AGREEMENT FOR THE PURCHASE AND SALE OF MINERAL INTERESTS AND FINANCING OF RUBICON
AGREEMENT
FOR THE PURCHASE AND SALE OF
MINERAL
INTERESTS AND FINANCING OF RUBICON
This
agreement (the “Agreement”) is dated as of May 18, 2007
AMONG:
Rubicon
Minerals Corporation,
a
British Columbia company (“Rubicon”)
AND:
XxXxxx
Capital Corporation,
an
Ontario corporation (“XxXxxx Capital”)
AND:
Evanachan
Limited,
an
Ontario corporation (“Evanachan”)
AND:
Evanachan
(Alaska) Ltd.,
an
Alaska corporation (“Evanachan Alaska”)
AND:
Lexam
Explorations Inc.,
an
Ontario corporation (“Lexam”)
AND:
Lexam
Explorations (U.S.A.) Inc.,
a
Colorado corporation (“Lexam U.S.A.”)
AND:
Xxxxxx
XxXxxx,
an
individual resident in [the Province of Ontario] (“XxXxxx”)
WHEREAS:
A. Rubicon,
XxXxxx Capital, Evanachan and Lexam executed a letter agreement on February
24,
2007 (“Letter Agreement”) as attached hereto as Schedule “A”, pursuant to which
Rubicon agreed to purchase the Alaska Properties (as hereinafter defined) in
exchange for 31,428,571 Rubicon Shares (as hereinafter defined) representing
a
purchase price of $22,000,000 at a deemed price of $0.70 per share and purchase
from Lexam U.S.A. the Nevada and Utah Mineral Rights (as hereinafter defined)
in
exchange for 8,571,429 Rubicon Shares (as hereinafter defined) representing
a
purchase price of $6,000,000 at a deemed price of $0.70 per share, and XxXxxx
and/or his wholly owned companies agreed to subscribe for a minimum private
placement of $10,000,000 in Units (as hereinafter defined) of Rubicon, at a
price of $0.70 per Unit and place with other investors on a best efforts basis
up to an additional $5,000,000 in Units by way of private placement, all as
set
forth in greater detail in the Letter Agreement.
Xxxxx:1861599.5
-1-
X. XxXxxx
Capital, a wholly-owned subsidiary of Evanachan, holds the beneficial interest
in the Block B Mining Claims and the Xxxxxxxxxx Option Agreement and Evanachan
Alaska, a wholly owned subsidiary of Evanachan, holds legal title to the Block
B
Mining Claims and the Xxxxxxxxxx Option Agreement as bare trustee for XxXxxx
Capital.
C. Lexam
U.S.A., an indirectly held wholly owned subsidiary of Lexam, is the record
owner
of the Nevada and Utah Mineral Rights.
D. Rubicon,
XxXxxx Capital, Evanachan, Evanachan Alaska, Lexam, Lexam U.S.A. and XxXxxx
(together, the “Parties”)
wish
to enter into this Agreement to replace and supercede the Letter Agreement
and
set out in greater detail the formal terms and conditions.
NOW
THEREFORE, in consideration of the premises and mutual covenants and warranties
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby expressly acknowledged, the Parties agree as
follow:
| 1. |
DEFINITIONS
|
| 1.1 |
Definitions:
In this Agreement, unless the context otherwise
requires:
|
| (a) |
“Agreement”
means this agreement executed by the Parties.
|
| (b) |
“Affiliate”
has the meaning ascribed to it in the Securities
Act (British
Columbia).
|
| (c) |
“Alaska
Expenditures” has the meaning ascribed thereto in Section
4.5.
|
| (d) |
“Alaska
Properties” means the 100% legal and beneficial right,
title and interest
in the Block B Mining Claims and the option
interest in the Xxxxxxxxxx
Option Agreement and any claims staked
by
XxXxxx Capital or Evanachan Alaska within 50 kilometers of these
properties since February 24, 2007.
|
| (e) |
“Associate”
has the meaning ascribed to it in the Securities
Act
(British Columbia).
|
| (f) |
“Block
B Mining Claims” means the mineral claims legally held by Evanachan Alaska
as described in Schedule “A” to the Share Purchase Agreement.
|
| (g) |
“Business
Day” means a day on which Canadian chartered banks are open for the
transaction of regular business in the City of Toronto, Ontario and
the
City of Vancouver, British
Columbia.
|
| (h) |
“Closing
Date” means May 18, 2007 or such other date as the Parties may agree.
|
| (i) |
“Closing
Time” means 8 a.m. (Vancouver time) on the Closing Date, or such other
time as the Parties may agree.
|
-2-
| (j) |
“Dollar”
or “$” means a dollar of lawful money of
Canada.
|
| (k) |
“Xxxxxxxxxx
Option Agreement” means the option agreement dated February 22, 2007 among
Evanachan, Rimfire Minerals Corporation and Rimfire Alaska Ltd.,
supplemented by a confirmation and acknowledgement dated as of
May
4, 2007, attached as Schedule “B” to the Share Purchase
Agreement.
|
| (l) |
“XxXxxx
Placement” has the meaning set forth in Section 2.3(a).
|
| (m) |
“Nevada
and
Utah Mineral Rights”
means the fee simple mineral interests in
the states
of Nevada and Utah
set forth in Schedule “A” to the Nevada and Utah Mineral Rights Purchase
Agreement subject to the qualifications and limitations stated therein.
|
| (n) |
“Nevada
and Utah Mineral Rights Purchase Agreement” means the agreement to be
signed among Lexam, Lexam U.S.A and Rubicon substantially in the
form
attached hereto as Schedule “C” pursuant to which Rubicon will purchase
the Nevada and Utah Mineral Rights.
|
| (o) |
“Offering”
means the XxXxxx Placement and the purchase and sale of up to an
additional $5,000,000 in Units, if any.
|
| (p) |
“Offering
Jurisdictions” means the Provinces of British Columbia, Alberta, Manitoba
and Ontario, the United States and the states and territories thereof
and
such other provinces and territories of Canada and such other
jurisdictions where the Units are offered to prospective purchasers,
as
the context permits or requires,
collectively.
|
| (q) |
“Parties”
has the meaning set forth in Recital
D.
|
| (r) |
“Person”
means an individual, a firm, a corporation, a syndicate, a partnership,
a
trust, an association, an unincorporated organization, a joint venture,
an
investment club, a government or an agency or political subdivision
thereof and every other form of legal or business entity of whatsoever
nature or kind;
|
| (s) |
“Rubicon
Shareholders Meeting” has the meaning set forth in Section
3.1.
|
| (t) |
“Rubicon
Shares” means the common shares without par value in the capital of
Rubicon.
|
| (u) |
“Securities
Laws” means the securities legislation and regulations of, and the
instruments, policies, rules, orders, codes, notices and interpretation
notes of the applicable securities regulatory authority or applicable
securities regulatory authorities of, the applicable jurisdiction
or
jurisdictions collectively.
|
| (v) |
“Share
Purchase Agreement” means the agreement to be signed between Rubicon and
Evanachan substantially in the form attached hereto as Schedule “B”
pursuant to which Rubicon will purchase all of the issued and outstanding
shares of XxXxxx Capital and Evanachan Alaska.
|
-3-
| (w) |
“Subscription
Agreement” means the form of subscription agreement for Units to be
offered for sale by Rubicon hereunder attached hereto as Schedule
“D”.
|
| (x) |
“Stock
Exchanges” means the Toronto Stock Exchange and the American Stock
Exchange collectively.
|
| (y) |
“Units”
means units of Rubicon being offered for sale by Rubicon pursuant
to the
Offering, each consisting of one Rubicon Share and one-half of one
Warrant.
|
| (z) |
“Warrants”
means the transferable warrants of Rubicon comprising part of the
Units,
each whole Warrant entitling the holder thereof to acquire one Warrant
Share at any time from the date of issue of the Warrants until 4:00
p.m.
(Vancouver time) on the date which is 24 months after the Closing
Date, at
an exercise price of $1.50 per Warrant Share, subject to adjustment.
|
| (aa) |
“Warrant
Share” means a Rubicon Share issuable upon exercise of a Warrant.
|
| 2. |
TRANSACTIONS
|
| 2.1 |
Purchase
and Sale of Evanachan (Alaska) and XxXxxx
Capital
|
| (a) |
Rubicon
agrees to purchase and Evanachan agrees to sell all of the issued
and
outstanding shares of Evanachan Alaska and all of the issued and
outstanding shares of XxXxxx Capital, all on the terms and conditions
set
out in the Share Purchase
Agreement.
|
| (b) |
Evanachan
and Rubicon agree to sign the Share Purchase Agreement on or prior
to the
Closing Time.
|
| 2.2 |
Purchase
and Sale of the Nevada and Utah Mineral
Rights
|
| (a) |
Rubicon
agrees to cause its indirectly wholly-owned subsidiary to purchase,
and
Lexam U.S.A. agrees, and Lexam agrees to cause Lexam U.S.A. to sell,
the
Nevada and Utah Mineral Rights all on the terms and conditions set
out in
the Nevada and Utah Mineral Rights Purchase
Agreement.
|
| (b) |
Lexam,
Lexam U.S.A., and Rubicon agree, and Rubicon agrees to cause any
applicable indirectly wholly-owned subsidiary of Rubicon, to sign
the
Nevada and Utah Mineral Rights Purchase Agreement on or prior to
the
Closing Time.
|
| 2.3 |
Private
Placement
|
| (a) |
Rubicon
agrees to sell and XxXxxx agrees to purchase (through Evanachan and
XxXxxx
Trading LP), at least 14,285,715 in Units at the Closing Time for
$0.70
per Unit (the “XxXxxx Placement”), pursuant to the terms and conditions of
the Subscription Agreement.
|
-4-
| (b) |
The
Parties agree that Rubicon shall sell up to an additional 7,142,857
Units
at $0.70 per Unit pursuant to the terms and conditions of the Subscription
Agreement, such purchase and sale to be effected at the Closing Time.
|
| 3. |
RUBICON
SHAREHOLDER MEETING
|
| 3.1 |
Shareholder
Approval of the Transactions
|
Rubicon
shall call a meeting of its shareholders (“Rubicon Shareholders Meeting”) to
seek the approval of its shareholders of, inter
alia,
the
transactions described in Sections 2.1, 2.2 and 2.3 and the resulting change
in
control of Rubicon, and such approval shall be sought under a single resolution
for all applicable transactions and matters. The Parties acknowledge that as
of
the date hereof, the Rubicon Shareholders Meeting is scheduled to be held on
May
14, 2007.
| 4. |
COVENANTS
|
If
all of
the conditions of this Agreement are satisfied and the transactions described
herein close at the Closing Time, the following express covenants are hereby
agreed to by the Parties.
| 4.1 |
Voting
Agreement
|
For
a
period of two years from the Closing Date:
| (a) |
XxXxxx
and Evanachan shall vote their Rubicon Shares, or cause the Rubicon
Shares
under their direct or indirect control to support: (i) the management
of
Rubicon; and (ii) the management proposed nominees for the board
of
directors of Rubicon;
|
| (b) |
XxXxxx
(through Evanachan, Lexam U.S.A. or XxXxxx Trading LP) shall have
the
right to nominate one designee to be a board member on the management
proposed nominee for the board of directors of Rubicon (as long as
XxXxxx,
Evanachan, Lexam U.S.A., XxXxxx Trading LP and their respective Affiliates
and Associates hold in the aggregate, 10% of the issued and outstanding
Rubicon Shares);
|
| (c) |
XxXxxx
and Evanachan shall cause their Board nominee to vote in favour of
the
grant of new Rubicon stock options where such options proposed to
be
granted do not exceed 5% of the issued and outstanding Rubicon Shares
(calculated on the number of issued and outstanding Rubicon Shares
after
the Closing Date); and
|
| (d) |
XxXxxx
and Evanachan shall not be obligated to vote their Rubicon Shares
in
favour of any major corporate transaction that requires a special
resolution of the shareholders of Rubicon to be
approved.
|
-5-
| 4.2 |
Special
Advisor
|
Rubicon
shall appoint XxXxxx as a special advisor to Rubicon for a period of two years
from the Closing Date, and XxXxxx will accept such appointment.
| 4.3 |
Right
of First Refusal
|
Rubicon
hereby agrees that it will not engage in any offering of debt or equity
securities of Rubicon unless XxXxxx, Evanachan, Lexam U.S.A. and XxXxxx Trading
LP are granted the right to participate pro-rata in such financing, provided
that XxXxxx, Evanachan, Lexam U.S.A. and XxXxxx Trading LP together hold a
minimum 10% equity interest of the issued and outstanding Rubicon Shares
calculated on an undiluted basis and regulatory approval is obtained for such
participation.
| 4.4 |
Budget
Allocation
|
Subject
to the availability of adequate manpower and equipment for exploration in the
areas in which the properties are located, Rubicon agrees to spend a minimum
of:
| (a) |
$5,000,000
to explore Rubicon’s Red Lake properties in the first twelve months after
the Closing Date;
|
| (b) |
$5,000,000
to
explore the Alaska Properties during
the first two years after the Closing Date
with such amount to be allocated to the Xxxxxxxxxx Option Agreement
to the
extent necessary to comply with its terms during the first year after
the
Closing Date (and thereafter in the sole discretion of Rubicon);
and
|
| (c) |
$500,000
to explore the Nevada and Utah Mineral Rights in the first twelve
months
after the Closing Date.
|
| 4.5 |
Expenditures
- Alaska
|
Rubicon
hereby agrees, at the Closing Time, to reimburse Evanachan, Evanachan Alaska
and
XxXxxx Capital for any and all expenses incurred by any of them relating to
the
exploration of the Alaska Properties up to an aggregate amount of $500,000
(collectively, the “Alaska Expenditures”) incurred after the date of the Letter
Agreement. The current estimate for such exploration expenses is approximately
$350,000.
This
current estimate does not include any expenditures incurred prior to February
24, 2007 as Evanachan hereby confirms that they have already been paid in full.
The Alaska Expenditures shall not exceed $500,000.
Rubicon
shall pay the amount of the Alaska Expenditures to Evanachan at the Closing
Time.
| 4.6 |
Payment
of XxXxxx’x Legal Fees
|
Rubicon
will pay up to $65,000 of the legal fees of XxXxxx and Evanachan, to be
distributed pursuant to the sole discretion of XxXxxx from the proceeds of
the
sale of Units. XxXxxx shall deliver to Rubicon a copy of all invoices relating
to such legal fees for which payment by Rubicon is sought prior to payment
being
made by Rubicon.
-6-
| 5. |
REPRESENTATIONS
AND WARRANTIES
|
| 5.1 |
Representations
and Warranties of Corporate
Parties
|
Each
Party (other than XxXxxx) hereby represents and warrants to the other Parties
as
follows and acknowledges and confirms that the other Parties are relying upon
each of such representations and warranties in entering into this Agreement
and
completing the transactions contemplated herein:
| (a) |
Each
Party is a valid and subsisting corporation under the laws of its
jurisdiction of incorporation or continuance and has all requisite
corporate power and authority to carry on its business as now conducted
or
proposed to be conducted and to own or lease and operate the property
and
assets thereof and each Party has all requisite corporate power and
authority to enter into, execute and deliver this Agreement and to
carry
out the obligations described
herein.
|
| (b) |
Each
Party is licensed, registered or qualified as an extra-provincial
or
foreign corporation in all jurisdictions where the character of the
property or assets thereof owned or leased or the nature of the activities
conducted by it make licensing, registration or qualification necessary
and is carrying on the business thereof in compliance with all applicable
laws, rules and regulations of each such
jurisdiction.
|
| (c) |
None
of the execution and delivery of this Agreement, the compliance by
each
Party with the provisions of this Agreement or the consummation of
the
transactions contemplated herein do or will (i) require the consent,
approval, or authorization, order or agreement of, or registration
or
qualification with, any governmental agency, body or authority, court,
stock exchange, securities regulatory authority or other Person,
except
(A) as provided herein or in the Share Purchase Agreement or the
Nevada
and Utah Mineral Rights Purchase Agreement, (B) such as have been
obtained, or (C) such as may be required under the Securities Laws
of the
Offering Jurisdictions and the policies of the Stock Exchanges and
will be
obtained by the Closing Date, or (ii) conflict with or result in
any
breach or violation of any of the provisions of, or constitute a
default
under, any indenture, mortgage, deed of trust, lease or other agreement
or
instrument to which a Party or by which any of them or any of the
properties or assets thereof is bound, or the articles or by-laws
of a
Party or any resolution passed by the directors (or any committee
thereof)
or shareholders of a Party, or any statute or any judgment, decree,
order,
rule, policy or regulation of any court, governmental authority,
arbitrator, stock exchange or securities regulatory authority applicable
to a Party or any of the properties or assets thereof which could
have a
material adverse effect on the condition (financial or otherwise),
business, properties or results of operations of a
Party.
|
| (d) |
Each
Party has full corporate power and authority to enter into this Agreement
and to do all acts and things and execute and deliver all documents
as are
required hereunder and thereunder to be done, observed, performed
or
executed and delivered by it in accordance with the terms hereof
and
thereof and each Party has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement
and to
observe and perform the provisions of this Agreement in accordance
with
the provisions hereof.
|
-7-
| (e) |
This
Agreement has been authorized, executed and delivered by each Party
and
constitutes a valid and legally binding obligation of each Party
enforceable against each Party in accordance with the terms
thereof.
|
| 5.2 |
Representations
and Warranties of Evanachan
|
Evanachan
hereby represents and warrants to Rubicon as follows and acknowledges and
confirms that Rubicon is relying upon each of such representations and
warranties in entering into this Agreement and completing the transactions
contemplated herein:
| (a) |
Each
of XxXxxx Capital and Evanachan Alaska is a valid and subsisting
corporation under the laws of its jurisdiction of incorporation or
continuance and has all requisite corporate power and authority to
carry
on its business as now conducted and to own or lease the property
and
assets thereof.
|
| (b) |
XxXxxx
Capital is the sole beneficial owner of the Alaska
Properties.
|
| (c) |
Evanachan
Alaska holds legal title to the Alaska Properties solely as nominee
and
bare trustee for XxXxxx Capital.
|
| (d) |
No
person, including Evanachan (except as a result of its ownership
of all of
the shares of XxXxxx Capital and Evanachan Alaska) has any right
in equity
or law, absolute, contingent or otherwise to the Alaska
Properties.
|
| 6. |
CONDITIONS
|
| 6.1 |
Conditions
in favour of all of the Parties
|
The
respective obligations of the Parties hereto to consummate the transactions
described in this Agreement are subject to the satisfaction of the following
condition on or before the Closing Time:
| (a) |
no
provision of any applicable laws and no judgement shall be in effect
that
restrains or enjoins or otherwise prohibits the consummation of the
transactions contemplated by this Agreement.
|
| 6.2 |
Conditions
in favour of Rubicon
|
-8-
The
respective obligations of Rubicon to consummate the transactions described
in
this Agreement are subject to the satisfaction (or waiver by Rubicon) of the
following conditions on or before the Closing Time:
| (a) |
requisite
approval of the acquisitions by Rubicon of the shares in the capital
of
XxXxxx Capital and Evanachan Alaska and the Nevada and Utah Mineral
Rights, the Offering and the change of control to XxXxxx shall be
received
from the Rubicon shareholders at the Rubicon Shareholders Meeting;
|
| (b) |
Rubicon
having obtained all required regulatory approvals for the acquisition
of
XxXxxx Capital and Evanachan Alaska, the acquisition of the Nevada
and
Utah Mineral Rights and the issuance of Rubicon Shares thereunder
and the
issuance of the Units under the Offering, the additional listing
of the
Rubicon Shares issued pursuant to the Offering, the acquisition of
XxXxxx
Capital and Evanachan Alaska and the acquisition of the Nevada and
Utah
Mineral Rights on the Toronto Stock Exchange and The American Stock
Exchange;
|
| (c) |
Rubicon
being satisfied in its sole discretion with the results of due diligence
on the Alaska Properties, XxXxxx Capital, Evanachan Alaska and the
Nevada
and Utah Mineral Rights, including review of title information provided
to
Rubicon concerning the Nevada and Utah Mineral Rights;
|
| (d) |
each
of the representation and warranties of Evanachan under the Share
Purchase
Agreement shall be true and correct in all material respects as of
the
Closing Time;
|
| (e) |
Evanachan
shall have performed or complied with, in all material respects,
each of
its obligations, covenants and agreements under the Share Purchase
Agreement that were to be performed by it prior to and at the Closing
Time;
|
| (f) |
each
of the representations and warranties of Lexam and Lexam U.S.A. under
the
Nevada and Utah Mineral Rights Purchase Agreement shall be true and
correct in all material respects as of the Closing
Time;
|
| (g) |
Lexam
and Lexam U.S.A. shall have performed or complied with, in all material
respects, each of its obligations, covenants and agreements under
the
Nevada and Utah Mineral Rights Purchase Agreement that were to be
performed by it prior to and at the Closing
Time;
|
| (h) |
each
of the representations and warranties of under each of the Subscription
Agreements in respect of the Offering shall be true and correct and
as of
the Closing Time; and
|
| (i) |
XxXxxx,
Evanachan or such other placee to the Offering shall have performed
or
complied with, in all material respects, each of its obligations,
covenants and agreements under the applicable Subscription Agreements
that
were to be performed by it prior to and at the Closing
Time.
|
-9-
| 6.3 |
Conditions
in favour of XxXxxx and
Evanachan
|
The
respective obligations of XxXxxx and Evanachan to consummate the transactions
described in this Agreement are subject to the satisfaction (or waiver by each
of XxXxxx and Evanachan) of the following conditions on or before the Closing
Time:
| (a) |
requisite
approval of the acquisitions by Rubicon of the shares in the capital
of
XxXxxx Capital and Evanachan Alaska and the Nevada and Utah Mineral
Rights, the Offering and the change of control to XxXxxx shall be
received
from the Rubicon shareholders at the Rubicon Shareholders Meeting;
|
| (b) |
Rubicon
having obtained all required regulatory approvals for the acquisition
of
XxXxxx Capital and Evanachan Alaska, the acquisition of the Nevada
and
Utah Mineral Rights and the issuance of Rubicon Shares thereunder
and the
issuance of the Units under the Offering, the additional listing
of the
Rubicon Shares issued pursuant to the Offering, the acquisition of
XxXxxx
Capital and Evanachan Alaska and the acquisition of the Nevada and
Utah
Mineral Rights on the Toronto Stock Exchange and The American Stock
Exchange;
|
| (c) |
XxXxxx
and Evanachan being satisfied in their sole discretion with the results
of
due diligence on Rubicon;
|
| (d) |
each
of the representation and warranties of Rubicon under the Share Purchase
Agreement shall be true and correct under the date of that agreement
and
as of the Closing Time;
|
| (e) |
Rubicon
shall have performed or complied with, in all material respects,
each of
its obligations, covenants and agreements under the Share Purchase
Agreement that were to be performed by it prior to the Closing Time;
|
| (f) |
each
of the representations and warranties of Rubicon under the Subscription
Agreements for the XxXxxx Placement shall be true and correct under
the
date of that agreement and as of the Closing Time;
and
|
| (g) |
Rubicon
shall have performed or complied with, in all material respects,
each of
its obligations, covenants and agreements under the Subscription
Agreements for the XxXxxx Placement that were to be performed by
it prior
to the Closing Time.
|
| 6.4 |
Conditions
in favour of Lexam and Lexam U.S.A.
|
The
respective obligations of Lexam and Lexam U.S.A. to consummate the transactions
described in this Agreement are subject to the satisfaction (or waiver by each
of Lexam and Lexam U.S.A.) of the following conditions on or before the Closing
Time:
-10-
| (a) |
requisite
approval of the acquisitions by Rubicon of the shares in the capital
of
XxXxxx Capital and Evanachan Alaska and the Nevada and Utah Mineral
Rights, the Offering and the change of control to XxXxxx shall be
received
from the Rubicon shareholders at the Rubicon Shareholders Meeting;
|
| (b) |
Rubicon
having obtained all required regulatory approvals for the acquisition
of
XxXxxx Capital and Evanachan Alaska, the acquisition of the Nevada
and
Utah Mineral Rights and the issuance of Rubicon Shares thereunder
and the
issuance of the Units under the Offering, the additional listing
of the
Rubicon Shares issued pursuant to the Offering, the acquisition of
XxXxxx
Capital and Evanachan Alaska and the acquisition of the Nevada and
Utah
Mineral Rights on the Toronto Stock Exchange and The American Stock
Exchange, and such approvals shall be conditional, if at all, only
on
closing of the purchase and sale of the XxXxxx Capital, Evanachan
Alaska,
the Nevada and Utah Mineral Rights and the Offering;
|
| (c) |
Lexam
and Lexam U.S.A. being satisfied in their sole discretion with the
results
of due diligence on Rubicon;
|
| (d) |
each
of the representation and warranties of Rubicon under the Nevada
and Utah
Mineral Rights Purchase Agreement shall be true and correct under
the date
of that agreement and as of the Closing Time;
and
|
| (e) |
Rubicon
shall have performed or complied with, in all material respects,
each of
its obligations, covenants and agreements under the Nevada and Utah
Mineral Rights Purchase Agreement that were to be performed by it
prior to
the Closing Time.
|
| 7. |
TERMINATION
|
| 7.1 |
Termination
by Agreement of the Parties
|
If
all of
the Parties hereto agree in writing, this Agreement may be terminated
accordingly.
| 7.2 |
Termination
if Rubicon Shareholders Reject the
Transactions
|
Notwithstanding
any other provision in this Agreement, any Party may terminate this Agreement
if
section 6.2(a) has not been satisfied by the Closing Date.
| 7.3 |
Termination
Rights of Rubicon
|
If
any
Party other than Rubicon has breached any of its material representations,
warranties, agreements, covenants or obligations in this Agreement, the Share
Purchase Agreement, the Nevada and Utah Mineral Rights Purchase Agreement or
the
Subscription Agreements entered into in respect of the XxXxxx Placement, and
such breach is not curable by the relevant Party within five (5) Business Days
after notice thereof has been received by the Party alleged to be in breach,
then Rubicon shall have the right to terminate this Agreement, the Share
Purchase Agreement, the Nevada and Utah Mineral Rights Purchase Agreement and
all Subscription Agreements tendered to Rubicon pursuant to the Offering shall
terminate forthwith, and no damages or break fees or other payments shall be
owing from Rubicon to the other Parties hereto whatsoever.
-11-
| 7.4 |
Termination
Rights of Evanachan, Evanachan Alaska, Lexam, Lexam U.S.A. and
XxXxxx
|
If
Rubicon has breached any of its material representations, warranties,
agreements, covenants or obligations in this Agreement, the Share Purchase
Agreement, the Nevada and Utah Mineral Rights Purchase Agreement or the
Subscription Agreements entered into in respect of the XxXxxx Placement, and
such breach is not curable by Rubicon within five (5) Business Days after notice
thereof has been received by Rubicon, then Evanachan, XxXxxx Capital, Evanachan
Alaska, Lexam, Lexam U.S.A. and XxXxxx, as the case may be, shall have the
right
to terminate this Agreement and the Share Purchase Agreement, the Nevada and
Utah Mineral Rights Purchase Agreement and all Subscription Agreements tendered
to Rubicon pursuant to the Offering shall terminate forthwith, and no damages
or
break fees or other payments shall be owing from Evanachan, Lexam, Lexam U.S.A.
and XxXxxx or any of them to the other Parties hereto whatsoever.
| 7.5 |
Manner
and Effect of Termination
|
Termination
shall be effected by the giving of written notice to that effect by the Party
seeking termination. If this Agreement is validly terminated, then this
Agreement shall become null and void and of no further force and effect and
no
Party shall be obligated to any other Party hereunder; provided,
however,
that:
| (a) |
termination
shall not affect the rights and remedies available to a Party hereunder
to
the extent that such termination results from the breach by a Party
hereto
of any of its representations, warranties or covenants set forth
in this
Agreement; and
|
| (b) |
where
a specific remedy for termination has been provided under this Agreement
(such as section 7.6), such remedy shall be the sole and specific
remedy
for such termination.
|
| 7.6 |
Certain
Payments Upon Termination
|
If
the
Agreement is terminated on the basis of section 6.2(a), namely that a majority
of the shareholders represented in person and by proxy at the Rubicon
Shareholders Meeting have not voted in favour of proceeding with the
transactions, then Rubicon shall pay an aggregate break fee of $1,290,000 (which
represents 3% of $43,000,000) in cash or Rubicon Shares (subject to regulatory
approval) to Evanachan, Lexam U.S.A., and the private placement placees (other
than Evanachan) in the amounts listed as follows:
| (a) |
Evanachan
- $960,000 in cash or Rubicon Shares (subject to regulatory approval),
at
the election of Rubicon;
|
| (b) |
Lexam
U.S.A. - $180,000 in cash or Rubicon Shares (subject to regulatory
approval), at the election of Rubicon; and
|
-12-
| (c) |
Private
Placement placees other than Evanachan (who subscribed for an aggregate
amount of $5,000,000 in the private placement) - $150,000 in cash
or
Rubicon Shares (subject to regulatory approval), at the election
of
Rubicon, and in proportion to the amount they each subscribed for
in the
private placement.
|
| 8. |
GENERAL
|
| 8.1 |
Headings
|
The
division of this Agreement into articles and sections and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement. The terms "this Agreement,"
"hereof," "hereunder", "herein" and similar expressions refer to this Agreement
and not to any particular article, section or other portion hereof and include
any agreement supplemental thereto and any exhibits attached hereto. Unless
something in the subject matter or context is inconsistent therewith, reference
herein to articles, sections and paragraphs are to articles, sections,
subsections and paragraphs of this Agreement.
| 8.2 |
Number
and Gender
|
Words
importing the singular number only shall include the plural and vice versa,
words importing the masculine gender shall include the feminine gender and
neuter and vice versa.
| 8.3 |
Severability
|
If
one or
more of the provisions contained in this Agreement shall be invalid, illegal
or
unenforceable in any respect under any applicable law, the validity, legality
or
enforceability of the remaining provisions hereof shall not be affected or
impaired thereby. Each of the provisions of this Agreement is hereby declared
to
be separate and distinct.
| 8.4 |
Notices
|
All
notices or other communications to be given hereunder shall be delivered by
hand
or by telecopier or by scanned document delivered by email, and if delivered
by
hand, shall be deemed to have been given on the date of delivery or, if sent
by
telecopier or by scanned document delivered by email, on the date of
transmission if sent before 2:00 p.m. (Vancouver time) and such day is a
Business Day or, if not, on the first Business Day following the date of
transmission.
Notices
to Rubicon shall be addressed to:
Rubicon
Minerals Corporation
000
Xxxx
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx X0X 0X0
Attention:
Xxxxx
Xxxxxxx, President and Chief Executive Officer
Telecopier: (000)
000-0000
Email:
xxxxxxx@xxxxxxxxxxxxxxx.xxx
-13-
Notices
to Evanachan and Evanachan Alaska shall be addressed to:
Evanachan
Limited and Evanachan (Alaska) Ltd.
00
Xxxxxx
Xxxxxx
0xx
Xxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention:
Xxxxxx
X.
XxXxxx, President
Telecopier: (000)
000-0000
Email:
Xxx@xxxxxx.xxx
Notices
to Lexam and Lexam U.S.A. shall be addressed to:
Lexam
Explorations Inc. and Lexam Explorations (U.S.A.) Inc.
00
Xxxxxx
Xxxxxx
0xx
Xxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention:
Xxxxxx
X.
XxXxxx, President
Telecopier: (000)
000-0000
Email:
Xxx@xxxxxx.xxx
Notices
to Xxxxxx XxXxxx shall be addressed to:
Xxxxxx
XxXxxx
00
Xxxxxx
Xxxxxx
0xx
Xxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention:
Xxxxxx
X.
XxXxxx
Telecopier: (000)
000-0000
Email:
Xxx@xxxxxx.xxx
Any
Party
may change its address for service aforesaid by notice in writing to the other
Parties hereto specifying its new address for service hereunder.
| 8.5 |
Further
Assurances
|
Each
Party hereto shall from time to time at the request of the other Party hereto
do
such further acts and execute and deliver such further instruments, deeds and
documents as shall be reasonably required in order to fully perform and carry
out the provisions of this Agreement. The Parties hereto agree to act honestly
and in good faith in the performance of their respective obligations
hereunder.
| 8.6 |
Successors
and Assigns
|
Except
as
otherwise provided, this Agreement shall enure to the benefit of and shall
be
binding upon the Parties hereto and their respective successors and permitted
assigns. Any assignment of this Agreement shall require the prior written
consent of all of the other Parties to this Agreement.
-14-
| 8.7 |
Entire
Agreement
|
The
terms
of this Agreement express and constitute the entire agreement between the
Parties hereto with respect to the subject matter hereof and no implied term
or
liability of any kind is created or shall arise by reason of anything in this
Agreement.
| 8.8 |
Time
of Essence
|
Time
is
of the essence of this Agreement.
| 8.9 |
Amendments
|
The
provisions of this Agreement may only be amended with the written consent of
all
of the Parties hereto.
| 8.10 |
Language
|
The
Parties hereto acknowledge and confirm that they have requested that this
Agreement as well as all notices and other documents contemplated hereby be
drawn up in the English language. Les Parties aux présentes reconnaissent et
confirment qu'elles ont convenu que la présente convention ainsi que tous xxx
xxxx et documents qui s'y rattachent soient rédigés en langue
anglaise.
| 8.11 |
Governing
Law
|
This
Agreement shall be governed by and construed in accordance with the laws of
the
Province of British Columbia and the laws of Canada applicable therein and
the
Parties hereto irrevocably attorn to the non-exclusive jurisdiction of the
courts of the Province of British Columbia.
| 8.12 |
Counterparts
|
This
Agreement may be executed in two or more counterparts which when taken together
shall constitute one and the same agreement. Delivery of counterparts may be
effected by courier of an original, facsimile transmission or email of a scanned
signature.
| 8.13 |
Waiver
|
No
failure on the part of any Party to exercise any power, right, privilege or
remedy under this Agreement, and no delay on the part of any Party in exercising
any power, right, privilege or remedy under this Agreement, shall operate as
a
waiver of such power, right, privilege or remedy; and no single or partial
exercise of any such power, right, privilege or remedy shall preclude any other
or further exercise thereof or of any other power, right, privilege or remedy.
No Party shall be deemed to have waived any claim arising out of this Agreement,
or any power, right, privilege or remedy under this Agreement, unless the waiver
of such claim, power, right, privilege or remedy is expressly set forth in
a
written instrument duly executed and delivered on behalf of such Party; and
any
such waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
-15-
| 8.14 |
Severability
|
Any
term
or provision of this Agreement that is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable in any situation in
any
jurisdiction shall not affect the validity or enforceability of the remaining
terms and provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction. If the
final judgment of a court of competent jurisdiction or other authority declares
that any term or provision hereof is invalid, void or unenforceable, then the
Parties hereto agree that the court making such determination shall have the
power to reduce the scope, duration, area or applicability of the term or
provision, to delete specific words or phrases, or to replace any invalid,
void
or unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid
or
unenforceable term or provision.
| 8.15 |
Interpretation
of Representations
|
Each
representation and warranty made in this Agreement or pursuant hereto is
independent of all other representations and warranties made by the same Parties
hereto, whether or not covering related or similar matters, and must be
independently and separately satisfied.
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date
first written above.
Evanachan
Limited XxXxxx
Capital Corporation
per:
“Xxxxxx
XxXxxx” per:
“Xxxxxx
XxXxxx”
Authorized
Signatory Authorized
Signatory
Date:_____________________ Date:____________________
Evanachan
(Alaska) Ltd. Lexam
Explorations (U.S.A.) Inc.
per:
“Xxxxxx
XxXxxx” per:
“Xxxxxx
XxXxxx”
Authorized
Signatory Authorized
Signatory
Date:_____________________ Date:____________________
Lexam
Explorations Inc. Rubicon
Minerals Corporation
per:
“Xxxxxx
XxXxxx” per:“Xxxxx
Xxxxxxx”
Authorized
Signatory Authorized
Signatory
-16-
|
WITNESS
“Xxxxx
Xxxxxxx”
(Signature)
Xxxxx
X. Xxxxxxx
(Print
Name)
00-0000
Xxxxxx Xxxx, Xxxxxxxx, XX X0X0X0
(Address)
|
)
)
)
)
)
)
)
)
)
)
|
“Xxxxxx
XxXxxx”
Xxxxxx
XxXxxx
|
Xxxxx:1861599.5
-17-
-
-
Schedule
“A”
Letter
Agreement dated February 24, 2007 (including Schedules “A”, “B” and
“C”)
Xxxxx:1861599.5
-18-
-
-
Schedule
“B”
Share
Purchase Agreement
(Alaska
Properties)
Xxxxx:1861599.5
-19-
-
-
Schedule
“C”
Nevada
and Utah Mineral Rights Purchase Agreement
Xxxxx:1861599.5
-20-
-
-
Schedule
“D”
Form
of Subscription Agreement
