Agreement;
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(b)
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“Agreement” means this
Joint Venture Agreement, together with all Schedules hereto, which are
incorporated by this reference, and all amendments hereto and
modifications hereof;
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(c)
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“Assets” means the
Properties and all other real and personal property, tangible and
intangible, now or hereafter owned by HoldCo or by
OpCo;
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(d)
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“Board” means the board
of directors of HoldCo;
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(e)
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“Budget” means a detailed
estimate and schedule of all costs to be incurred by HoldCo, OpCo or any
other Subsidiary of HoldCo or OpCo with respect to a
Program;
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(f)
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“Budget Period” means the
six-month periods commencing on January 1 and July 1 each year unless the
Board establishes a different
period;
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3
(g)
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“Business Day” means any
day on which commercial banking institutions in the British Virgin Islands
are open for the transaction of business but shall not mean a Saturday,
Sunday or any day which is a statutory holiday in the British Virgin
Islands;
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(h)
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“By-laws” means the
by-laws of HoldCo;
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(i)
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“Exploration” means all
activities directed principally toward ascertaining the existence,
location, quantity, quality or commercial value of deposits of
minerals;
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(j)
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“OpCo” means the
subsidiary branch of HoldCo established under the laws of Colombia to
conduct mining activities in
Colombia;
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(k)
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“OpCo Bylaws” means the
bylaws of OpCo;
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(l)
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“Operating Committee”
means a committee of the Board established pursuant to section 8 of this
Agreement; and
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(m)
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“Operations” means all
activities carried out by HoldCo or OpCo after the date of this Agreement
including the acquisition, disposition and Exploration of
Properties;
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(n)
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“Person” means an
individual, a partnership, a corporation, a trust, a joint venture or
other form of enterprise;
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(o)
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“Program” means a
description in reasonable detail of Operations to be conducted and
objectives to be accomplished during one or more Budget
Periods;
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(p)
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“Properties” means the
mining rights mining agreements, or other mining business opportunities
acquired by OpCo from time to time, including those listed in Schedule “A”
hereto;
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(q)
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“Shareholders” means
Amera BVI and IMAUSA BVI and their permitted assigns as shareholders of
HoldCo;
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1.2
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Interpretation - In this
Agreement, except as otherwise expressed or provided or as the context
otherwise requires:
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(a)
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the
headings and captions are provided for convenience only and will not form
a part of this Agreement, and will not be used to interpret, define or
limit the scope, extent or intent of this Agreement or any of its
provisions;
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(b)
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the
words “include” or “including” when following any general term or
statement are not to be construed as limiting the general term or
statement to the specific items or matters set forth or to similar items
or matters, but rather as permitting it to refer to all other items or
matters that could reasonably fall within its broadest possible
scope;
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(c)
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an
accounting term not otherwise defined has the meaning assigned to it
under, and all accounting matters will be determined in accordance with,
generally accepted accounting principles (including the methods of
application of such
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4
principles) established by the Canadian Institute of Chartered
Accountants, as consistently applied, although the books of OpCo shall be kept
in accordance with generally accepted accounting principles (including the
methods of application of such principles) as accepted in its jurisdiction of
incorporation;
(d)
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a
reference to a statute includes every regulation made pursuant thereto,
all amendments to the statute or to any such regulation in force from time
to time, and any statute or regulation that supplements or supersedes such
statute or any such regulation;
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(e)
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a
reference to time or date is to the local time or date in the British
Virgin Islands unless specifically indicated
otherwise;
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(f)
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a
reference to a particular corporation includes the corporation derived
from the amalgamation of the particular corporation, or of a corporation
to which such reference is extended by this paragraph (f), with one or
more other corporations;
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(g)
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a
word importing the masculine gender includes the feminine or neuter and a
word importing the singular includes the plural and vice versa;
and
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(h)
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a
reference to “approval”, “authorization”, “consent”, “designation” or
“notice” means written approval, authorization, consent, designation or
notice unless specifically indicated
otherwise.
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1.3
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Auditor or Accountant -
Wherever in this Agreement reference is made to HoldCo’s or OpCo’s
auditor, as the case may be, the same provisions shall apply to HoldCo’s
or OpCo’s external accountant, if HoldCo or OpCo, as the case may be, does
not have an auditor.
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1.4
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Currency - All dollar
amounts referenced in this Agreement refer to United States of America
dollars unless otherwise specified.
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1.5
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Amendment - No
amendment, waiver, termination or variation of the terms, conditions,
warranties, covenants, agreements and undertakings set out herein will be
of any force or effect unless the same is reduced to writing duly executed
by all parties hereto in the same manner and with the same formality as
this Agreement is executed.
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1.6
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Business Days - In the
event that any date on which any action is required to be taken or by
which notice is to be received hereunder is not a Business Day, such
action shall be required to be taken on, and such notice shall be required
to be received by, the next succeeding day which is a Business
Day.
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1.7
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Waiver - No waiver of
any of the provisions of this Agreement will constitute a waiver of any
other provision (whether or not similar) and no waiver will constitute a
continuing waiver unless otherwise expressly
provided.
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5
1.8
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Schedules - The
following Schedules are attached hereto and form a part
hereof:
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Schedule Subject
“A”
The Properties
2.
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PURPOSE OF AGREEMENT
AND RELATIONSHIP OF
SHAREHOLDERS
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2.1
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Purpose of Agreement -
This Agreement sets out the unanimous agreement of the Parties with
respect to the Properties and the conduct of Operations of HoldCo and
OpCo.
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2.2
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Agreement to Govern - In
the event of any inconsistency between the terms and conditions of this
Agreement and the Memorandum of Association and By-laws of HoldCo or OpCo,
the terms and conditions of this Agreement shall have precedence and shall
govern.
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2.3
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OpCo - It is the
intention of the Parties that the overall structure for the holding of the
Properties and the conduct of Operations will be carried out in the most
profitable and tax efficient
manner.
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3.
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OPERATING
COMMITTEE
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3.1
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Appointment of Committee and
Chairman - The Board shall appoint an Operating Committee to which
the Board may delegate so much of its powers and duties as it from time to
time deems appropriate to oversee Operations. The Operating Committee
shall consist of two members. The initial members of the
Operating Committee shall be Niko Cacos and Xxxxxx Xxxxxx. The Board may
also nominate one or more alternate members to the Operating Committee to
act in the absence of one or more, as appropriate, of its regular
members.
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3.2
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Committee Decisions -
Any question, matter or thing whatsoever submitted for decision or action
at any meeting of the Operating Committee shall require the affirmative
vote of a majority of the members present. If there is a
deadlock on any vote by the Operating Committee, the matter shall be
referred to the Board for a final decision. The secretary of the Operating
Committee shall keep minutes of the proceedings of all such
meetings.
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3.3
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Meetings of Operating
Committee - As soon as practicable after the date of this
Agreement, the Operating Committee shall meet for the purposes of
organization and the transaction of other business. Regular meetings of
the Operating Committee shall be held quarterly on a date to be determined
by the Operating Committee and specified in the notice of such meeting.
Special meetings of the Operating Committee may be called by any member on
five Business Days’ prior notice. The member calling a special meeting,
and the chairman of the Operating Committee with respect to regularly
scheduled meetings, shall prepare a reasonably detailed agenda, which
shall specifically identify any proposed significant changes to a Program
and Budget or in operating procedures. The agenda shall accompany the
notice of the Operating Committee’s special meetings and be sent to the
members of the Operating Committee at least ten Business Days prior to a
regularly scheduled monthly meeting. Any member or his alternate may waive
in writing the giving of notice of a meeting of the Operating Committee
before or after such meeting.
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6
3.4
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Location of Meetings -
Unless all members of the Operating Committee otherwise agree, the
regularly scheduled quarterly meetings of the Operating Committee shall be
held in person, with the location of such meetings to be in Vancouver,
British Columbia. All the meetings of the Operating Committee may be
attended by any member by means of conference telephone or other
communication facilities by which means all members participating in the
meeting can hear each other.
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3.5
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Quorum - The quorum for
the transaction of business of the Operating Committee shall be two
members or their alternates, one of such members being a nominee of each
Shareholder. Notwithstanding the foregoing, if at the time scheduled for
the meeting a quorum is not constituted because a nominee of one
Shareholder is not in attendance, the meeting shall be rescheduled to a
time which is two Business Days thereafter and at such rescheduled
meeting, the quorum shall be two members or their alternates with no
requirement that one of such members be a nominee of each
Shareholder.
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3.6
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Resignation of Members -
Any member or any alternate member of the Operating Committee may resign
upon five days’ prior notice to the other members of the Operating
Committee, in which case the directors who appointed the resigning member
shall appoint another member of the Operating Committee to replace the
resigning member.
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3.7
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Removal of Members - The
directors who appointed a member or alternate of the Operating Committee
may remove such member or alternate, either with or without cause, at any
time. The vacancy on the Operating Committee caused by any such removal
shall be filled by the directors causing such
removal.
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3.8
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Appointment of the General
Manager - The Operating Committee may appoint a general manager of
OpCo (the “General Manager”) to oversee
Operations.
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3.9
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Delegation of Authority to the
General Manager - The Operating Committee may delegate such powers
to the General Manager as it deems necessary for the conduct of
Operations. The General Manager shall report and be responsible to the
Operating Committee with respect to the performance of his duties. Nothing
shall authorize the General Manager to take any action not otherwise
authorized by this Agreement, Operating Committee, or the
Board.
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3.10
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Reports by General
Manager - The General Manager (or if there is none, the Operating
Committee) shall prepare monthly reports, which shall be furnished to each
Shareholder, summarizing Operations conducted during the preceding month
and comparing such Operations and the costs thereof to the applicable
Program and Budget.
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3.11
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Access to Properties and
Information - Each Shareholder, or its duly authorized
representatives, at their own risk and expense, shall have access to the
Properties and to all records prepared by the Operating Committee or at
its direction in connection with work done on or with respect to the
Properties. Such inspections shall be done at the sole risk and expense of
the Shareholder wishing access and such Shareholder shall hold OpCo
harmless from any damage, claim or demand by reason of injury to the
agents, employees or representatives of that Shareholder due to their
presence on the Properties, caused by the negligence of that Shareholder
or caused by the negligent or intentional acts of such agents, employees
or representatives of that Shareholder. The Operating Committee or General
Manager shall have the right to schedule such inspections so that
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7
they occur within normal business hours and do not unreasonably
interfere with Operations.
3.12
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Actions Requiring Unanimous
Approval - The following matters shall require unanimous approval
of the Board, as the case may be, even though one Shareholder owns a
majority of the ownership interest in HoldCo. However,
unanimous approval will not be required if a Shareholder ownership
interest is less than 25% :
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(a)
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the
abandonment, sale or disposition of all or substantially all of the assets
of OpCo or HoldCo, except that such restriction shall not apply to sales
or dispositions of equipment or other materials in the ordinary course of
business;
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(b)
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the
winding-up of HoldCo;
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(c)
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amendment
of the constating documents of
HoldCo;
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(d)
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conducting
activities other than acquisition, disposition, exploration, development
and mining of the Properties;
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(e)
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transactions
with an affiliate of a Shareholder (“Affiliate” means, with respect to any
Shareholder, any person which directly or indirectly controls, is
controlled by, or is under common control with, that
Shareholder);
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(f)
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any
increase or reduction in the capital of HoldCo or the issuance of any
shares in the capital of HoldCo;
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(g)
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an
amalgamation or consolidation of HoldCo with any other
Person;
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(h)
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the
appointment of the Operating
Committee;
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(i)
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the
creation, abandonment, sale or disposition of any subsidiaries or branches
of HoldCo; and
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(j)
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all
matters regarding the capitalization and the composition of the management
of OpCo.
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4.
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PROGRAMS, BUDGETS,
CONTRIBUTIONS AND
DISTRIBUTIONS
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4.1
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Operations To Be Conducted
Pursuant to Programs and Budgets - Except as otherwise provided in
sections 4.6 and 4.7, Operations shall be conducted, expenses shall be
incurred, substantially in accordance with Programs and Budgets adopted by
the Board in accordance with the provisions of this section
4.
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4.2
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Preparation of Programs and
Budgets - On or before May 1 and November 1 each year, the
Operating Committee shall prepare and submit to the Board a proposed
Program and Budget for the ensuing Budget Period. Each such proposed
Program and Budget shall be in a form and degree of detail approved by the
Board, which once established shall thereafter be utilized, unless the
Board otherwise determines. The Board shall determine the extent to which
and the sources from which funds will be required to implement the
proposed Program and Budget. Funding shall be provided in accordance with
section 4.8.
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4.3
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Adoption of Programs and
Budgets - Within 20 days after submission of any proposed Program
and Budget, the Board shall hold a meeting at which the directors
shall:
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(a)
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adopt
the proposed Program and Budget; or
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(b)
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propose
modifications to the proposed Program and Budget;
or
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(c)
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reject
the proposed Program and Budget.
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If at
such meeting the directors adopt the proposed Program and Budget or some
modification thereof, the Program and Budget thus adopted shall be the Program
and Budget for the ensuing Budget Period. If at such meeting the directors fail
to adopt a Program and Budget, the Operating Committee shall immediately
endeavour in good faith to develop a Program and Budget for the ensuing Budget
Period which may be adopted by the Board.
4.4
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Failure of Board to Adopt
Programs and Budgets - If the Board fails, for any reason, to
approve a Program and Budget by June 15 or December 15, as the case may
be, the Operating Committee shall be authorized to continue Operations at
the level of activity and expenditure comparable with the last Adopted
Program and Budget and the last Adopted Program and Budget shall be deemed
extended at such levels.
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4.5
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Budget Overruns and Program
Changes - The Operating Committee shall promptly notify the Board
of any actual or anticipated material departure from an Adopted Program
and Budget. The Operating Committee shall not exceed an adopted Budget by
more than 10% unless expressly authorized by the approval of the Board.
Budget overruns shall be paid out of funds from Operations, if available,
and if not available shall, be funded in accordance with section
4.8.
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4.6
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Emergency and Unexpected
Expenditures - Notwithstanding any other provision of this
Agreement, in case of emergency, the Operating Committee may take any
reasonable action it deems necessary to protect life or property, to
protect the Properties or other Assets of HoldCo or OpCo or to comply with
law or government regulation. The Operating Committee shall promptly
notify the Board of any emergency expenditure. The costs of actions
resulting from emergencies shall be paid out of funds from Operations, if
available, and if not available shall, be funded in accordance with
section 4.8.
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4.7
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Amendment of Programs and
Budgets - At any time, the Operating Committee may propose an
amendment to an Adopted Program and Budget, in which event the procedures
of section 4.3 shall apply.
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4.8
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Funding of Programs and
Budgets – All Programs and Budgets shall be funded as
follows:
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(a)
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HoldCo's
request for funding shall be made to each Shareholder pro rata in
proportion to its Ownership Interest. A Shareholder shall
advance the money requested from it within 30 days of receipt of the
written request for the loan. Unless specified in the request
the loans shall not bear interest and shall be unsecured. No
Shareholder shall, so long as it remains a Shareholder, demand repayment
of its loans. If HoldCo repays the loans, in whole or in part,
it shall do so pro rata in proportion to each Shareholder's contribution
by way of loan; and
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(b)
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the
Shareholders shall subordinate and postpone all Shareholder Loans to
permanent financing or other borrowing by HoldCo to the extent required by
the Board.
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4.9
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Shareholder’s Failure to Fund
Programs - If a Shareholder should fail to fund all Programs and
Budgets as required under section 4.8, such Shareholder shall be in
default hereunder and section 5 shall
apply.
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4.10
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Audits - Upon request
made by any Shareholder within six (6) months following the end of any
calendar year (or, if the Board has adopted an accounting period other
than the calendar year, within six (6) months after the end of such
period), an audit of the accounting and financial records of HoldCo or of
OpCo for such calendar year (or other accounting period) shall be
performed by an auditor chosen and paid for by such Shareholder. All
written exceptions to the audit and claims upon HoldCo or OpCo for
discrepancies disclosed by such audit shall be made not more than three
months after receipt of the audit report. Failure to make any such
exception or claim within the three-month period shall mean the audit is
correct and the accounting and financial matters subject to such audit are
binding upon the Shareholders.
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4.11
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Funding to OpCo - It is
the intention of the Shareholders that funds will pass between HoldCo and
OpCo in such a way that taxes will be minimized and returns to the
Shareholders maximized. The Board will, unless it determines to do
otherwise, lend down to OpCo all funds available and required by OpCo for
Operations. Such loans to OpCo shall be made on such terms as shall, in
the opinion of the Board, maximize the returns to HoldCo, with any
interest to accrue until cash flow is available to pay such interest. It
is the intention of the Shareholders that any withholding tax payable with
respect to loans from HoldCo to OpCo will be paid by HoldCo, with the
interest rate payable by OpCo being “grossed up” by the amount of said
withholding tax payable.
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4.12
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Interference by Creditors or
Others - If, for any reason, the right of any Shareholder to
exercise full control over that Shareholder’s Shares shall be affected or
interfered with, whether by Court order or the appointment of a receiver
or otherwise howsoever, the affected Shareholder shall not have a right to
nominate directors and the remaining Shareholder shall, during the period
in which such Shareholder’s rights remain affected, have the right to
nominate directors the affected Shareholder would have been entitled to
nominate and each Shareholder covenants and agrees with the other, with
the express intention and understanding that such covenant shall be
binding upon its assigns and personal representatives, that it shall vote
or cause its Shares to be voted to ensure the election as directors of
HoldCo of such persons as may be required so that nominees of the
remaining Shareholders shall be the directors of the Board while such
rights are so affected.
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4.13
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Director’s Failure to Vote
Agreement - Each Shareholder shall cause the directors of HoldCo
that it nominates to cast all votes and take all other actions in their
capacities as directors in a manner consistent with this Agreement and so
as to implement its terms and intent. The Shareholders will immediately
remove or cause the removal of any director who acts in any manner that is
inconsistent with the terms and conditions of this Agreement. Any action
or failure to act by a director that would be a breach of this Agreement
if taken by a Shareholder shall be deemed a breach of this Agreement by
the Shareholder that nominated such
director.
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5.
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LOAN DEFAULT TO
OPCO
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5.1
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If
a Shareholder defaults by refusing or failing to make a contribution or
payment, then:
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(a)
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the
Non-Defaulting Shareholders, or either of them, may elect not to make
their concomitant contribution or payment (if any), in which
case:
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(i)
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the
Defaulting Shareholder is still in Default but the Non-Defaulting
Shareholder(s) who so elected shall not be in
default;
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(ii)
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if
the Non-Defaulting Shareholders, or either of them, have already made
their concomitant contribution or payment, HoldCo will forthwith pay to
them the amount of such contribution or payment and the Shareholders will
take all steps necessary to obtain the repayment thereof;
and
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(iii)
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in
addition the terms of the Buy-Sell procedure as outlined in section 5.4 of
the Golden Amera Resources (BVI) Inc. Shareholders Agreement shall
apply
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(b)
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if
the Non-Defaulting Shareholder(s) do not elect as provided in
section 5.5(a) hereof, the Non-Defaulting Shareholders may elect to
make, and are hereby authorized by the Defaulting Shareholder to make,
such contribution or payment (the "Default Loan") on behalf of and for the
account of the Defaulting Shareholder in which event the Defaulting
Shareholder shall pay, or cause to be paid, to the Non-Defaulting
Shareholder(s):
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(i)
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the
amount of the Default Loan;
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(ii)
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the
reasonable costs of the Non-Defaulting Shareholder(s) relating to
obtaining monies to make the Default Loan;
and
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(iii)
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interest
calculated and payable on the first business day of each and every month
on the amount of the Default Loan outstanding from time to time equal
to:
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(A)
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the
rate of interest payable by the Non-Defaulting Shareholder to any
third party on any monies borrowed by it to make the Default Loan plus 4%
per annum; or
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(B)
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if
any such monies are not borrowed by the Non-Defaulting Shareholder(s), the
prime commercial lending rate of the BMO at the time the Default Loan is
made plus 4% per annum.
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5.2
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If
and so long as a Shareholder is a Defaulting Shareholder as a result of a
default under section 5 hereof, all monies payable to that Defaulting
Shareholder by the Company by way of dividends, repayment of loans or
other distribution shall be paid to the Non-Defaulting Shareholders until
they have received:
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(a)
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the
amounts set out in section 5.1(b) hereof;
or
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(b)
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if
the Non-Defaulting Shareholders elected pursuant to section 5.1(a)
hereof an amount equal to the concomitant contribution of payment already
made by the Non-Defaulting Shareholders in the circumstances set out in
section 5.1(a) (ii);
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at which
time the Defaulting Shareholder is no longer a Defaulting Shareholder; but in no
event shall the Defaulting Shareholder be entitled to any amount of or credit
for the amount not paid to it as aforesaid or any interest thereon.
5.3
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Upon
the request of the Non-Defaulting Shareholders, or any of them, from time
to time, the Defaulting Shareholder and the director of HoldCo appointed
by him shall vote to ensure that any monies of HoldCo available
for payment of dividends or repayment of loans will be declared and paid
by HoldCo or its directors in accordance with section 5.2
hereof.
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6.
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DISPUTES
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6.1
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Negotiation - All
disputes, controversies and claims arising under this Agreement, shall be
settled, if possible, through good faith negotiations. If such good faith
negotiations do not resolve the dispute within 15 days, then the dispute
shall be referred to arbitration under the terms set out
below.
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6.2
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Arbitration - The
dispute shall be referred to and finally resolved by arbitration
administered by the British Columbia International Commercial Arbitration
Centre pursuant to its Rules before a single
arbitrator.
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6.3
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Location of Arbitration
- Any arbitration shall take place in Vancouver, British Columbia, unless
the parties to the arbitration shall agree to its being held in a
different location.
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7.
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FORCE
MAJEURE
|
7.1
|
Force Majeure - The
following Force
Majeure items shall apply to this
Agreement:
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(a)
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No
party shall be liable for its failure to perform any of its obligations
under this Agreement due to a cause beyond its control (except those
caused by its own lack of funds) including, but not limited to, adverse
weather conditions, environmental protests or blockages, war, riot,
insurrection or civil disturbance, epidemics, acts of God, earthquake,
fire, flood, explosion, strikes, lockouts or other industrial
disturbances, laws, rules and regulations or orders of any duly
constituted governmental authority or non-availability of materials,
services or transportation or any other cause whether similar or
dissimilar to the foregoing (each an “Intervening
Event”);
|
(b)
|
A
party relying on the provisions of section 7.1(a) will promptly give
written notice to the other of the particulars of the Intervening Event
and also estimate the period of time which such party will probably
require in respect of such Intervening Event. All time limits imposed by
this Agreement will be extended by a period equivalent to the period of
delay resulting from an Intervening Event described in paragraph
7.1(a);
|
(c)
|
A
party relying on the provisions of section 7.1(a) will take all reasonable
steps to eliminate any Intervening Event and, if possible, will perform
its obligations
|
12
under this Agreement as far as practical, but nothing herein will
require such party to settle or adjust any labour dispute or to question or to
test the validity of any law, rule, regulation or order of any duly constituted
governmental authority or to complete its obligations under this Agreement if an
Intervening Event renders completion impossible. A party relying on the
provisions of section 7.1(a) will keep the other party informed of all
significant developments and will give written notice to the other as soon as
such Intervening Event ceases to exist.
8.
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CONFIDENTIALITY AND
NON-COMPETITION
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8.1
|
General - All
information obtained in connection with the conduct of Operations which is
designated as confidential by the Board, the financial terms and
conditions of this Agreement and all material technical, geologic,
financial, and corporate strategy or planning information relating to the
Properties shall be exclusive property of the Shareholders and, except as
provided in section 8.2 of this Agreement, shall not be disclosed to any
third party or the public without the prior written consent of the other
Shareholder, which consent shall not be unreasonably
withheld.
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8.2
|
Exceptions - The consent
required by section 8.1 shall not apply to a
disclosure:
|
(a)
|
If
such information is necessarily disclosed by Operations or is necessary to
disclose to implement an Adopted Program and
Budget;
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(b)
|
Of
such information as is reasonably necessary to disclose to an Affiliate,
consultant, contractor, advisor, or representative, that has a bona fide
need to be informed;
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(c)
|
To
a third party to whom the disclosing Shareholder contemplates a transfer
of all or any part of its Shares, subject to reasonable requirements
concerning use and confidentiality;
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(d)
|
To
a governmental agency or to the public which disclosure the disclosing
Shareholder believes in good faith is required by pertinent law or
regulation or the rules of any stock exchange on which its stock, or the
stock of an entity which controls the Shareholder, is
traded;
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(e)
|
Of
any information which at the time of disclosure is in the public domain,
except as a result of a breach of this
Agreement;
|
(f)
|
To
a bank, insurance company or other financial institution and to its
advisors in connection with negotiations concerning financing arranged by
a Shareholder for its own corporate purposes, subject to reasonable
requirements concerning use and confidentiality;
or
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(g)
|
By
a Shareholder of information which it owns or controls independently of
HoldCo, but which was furnished to HoldCo by that Shareholder for use by
HoldCo.
|
Subject
as hereinafter provided, in any case to which this section 8.2 is applicable,
the disclosing Shareholder shall give notice to the other Shareholder
concurrently with the making of such disclosure. As to any disclosure made by
way of news release or other
13
public
announcement made pursuant to section 8.2(d), the disclosing Shareholder shall,
unless circumstances make this impossible, first provide a draft of the proposed
news release or public announcement to the other Shareholder for review and
comment at least 48 hours prior to the proposed disclosure. As to any disclosure
pursuant to sections 8.2(b), 8.2(c) or 8.2(f), such third party shall first
agree in writing to protect the confidential information from further disclosure
to the same extent as the Shareholders are obligated under this section
8.
8.3
|
Duration of
Confidentiality - The provisions of this section 8 shall apply
during the term of this Agreement, and shall continue to apply to a
Shareholder who has been deemed to have sold its Ownership
Interest.
|
8.4
|
Non-competition - Each
of Amera, Golden Arrow, Amera BVI and IMAUSA BVI covenants with each other
that it will not engage in practices detrimental to HoldCo and
OpCo. Each of Amera, Golden Arrow, Amera BVI and IMAUSA BVI
hereby covenants and agrees with each other that if during the
currency of this Agreement a party or any Associate or Affiliate acquires,
directly or indirectly or pursuant to any third party agreement, any form
of interest in minerals located wholly or in part within Colombia, the
acquiring party will offer, or in the case of an Associate or Affiliate
use its best efforts to cause such Associate or Affiliate to offer, such
interest to HoldCo and OpCo by notice in writing to HoldCo and OpCo
setting out the nature of such interest and including all information
known by the acquiring parties, about such interest, the acquisition costs
of the acquiring party and all other details relating thereto and if,
within 60 days from the date of receipt of such notice by HoldCo and OpCo,
HoldCo and OpCo accept such mineral interest and pays to the acquiring
parties 100% of its acquisition costs relating thereto as set out in such
notice, such mineral interest will form part of the
Properties.
|
9.
|
NOTICES
|
9.1
|
Notices - All notices,
payments, and other required communications (“Notices to the Shareholders
shall be in writing, and shall be addressed respectively as
follows:
|
If to
Amera:
Terminal
City Club Tower
709 - 000
Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX X0X 0X0
Fax No:
000-000-0000
If to
Golden Arrow:
Terminal
City Club Tower
709 - 000
Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX X0X 0X0
Fax No:
000-000-0000
If to
Amera BVI:
Harneys
Corporate Services Limited
Xxxxxxxxx
Xxxxxxxx, X.X. Xxx 00
Xxxx
Xxxx, Xxxxxxx,
Xxxxxxx
Xxxxxx Xxxxxxx
14
Fax No:
0-000-000-0000
with a
copy to:
Xxxxxx
Xxxxx Harwardt LLP
1750 –
0000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx,
XX
X0X
0X0
Fax no:
(000) 000.0000
Attention:
Xxxxx X. Xxxxxx
If to
IMAUSA BVI:
Harneys
Corporate Services Limited
Xxxxxxxxx
Xxxxxxxx, X.X. Xxx 00
Xxxx
Xxxx, Xxxxxxx,
Xxxxxxx
Xxxxxx Xxxxxxx
Fax No:
0-000-000-0000
with a
copy to:
AXIUM LAW
CORPORATION
Suite
3350, Four Bentall Centre
0000
Xxxxxxxx Xxxxxx
XX Xxx
00000
Xxxxxxxxx,
XX X0X 0X0
Telephone:
000-000-0000
Fax No:
000-000-0000
Attention:
Xxxx Varabioff
If to
HoldCo:
Harneys
Corporate Services Limited
Xxxxxxxxx
Xxxxxxxx, X.X. Xxx 00
Xxxx
Xxxx, Xxxxxxx,
Xxxxxxx
Xxxxxx Xxxxxxx
Fax No:
0-000-000-0000
All
Notices shall be given (i) by personal delivery to the party by leaving a copy
at the place specified for notice with a receptionist, or an apparently
responsible individual, or (ii) by electronic facsimile communication, with a
confirmation sent by registered or certified mail return receipt requested, or
(iii) by registered or certified mail return receipt requested. All Notices
shall be effective and shall be deemed delivered (i) if by personal delivery on
the date of delivery, if delivered during normal business hours, and, if not
delivered during normal business hours, on the next business day following
delivery, (ii) if by electronic communication on the next business day following
receipt of the electronic communication, and (iii) if solely by mail on the next
business day after actual receipt. A Notice shall be effective if delivered, as
above provided, to the first individual
15
specified
in this section 9.1 as the recipient of Notice for each of the Shareholders,
provided that a Shareholder shall use reasonable efforts to deliver all Notices
to each copy recipient specified in this section 9.1. A party may change its
address for Notice by Notice to the other party.
10.
|
ALTERATIONS TO
AGREEMENT
|
10.1
|
Alterations - No
alteration or amendment to this Agreement shall take effect unless it is
in writing duly executed by each of the parties hereto, provided that it
shall not be necessary to make a party to any amending agreement any
Shareholder who has ceased to be a Shareholder and who has been paid all
money owing to it by HoldCo and has been paid all money owing to it by the
other Shareholders pursuant to this Agreement and no alteration or
amendment shall apply retroactively unless otherwise
agreed.
|
11.
|
TERMINATION
|
11.1
|
This
Agreement shall terminate:
|
(a)
|
if
HoldCo ceases to carry on business, has a receiving order made against it,
goes into bankruptcy either voluntarily or involuntarily or makes a
proposal to its creditors;
|
(b)
|
the
date HoldCo shall complete proceedings for its liquidation and
distribution of its assets; or
|
(c)
|
if
the Shareholders hereto consent in writing to the termination
hereof.
|
12.
|
GENERAL
|
12.1
|
Time - Time shall be of
the essence for this Agreement.
|
12.2
|
Severability - Should
any part of this Agreement be declared or held to be invalid for any
reason, the invalidity shall not affect the validity of the remainder of
this Agreement which shall continue in full force and effect and be
construed as if this Agreement had been executed without the invalid
portion and it is hereby declared the intention of the parties that this
Agreement would have been executed without reference to any portion that
may, for any reason, be hereafter declared or held
invalid.
|
12.3
|
Further Assurances - The
parties shall execute all other documents and instruments and do all other
things necessary to implement and carry out the terms of this
Agreement.
|
12.4
|
Governing Law - This
Agreement shall be construed and the powers and provisions herein
contained shall be administered, exercised and given effect to according
to the laws of the Province of British Columbia and the rights and
obligations of all parties hereunder shall be regulated by the laws of the
Province of British Columbia notwithstanding that any of the Shareholders
may now or at any future time be resident or domiciled elsewhere than in
the Province of British Columbia. The parties irrevocably attorn to the
jurisdiction of the arbitrators and courts of the Province of British
Columbia and the venue for any actions or arbitrations arising out of
their Agreement shall be Vancouver, British
Columbia.
|
16
12.5
|
Entire Agreement - The
provisions herein constitute the entire agreement between the parties and
supersede all previous communications, representations and agreements,
whether verbal or written, between the parties with respect to the subject
matter hereof.
|
12.6
|
Enurement - This
Agreement shall enure to the benefit of and be binding upon the parties
hereto and, except as otherwise provided herein or as would be
inconsistent with the provisions hereof, their respective successors and
permitted assigns.
|
12.7
|
Assignment - Except as
expressly otherwise provided in this Agreement, this Agreement may not be
assigned by a party without the written consent of the other
parties.
|
12.8
|
Counterparts - This
Agreement, and any certificates or other writing delivered in connection
herewith, may be executed in any number of counterparts with the same
effect as if all parties had all signed the same documents, and all such
counterparts and adopting instruments will be construed together and will
constitute one and the same instrument. The execution of this Agreement
and any other writing by any party hereto or thereto will not become
effective until counterparts hereof or thereof, as the case may be, have
been executed by all the parties hereto or thereto, and executed copies
delivered to each party who is a party hereto or thereto. Such delivery
may be made by facsimile transmission of the execution page or pages,
hereof or thereof, to each of the other parties by the party signing the
particular counterpart, provided that forthwith after such facsimile
transmission, an originally executed execution page or pages is forwarded
by prepaid express courier to each of the other parties by the party
signing the particular counterpart.
|
IN
WITNESS WHEREOF the parties hereto entered into this Agreement on the date
hereinbefore set out.
AMERA
RESOURCES CORPORATION
Per:
Authorized Signatory
GOLDEN
ARROW RESOURCES CORPORATION
Per:
Authorized Signatory
AMERA
RESOURCES (BVI) INC.
Per:
Authorized Signatory
INVERSIONES
MINERAS AUSTRALES HOLDINGS (BVI) INC.
Per:
Authorized Signatory
GOLDEN
AMERA RESOURCES (BVI) INC.
Per:
Authorized Signatory
17