LOCK-UP AGREEMENT
December
5, 2007
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TO:
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THE
PERSONS EXECUTING AN ACCEPTANCE ATTACHED
HERETO
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(each
such person, a "Seller" and collectively, the
"Sellers")
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In
connection with a support agreement dated the date hereof, (the "Support
Agreement"), China Minmetals Non-Ferrous Metals Co. Ltd. and Jiangxi
Copper Company Limited, each a corporation existing under the laws of the
People's Republic of China (together, the "Offeror"), proposes
to make an offer (the "Offer") to acquire all of the issued and
outstanding Shares of Northern Peru Copper Corp. (the
"Company") together with all of the Shares issued upon the
exercise of Options. Capitalized terms used in this lock-up agreement
(this "Lock-Up Agreement") and not
otherwise defined herein that are defined in the Support Agreement shall have
the respective meanings ascribed thereto in the Support Agreement, as it may
be
amended from time to time.
This
Lock-Up Agreement sets out the terms and conditions of the several and not
joint
agreements of each Seller: (i) to support the Offer; (ii) to deposit or cause
to
be deposited under, and not withdraw or cause to be withdrawn from, the Offer
all of the Shares currently beneficially owned or controlled by such Seller,
as
listed immediately below the signature of such Seller evidencing such Seller's
acceptance of this Lock-Up Agreement (the "Acceptance"); (iii)
in the case of each Seller holding outstanding Options (each, an
"Optionholder" and collectively, the
"Optionholders"), to conditionally exercise in accordance with
the procedures set forth in the Support Agreement the Options currently owned
by
such Optionholder, as listed immediately below such Seller's Acceptance, for
Shares (the Shares acquired upon the exercise of Options and the Bonus Shares
(if any) issued to a Seller, collectively referred to as "Subsequently
Acquired Shares") and to deposit or cause to be deposited such
Subsequently Acquired Shares under the Offer (such Shares referred to in (ii)
above and such Subsequently Acquired Shares are hereinafter collectively
referred to as the "Subject Shares"); and (iv) to comply with
the restrictions, obligations and covenants of a Seller set forth
herein.
ARTICLE 1
THE
OFFER
1.1 Not
later than the Latest Mailing Date, Offeror shall mail the Offer in accordance
with the terms of the Support Agreement. Except as provided in the
Support Agreement, the conditions to the making of the Offer are for the sole
benefit of Offeror and any of such conditions may be waived by Offeror in whole
or in part in its sole discretion at any time. Subject to the
satisfaction or waiver of the conditions of the Offer, Offeror shall within
the
time periods required by Applicable Laws take up and pay for the Shares
deposited under the Offer.
1.2 Each
Seller acknowledges and agrees that Offeror may, in its sole discretion, modify
or waive any term or condition of the Offer; provided that Offeror shall not,
without the prior written consent of the Company, take any action set out in
section 1.1(c) of the Support Agreement.
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ARTICLE 2
COVENANTS
OF THE SELLERS
2.1 Each
Seller hereby agrees, from the date hereof until the earlier of: (i)
the termination of this Lock-Up Agreement pursuant to Article 6; and (ii) the
Effective Time, except in accordance with the terms of this Lock-Up Agreement,
not to:
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(a)
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acquire
direct or indirect beneficial ownership or control of any additional
Shares or Options or obtain or enter into any right to do so, with
the
exception of any Shares acquired pursuant to the exercise of Options
as
contemplated by Section 3.2 hereof and any Bonus Shares listed
immediately below such Seller's
Acceptance;
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(b)
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option,
sell, assign, transfer, alienate, dispose of, gift, grant, pledge,
create
or permit an Encumbrance on, grant a security interest in or otherwise
convey any Options or Subject Shares or any right or interest in
either,
or agree to do any of the foregoing except pursuant to the Offer
or
pursuant to Section 2.5;
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(c)
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grant
or agree to grant any proxy or other right to the Subject Shares,
or enter
into any voting trust or pooling agreement or arrangement or enter
into or
subject any of such Subject Shares to any other agreement, arrangement,
understanding or commitment, formal or informal, with respect to
or
relating to the voting thereof;
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(d)
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in
any manner, directly or indirectly, including through any Representative,
solicit, initiate, or knowingly encourage any inquiries, proposals,
offers
or public announcements (or the submission or initiation of any of
the
foregoing) from any person regarding any Acquisition Proposal, engage
in
any negotiations concerning, or provide any information to, or have
any
discussions with or otherwise cooperate with, any person relating
to an
Acquisition Proposal, or otherwise knowingly facilitate or knowingly
encourage any effort or attempt to make or implement an Acquisition
Proposal;
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(e)
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solicit
or arrange or provide assistance to any other person to arrange for
the
solicitation of, purchases of or offers to sell Shares or act in
concert
or jointly with any other person for the purpose of acquiring Shares
for
the purpose of affecting the control of the
Company;
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(f)
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deposit
or cause to be deposited such Seller's Subject Shares under any
Acquisition Proposal nor support any Acquisition Proposal in any
manner
whatsoever;
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(g)
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except
as required by applicable Laws, prior to the public announcement
by
Offeror of its intention to make the Offer, directly or indirectly,
disclose to any person (other than the Company and its financial
and legal
advisors) the existence of this Lock-Up Agreement or the terms and
conditions of this Lock-Up Agreement, or the possibility of Offeror
making
the Offer or any terms or conditions or other information concerning
the
Offer;
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(h)
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take
any action of any kind, directly or indirectly, which might reasonably
be
regarded as likely to reduce the success of, or delay or interfere
with
the completion of the transactions contemplated by the Support Agreement;
and
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(i)
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take
any action to encourage or assist any other person to do any of the
prohibited acts referred to in the foregoing provisions of this Section
2.1.
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2.2 Each
Seller hereby agrees, from the date hereof until the earlier of: (i) the
termination of this Lock-Up Agreement pursuant to Article 6; and (ii) the
Effective Time, except in accordance with the terms of this Lock-Up Agreement,
to:
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(a)
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immediately
cease, cause its Representatives to cease and cause to be terminated
any
existing solicitations, discussions or negotiations with any parties
(other than the Offeror or any Representative of the Offeror) with
respect
to any Acquisition Proposal or any potential Acquisition
Proposal;
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(b)
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promptly
notify Offeror, at first orally and then in writing, of all Acquisition
Proposals currently under consideration or of which the Seller is
aware;
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(c)
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promptly
(and in any event within 24 hours after it has received any proposal,
inquiry, offer or request) notify Offeror, at first orally and then
in
writing of: (i) any proposal, inquiry, offer or request,
or any amendment to any of the foregoing (each, a "Third Party
Inquiry") that the Seller receives or of which the Seller becomes
aware that relates to, constitutes or could lead to an Acquisition
Proposal; or (ii) any request that the Seller receives for discussions
or
negotiations relating to an Acquisition Proposal or any request for
information relating to the Company or its Subsidiaries or any of
their
mineral properties or contractual or legal rights or for access to
properties, books and records or a list of Shareholders. Such
notice to Offeror shall include a description of the terms and conditions
of, and the identity of the person making, any Third Party Inquiry
and
shall include copies of such Third Party Inquiry and any other written
correspondence related to such Third Party Inquiry. The Seller
shall also provide such other details of the Third Party Inquiry
as
Offeror may reasonably request. The Seller shall keep Offeror
promptly and fully informed of the status, including any change to
the
material terms, of any Third Party Inquiry, and will respond promptly
to
all inquiries by Offeror with respect thereto;
and
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(d)
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exercise
the voting rights attaching to the Subject Shares and otherwise use
the
Seller's commercially reasonable efforts in the Seller's capacity
as a
Shareholder to oppose any proposed action by the Company or its
Subsidiaries, the Shareholders or any other person (A) in respect
of any
Acquisition Proposal involving the Company or its Subsidiaries, (B)
which
may in any manner adversely affect, by delay or otherwise, the take-up
of
and payment for the Subject Shares deposited under the Offer or the
successful completion of the Offer, including without limitation,
any
amendment to the memorandum or articles, constating documents or
corporate
structure of the Company, or (C) which would reasonably be expected
to
result in a Material Adverse Effect. In connection therewith,
the Seller hereby appoints Offeror as the Seller's attorney in fact
(which
appointment is unconditional, irrevocable (subject to Article 6),
and is
coupled with an interest) for and on such Seller's behalf to execute
a
proxy appointing a person designated by Offeror to attend and act
on
behalf of the Seller at any meeting of Shareholders and to execute
one or
more Shareholder consents or other Shareholder approval documents in
respect of any of the matters referred to in this Section
2.2(d). Offeror shall advise the Seller upon executing any
proxies or Shareholder consents or other Shareholder approval documents
in
respect of the Subject Shares held by the
Seller.
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2.3 Each
Seller covenants to co-operate with Offeror in making all requisite regulatory
filings.
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2.4 Nothing
in this Article 2 shall prevent a Seller who is a member of the board
of directors of the Company or is a senior officer of the Company from engaging,
in such Seller's capacity as a director or senior officer of the Company, in
discussions or negotiations with a person in response to an unsolicited bona
fide Acquisition Proposal made in writing to the board of directors of the
Company by such person (which Acquisition Proposal did not result from a breach
of this Lock-Up Agreement or the Support Agreement) in circumstances where
the
Company is permitted by section 3.3(a) of the Support Agreement to engage in
such discussions or negotiations. For greater certainty, each Seller
acknowledges that this Section 2.4 shall not affect such Seller's
obligation to deposit or cause to be deposited (and, except as permitted by
this
Lock-Up Agreement, not withdraw or cause to be withdrawn) the Subject Shares
under the Offer in accordance with the terms and conditions of this Lock-Up
Agreement.
2.5 (a) Upon
prior written notice to the Offeror prior to the 15th calendar
day after
the mailing of the Offer, a Seller may transfer any of its Subject
Shares:
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(i)
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as
a bona fide gift or gifts, provided that prior to such transfer the
donee
or donees agrees to be bound by the terms and conditions of this
Agreement
and delivers an executed counterpart of this Agreement prior to such
transfer as if it were an original party
hereto;
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(ii)
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to
any trust for the direct or indirect benefit of the undersigned or
immediate family of the undersigned, provided that prior to such
transfer
the trustees of the trust agree to be bound by the terms and conditions
of
this Agreement and delivers an executed counterpart of this Agreement
prior to such transfer as if it were an original party hereto;
or
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(iii)
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to
any affiliate, provided that prior to such transfer the affiliate
agrees
to be bound by the terms and conditions of this Agreement and deliver
an
executed counterpart of this Agreement prior to such transfer as
if it
were an original party hereto.
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(b) No
transfers pursuant to this Section 2.5 shall relieve Offeror or such
Seller, as applicable, of its obligations hereunder.
(c) For
purposes of this agreement, "immediate family" shall mean any relationship
by
blood, marriage or adoption, not more remote than first cousin and "affiliate"
shall have the meaning attributed to it under the Business Corporations Act
(British Columbia).
ARTICLE 3
AGREEMENT
TO TENDER
3.1 This
Lock-Up Agreement when signed and delivered by a Seller will constitute the
agreement of such Seller, among other things, to accept the Offer and validly
deposit or cause to be deposited and cause all acts and things to be done to
deposit under the Offer, and not withdraw or cause to be withdrawn from the
Offer, all of the Shares currently beneficially owned or controlled by such
Seller, together with any Bonus Shares issuable to such Seller, and, in any
event, not less than the aggregate number of Shares and Bonus Shares set forth
immediately below such Seller's Acceptance, together with a duly completed
and
executed letter of transmittal (or other appropriate instrument) (a
"Transmittal"), on the terms and conditions set out
herein.
3.2 This
Lock-Up Agreement when signed and delivered by an Optionholder will constitute
the agreement of such Optionholder, among other things, to conditionally
exercise (as contemplated by
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section
1.5 of the Support Agreement) all of the Options currently owned by such
Optionholder and, in any event, not less than the number of Options set forth
immediately below such Optionholder's Acceptance and to accept the Offer and
validly deposit or cause to be deposited under the Offer and not withdraw or
cause to be withdrawn from the Offer all of the Subsequently Acquired Shares
issued upon such exercise of Options, together with a duly completed and
executed Transmittal, on the terms and conditions set out herein or as otherwise
contemplated by section 1.5 of the Support Agreement.
3.3 Each
Seller agrees that if Offeror makes the Offer in compliance with
Section 1.1 and Section 1.2, such Seller shall deposit or cause to be
deposited with the depository under the Offer (a) within 20 calendar days of
the
mailing of the Offer, all of the Subject Shares then outstanding (and such
Seller shall ensure that all of such Subject Shares have become registered
in
the name of the Seller prior to such deposit), and (b) no later than three
business days prior to the first scheduled expiry time of the Offer, all such
documents as may be necessary or desirable to deposit or cause to be deposited
all of the Subsequently Acquired Shares (including those to be acquired pursuant
to the conditional exercise of Options), in each case in accordance with the
terms of the Offer or as otherwise contemplated by section 1.5 of the Support
Agreement, and thereafter, except as may be permitted by this Lock-Up Agreement
or unless this Lock-Up Agreement is terminated in accordance with Article 6,
such Seller shall continue to support the Offer and shall not withdraw or take
any action to withdraw any of such Seller's Subject Shares deposited under
the
Offer including, without limitation, withdrawing or revoking a Transmittal
(notwithstanding any statutory rights or other rights under the terms of the
Offer or otherwise which such Seller might have and whether or not a Superior
Proposal is made or exists or the Company recommends or fails to recommend
or
withdraws, modifies or qualifies its recommendation of the Offer).
3.4 For
greater certainty, for the purposes of this Lock-Up Agreement, the term "Subject
Shares" shall refer to all the Shares which the Sellers are required to deposit
or cause to be deposited under the Offer pursuant to the terms of this Lock-Up
Agreement and shall include all shares or other securities into or for which
the
Subject Shares may be converted, exchanged or otherwise changed pursuant to
any
reorganization, merger, amalgamation or other transaction involving the Company
prior to the acquisition of the Subject Shares by Offeror, and shall also
include any and all distributions of cash, securities or other property made
on
the Subject Shares on or after the date hereof, if any.
ARTICLE 4
REPRESENTATIONS
AND WARRANTIES
4.1 Each
Seller by its acceptance hereof represents and warrants as follows and
acknowledges that Offeror is relying upon such representations and warranties
in
connection with entering into this Lock-Up Agreement, making the Offer and
purchasing the Subject Shares:
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(a)
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such
Seller is the beneficial owner of or controls all of the Shares
and/or Options and is entitled to receive all of the Bonus
Shares set forth immediately below such Seller's Acceptance and,
except as
set forth immediately below such Seller's Acceptance, such Seller
is the
registered owner of such Shares and/or Options and will be the registered
owner of such Bonus Shares upon their issuance prior to the Expiry
Time;
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(b)
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(i)
the only securities of the Company beneficially owned, directly or
indirectly, or over which control or direction is exercised by such
Seller
are those listed immediately below such Seller's Acceptance, and
(ii)
other than any Options or Bonus Shares listed immediately below such
Seller's Acceptance and Shares issuable on the exercise of such Options,
such Seller does not own, directly or indirectly, or control any
convertible securities and has no other agreement or option, or right
or
privilege (whether by law, pre-emptive or contractual) capable of
becoming
an agreement or option, for the
purchase
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or
acquisition by such Seller or transfer to such Seller of additional securities
of the Company;
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(c)
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such
Seller has the sole right to sell and vote all the Subject Shares
now
beneficially owned or controlled, and will have the right to sell
and vote
all the Subject Shares hereafter acquired by such Seller (subject
to any
conditions on Shares issued upon the conditional exercise of Options
in
accordance with Section 3.2);
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(d)
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all
the Subject Shares held by such Seller will, at the time at which
Offeror
takes up and pays for such Subject Shares, be beneficially owned
by such
Seller with good and marketable title thereto, free and clear of
any and
all Encumbrances and are and will at such time be issued and outstanding
as fully paid and non-assessable shares in the capital of the
Company;
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(e)
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such
Seller has no agreement, option, or any right or privilege (whether
by
law, pre-emptive or contractual) capable of becoming an agreement
or
option, for the purchase, acquisition or transfer from such Seller
of any
of the Subject Shares owned by such Seller or any interest therein
or
right thereto, except pursuant to this Lock-Up
Agreement;
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(f)
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such
Seller has no voting trust, pooling agreement, or any right or privilege
(whether by law, pre-emptive or contractual) capable of becoming
a voting
trust or pooling agreement, or other agreement or arrangement affecting
the Subject Shares or the ability of such Seller to exercise all
ownership
rights thereto, including the voting of the Subject
Shares;
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(g)
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there
are no legal proceedings in progress before any public body, court
or
authority or, to the knowledge of such Seller, pending or threatened
against such Seller that would adversely affect in any manner the
ability
of such Seller to enter into this Lock-Up Agreement and to perform
its
obligations hereunder or the title of such Seller to any of the Subject
Shares and there is no judgment, decree or order against such Seller
that
would adversely affect in any manner the ability of such Seller to
enter
into this Lock-Up Agreement and to perform its obligations hereunder
or
the title of such Seller to any of the Subject
Shares;
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(h)
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if
such Seller is a corporation, such Seller is validly existing under
the
laws of its jurisdiction of
incorporation;
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(i)
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the
execution and delivery by such Seller of this Lock-Up Agreement,
the
authorization of this Lock-Up Agreement by such Seller, and the
performance by such Seller of its obligations under this Lock-Up
Agreement, (i) do not require any authorization to be obtained by
such
Seller (other than such authorizations as have been obtained by such
Seller on or before the date hereof), and (ii) will not result (with
or
without notice or the passage of time) in a violation or breach of
or
constitute a default under any provision of (A) any applicable Laws,
(B)
any note, bond, mortgage, indenture, contract or agreement to which
such
Seller is party or by which such Seller or its assets is bound, (C)
any
judgment, decree, order or award of any Governmental Authority having
jurisdiction over such Seller; or (D) if such Seller is a corporation,
the
constating documents, by-laws or resolutions of the board of directors
or
shareholders thereof; and
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(j)
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this
Lock-Up Agreement has been duly executed and delivered by such Seller
and
constitutes a legal, valid and binding obligation of such Seller,
enforceable against such
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Seller
in accordance with its terms, subject to bankruptcy, insolvency and other
applicable Laws affecting creditors' rights generally, and to general principles
of equity.
4.2 Each
Offeror represents and warrants as follows and acknowledges that each Seller
is
relying upon such representations and warranties in connection with entering
into this Lock-Up Agreement and the sale to Offeror of the Subject
Shares:
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(a)
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Offeror
is a corporation validly existing under the laws of the People's
Republic
of China and Offeror has the requisite corporate power and authority
to
execute and deliver this Lock-Up Agreement, to make the Offer and
to
perform its obligations hereunder and under the Support
Agreement;
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(b)
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this
Lock-Up Agreement has been duly executed and delivered by Offeror
and
constitutes a legal, valid and binding obligation of Offeror, enforceable
against Offeror in accordance with its terms, subject to bankruptcy,
insolvency and other applicable Laws affecting creditors' rights
generally, and general principles of equity;
and
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(c)
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neither
the execution and delivery by Offeror of this Lock-Up Agreement or
the
Support Agreement, nor the performance by Offeror of its obligations
under
this Lock-Up Agreement or the Support Agreement shall result in the
breach
or violation of, or constitute a default under, or conflict with
any
provision of: (i) the constating documents, by-laws or resolutions of
the board of directors (or any committee thereof) of Offeror, or (ii)
any Laws to which Offeror is subject or by which Offeror is bound,
except
where such breach or violation would not materially adversely affect
Offeror’s ability to perform its obligations under this Lock-Up Agreement
or the Support Agreement.
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ARTICLE 5
ALTERNATIVE
TRANSACTION
5.1 Each
Seller irrevocably covenants in favour of Offeror that if (i) Offeror
determines, acting reasonably, that it is necessary or desirable to proceed
with
an alternative transaction (including an amalgamation or a plan of arrangement
including Offeror or any affiliate thereof) (the "Alternative
Transaction") and (ii) the Company supports the completion of such
Alternative Transaction, each Seller shall support the completion of such
Alternative Transaction in the same manner as the Offer, including using all
reasonable efforts to facilitate the successful completion of such Alternative
Transaction.
5.2 If
an Alternative Transaction involves a meeting or meetings of securityholders
of
the Company, each Seller irrevocably covenants in favour of Offeror to vote
or
cause to be voted and cause all acts and things to be done to vote all of the
Subject Shares in favour of any matters necessary or ancillary to the completion
of the transactions contemplated by such Alternative Transaction.
5.3 In
the event of any proposed Alternative Transaction, any reference in this Lock-Up
Agreement to the Offer shall refer to the Alternative Transaction to the extent
applicable, all terms, covenants, representations and warranties of this Lock-Up
Agreement shall be and shall be deemed to have been made in the context of
the
Alternative Transaction, and all references to the expiry time of the Offer,
including the Expiry Time, herein shall refer to the date of closing of the
transactions contemplated by the Alternative Transaction.
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ARTICLE 6
TERMINATION
6.1 This
Lock-Up Agreement may be terminated by notice in writing in respect of a
Seller:
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(a)
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at
any time by mutual consent of Offeror and such
Seller;
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(b)
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by
such Seller if:
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(i)
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Offeror
has not complied in any material respect with its covenants contained
in
this Lock-Up Agreement or if any representation or warranty of Offeror
herein is untrue or incorrect in any material respect and, in each
case,
such non-compliance or inaccuracy is reasonably likely to prevent
consummation of the Offer and is not curable or, if curable, is not
cured
by the earlier of the date which is 5 days from the date of written
notice
of such breach and the business day prior to the Expiry
Time;
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(ii)
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Offeror
modifies or waives any term or condition of the Offer in a manner
contrary
to Section 1.2 of this Lock-Up Agreement;
or
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(iii)
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the
Offer has been made and the Offeror has not (for any reason other
than the
failure of the Seller to deposit its Shares for purchase) taken up
and
paid for all Shares deposited under the Offer in accordance with
Applicable Law,
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(iv)
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a
Superior Proposal is made and (a) the Support Agreement is terminated
in
accordance with its terms, and (b) if a Non-Completion Event has
occurred
under the terms of the Support Agreement, the Non-Completion Payment
shall
have first been paid.
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provided
that at the time of such termination pursuant to this Section 6.1(b) by
such Seller, such Seller is not in default in the performance of its obligations
under this Lock-Up Agreement;
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(c)
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by
Offeror if:
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(i)
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any
Seller has not complied in any material respect with its covenants
contained herein (following written notice to the applicable Seller
of
such non-compliance and provided such default is not rectified by
the
earlier of the date that is 5 days from the date of such notice and
the
business day prior to the Expiry Time) or if any representation or
warranty of any Seller under this Lock-Up Agreement is untrue or
incorrect
in any material respect;
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(ii)
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any
of the conditions of the Offer is not satisfied at the Expiry Time
and
Offeror elects not to waive such condition;
or
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(iii)
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the
Support Agreement is terminated for any
reason,
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provided
that at the time of such termination pursuant to this Section 6.1(c) by
Offeror, Offeror is not in material default in the performance of its
obligations under this Lock-Up Agreement;
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(d)
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no
termination pursuant to this Section 6.1 shall prejudice the rights
of a party as a result of any breach by any other party of its obligations
hereunder and any termination pursuant to Section 6.1(b) shall only
be effective with respect to such terminating Seller;
and
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(e)
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upon
termination of this Lock-Up Agreement in accordance with this Section
6.1,
such Seller shall be entitled to withdraw any of such Seller's Shares
deposited under the Offer.
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ARTICLE 7
GENERAL
7.1 In
this Lock-Up Agreement, unless otherwise expressly stated or the context
otherwise requires:
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(a)
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references
to "herein", "hereby", "hereunder", "hereof" and similar expressions
are
references to this Lock-Up Agreement and not to any particular Section
of
or Schedule to this Lock-Up
Agreement;
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(b)
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references
to an "Article" or a "Section" are references to an Article or a
Section
of this Lock-Up Agreement;
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(c)
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words
importing the singular shall include the plural and vice versa, and
words
importing gender shall include the masculine, feminine and neuter
genders;
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(d)
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the
terms "person" and "business day" shall have the meanings ascribed
thereto
in the Support Agreement;
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(e)
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the
use of headings is for convenience of reference only and shall not
affect
the construction or interpretation hereof;
and
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(f)
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wherever
the term "includes" or "including" is used, it shall be deemed to
mean
"includes, without limitation" or "including, without limitation",
respectively.
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7.2 The
parties waive the application of any rule of law which otherwise would be
applicable in connection with the construction of this Lock-Up Agreement that
ambiguous or conflicting terms or provisions should be construed against the
party who (or whose counsel) prepared the executed agreement or any earlier
draft of the same.
7.3 This
Lock-Up Agreement shall become effective in respect of each Seller upon
execution and delivery thereof by such Seller.
7.4 This
Lock-Up Agreement may be executed by facsimile and in any number of
counterparts, each of which shall be deemed to be original and all of which
taken together shall be deemed to constitute one and the same instrument, and
it
shall not be necessary in making proof of this Lock-Up Agreement to produce
more
than one counterpart.
7.5 Subject
to the terms and conditions of this Lock-Up Agreement, each Seller agrees to
cooperate in good faith and use all reasonable efforts to take, or cause to
be
taken, all action and to do, or cause to be done, all things necessary,
desirable or advisable (a) to facilitate the successful consummation of, and
make effective as promptly as is practicable, the transactions contemplated
by
the Support Agreement, the Offer and this Lock-Up Agreement, and (b) for the
discharge by such Seller of its
- 10
-
obligations
under this Lock-Up Agreement, including its obligations under Applicable Laws,
including in each case the execution and delivery of such documents as another
party hereto may reasonably require.
7.6 The
representations and warranties set forth in this Lock-Up Agreement shall survive
the acquisition by Offeror of the Subject Shares and, notwithstanding such
acquisition, shall continue in full force and effect for the benefit of the
party to whom such representations and warranties are given.
7.7 Each
Seller consents to the disclosure of the substance of this Lock-Up Agreement
in
any press release or any circular relating to the Offer and to the filing of
this Lock-Up Agreement as may be required pursuant to applicable
Laws.
7.8 This
Lock-Up Agreement shall be binding upon and shall enure to the benefit of and
be
enforceable by each of the parties hereto and their respective successors,
assigns, heirs, executors and personal representatives. This Lock-Up
Agreement shall not be assignable by any party except in accordance with Section
7.9.
7.9 This
Lock-Up Agreement and the rights hereunder are not transferable or assignable
by
a Seller or Offeror without the prior written consent of the other (which
consent may be withheld at the discretion of the other) except that Offeror
may
assign all or any part of its rights and obligations under this Lock-Up
Agreement to a corporation whose shares are directly or indirectly wholly owned
by China Minmetals Non-Ferrous Metals Co. Ltd. and/or Jiangxi Copper Company
Limited or collaterally assign this Lock-Up Agreement as security to its
financing sources.
7.10 Time
shall be of the essence of this Lock-Up Agreement.
7.11 If
any term, provision, covenant or restriction of this Lock-Up Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable,
the
remainder of the terms, provisions, covenants and restrictions of this Lock-Up
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated and the parties shall negotiate in good faith to modify
the agreement to preserve each party's anticipated benefits under this Lock-Up
Agreement.
7.12 Each
Seller acknowledges that it:
|
|
(a)
|
has
been advised by Offeror to seek independent legal
advice;
|
|
|
(b)
|
has
sought such independent legal advice or deliberately decided not
to do
so;
|
|
|
(c)
|
understands
its rights and obligations under this Lock-Up Agreement;
and
|
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|
(d)
|
is
executing this Lock-Up Agreement
voluntarily.
|
7.13 Any
notice or other communication required or permitted to be given hereunder shall
be sufficiently given if delivered or sent by facsimile transmission as
follows:
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(a)
|
in
the case of a Seller, to the address set forth opposite such Seller's
Acceptance; and
|
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(b)
|
in
the case of Offeror:
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China
Minmetals Non-Ferrous Metals Co. Ltd.
Xxxx
X000, 0 Xxxxxxx Xxxx
- 00
-
Xxxxxxx
Xxxxxxxx, Xxxxxxx
Xxxxx 000000
Facsimile: +
8610-6849-5215
Attention: Xx.
Xxxxxx Xxxx
and
Jiangxi
Copper Company Limited
00
Xxxxx Xxxxxx
Xxxxx,
Xxxxxxx
Xxxxx 000000
Facsimile: +
8670-1377-7656
Attention: Xx.
Xxx Kebing
with
a copy (which shall not itself constitute notice) to:
Davies
Xxxx Xxxxxxxx & Xxxxxxxx LLP
0
Xxxxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Facsimile: 416.863.0871
Attention: Xxx
X. XxXxxxx
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(c)
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at
such other address as the party to which such notice or other
communication is to be given has last notified the party giving the
same
in the manner provided in this
Section,
|
and
if so given shall be deemed to have been given on the date on which it was
actually received at the address provided herein (if received on a business
day,
if not, the next succeeding business day) and if sent by facsimile transmission
be deemed to have been given at the time of actual receipt of the complete
facsimile transmission at the fax number provided herein (if actually received
prior to 4:30 p.m. (local time at the point of receipt) on a business day,
if
not the next succeeding business day).
7.14 This
Lock-Up Agreement (together with all other documents and instruments referred
to
herein) constitutes the entire agreement between the parties with respect to
the
subject matter hereof and supersedes all other agreements and undertakings,
both
written and oral, among the parties with respect to the subject matter
hereof.
7.15 This
Lock-Up Agreement shall be governed in all respects, including validity,
interpretation and effect, by the Laws of the Province of British Columbia
and
the federal Laws of Canada applicable therein, without giving effect to any
principles of conflict of laws thereof which would result in the application
of
the Laws of any other jurisdiction, and all actions and proceedings arising
out
of or relating to this Lock-Up Agreement shall be heard and determined
exclusively in the courts of the Province of British Columbia.
7.16 Unless
otherwise indicated, all dollar amounts referred to in this Lock-Up Agreement
are expressed in Canadian dollars.
7.17 Each
Seller recognizes and acknowledges that this Lock-Up Agreement is an integral
part of Offeror making the Offer, and that Offeror would not contemplate
proceeding with making the Offer unless this Lock-Up Agreement was entered
into
by each Seller, and that a breach by a Seller of any
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covenants
or other commitments contained in this Lock-Up Agreement will cause Offeror
to
sustain injury for which it would not have an adequate remedy at law for money
damages. Therefore, each Seller agrees that, in the event of any such
breach, Offeror shall be entitled to the remedy of specific performance of
such
covenants or commitments and preliminary and permanent injunctive and other
equitable relief in addition to any other remedy to which they may be entitled,
at law or in equity, and such Seller further agrees to waive any requirement
for
the securing or posting of any bond in connection with the obtaining of any
such
injunctive or other equitable relief.
__________
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If
the foregoing accurately reflects the terms and conditions of our agreement,
would you kindly indicate your acceptance hereof by signing, dating and
returning to the undersigned the enclosed duplicate original of this Lock-Up
Agreement by facsimile or otherwise.
|
CHINA
MINMETALS NON-FERROUS METALS CO. LTD.
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by
|
/s/
Xxxxx Xxxxxxx
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||
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Name: Xx.
Xxxxx Guoping
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|||
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Title: Vice
President
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|||
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JIANGXI
COPPER COMPANY LIMITED
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|||
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by
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/s/
Zha Kebing
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Name: Xx.
Xxx Kebing
|
|||
|
Title:
Deputy Chief Engineer & Senior
Engineer
|
|||
SELLER'S
ACCEPTANCE
Irrevocably
accepted and agreed this 5th
day of
December, 2007.
|
Address
for notice:
|
/s/
Xxxxxxxx Xxxxx
|
||
|
Name: Xxxxxxxx
Xxxxx
|
|
Registered
Holder
|
Number
of
Shares
|
Number
of
Options
|
Number
of
Bonus
Shares
|
|||
|
Xxxxxxxx
Xxxxx
|
73,000
|
270,000
|
50,000
|
SELLER'S
ACCEPTANCE
Irrevocably
accepted and agreed this 5th
day of
December, 2007.
|
Address
for notice:
|
/s/
Xxxxxx Xxx
|
||
|
Name: Xxxxxx
Xxx
|
|
Registered
Holder
|
Number
of
Shares
|
Number
of
Options
|
Number
of
Bonus
Shares
|
|
Xxxxxx
Xxx
|
10,000
|
70,000
|
Nil
|
|
Xxxxxx
Xxx &
Xxxxx
Xxxxxx
|
1,000
|
Nil
|
Nil
|
SELLER'S
ACCEPTANCE
Irrevocably
accepted and agreed this 5th
day of
December, 2007.
|
Address
for notice:
|
/s/
Xxxx Xxxxxx
|
||
|
Name: Xxxx
Xxxxxx
|
|
Registered
Holder
|
Number
of
Shares
|
Number
of
Options
|
Number
of
Bonus
Shares
|
|
Xxxx
Xxxxxx
|
10,000
|
Nil
|
Nil
|
|
Xxxx
Xxxxxx
|
108,000
|
120,000
|
Nil
|
SELLER'S
ACCEPTANCE
Irrevocably
accepted and agreed this 5th
day of
December, 2007.
|
Address
for notice:
|
/s/
Xxxxxxx Xxxxx
|
||
|
Name: Xxxxxxx
Xxxxx
|
|
Registered
Holder
|
Number
of
Shares
|
Number
of
Options
|
Number
of
Bonus
Shares
|
|
Xxxxxxx
Xxxxx
|
65,000
|
260,000
|
Nil
|
SELLER'S
ACCEPTANCE
Irrevocably
accepted and agreed this 5th
day of
December, 2007.
|
Address
for notice:
|
/s/
Xxxxx Xxxx Xxxx
|
||
|
Name: Xxxxx
Xxxx Xxxx
|
|
Registered
Holder
|
Number
of
Shares
|
Number
of
Options
|
Number
of
Bonus
Shares
|
|
Xxxx
Xxxx
|
Nil
|
140,000
|
Nil
|
SELLER'S
ACCEPTANCE
Irrevocably
accepted and agreed this 5th
day of
December, 2007.
|
Address
for notice:
|
/s/
Xxxxxx Xxxxxx
|
||
|
Name: Xxxxxx
Xxxxxx
|
|
Registered
Holder
|
Number
of
Shares
|
Number
of
Options
|
Number
of
Bonus
Shares
|
|
Xxxxxx
Xxxxxx
|
Nil
|
140,000
|
Nil
|
SELLER'S
ACCEPTANCE
Irrevocably
accepted and agreed this 5th
day of
December, 2007.
|
Address
for notice:
|
/s/
Xxxxx X. Xxxxxxxx
|
||
|
Name: Xxxxx
X. Xxxxxxxx
|
|
Registered
Holder
|
Number
of
Shares
|
Number
of
Options
|
Number
of
Bonus
Shares
|
|
Xxxxx
X. Xxxxxxxx
|
5,500
|
168,000
|
Nil
|
SELLER'S
ACCEPTANCE
Irrevocably
accepted and agreed this 5th
day of
December, 2007.
|
Address
for notice:
|
/s/
Xxxxx Xxxxxx
|
||
|
Name: Xxxxx
Xxxxxx
|
|
Registered
Holder
|
Number
of
Shares
|
Number
of
Options
|
Number
of
Bonus
Shares
|
|
Xxxxx
Xxxxxx
|
85,500
|
220,000
|
Nil
|
- -
SELLER'S
ACCEPTANCE
Irrevocably
accepted and agreed this 5th
day of
December, 2007.
|
Address
for notice:
|
/s/
Xxxxxx Xxxxxx
|
||
|
Name: Xxxxxx
Xxxxxx
|
|
Registered
Holder
|
Number
of
Shares
|
Number
of
Options
|
Number
of
Bonus
Shares
|
|
Xxxxxx
Xxxxxx
|
208,450
|
270,000
|
Nil
|
|
Xxxxxxxxx
Xxxxxx
|
3,000
|
Nil
|
Nil
|
|
Xxxxx
Xxxxxx
|
1,500
|
Nil
|
Nil
|
