AGREEMENT (Baboon Basin)
Exhibit
99.2
(Baboon
Basin)
This
AGREEMENT
effective as of November , 2007 (the “Effective Date”) is by and between
LEONGATHA
MANAGEMENT INC.,
having
its Head Office at Pasea Estae, Portola, British Virgin Islands (“Leongatha”)
and ENDEAVOR
URANIUM, INC.,
a
Nevada corporation having its executive offices at Denver Place, 000
00xx
Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 (“Endeavor”).
RECITALS:
WHEREAS,
Leongatha entered into an Assignment Agreement with an independent third party
company (INDCO), INDCO is a party to an Agreement of Sale and Assignment
(“Agreement of Sale”) with Mayan Minerals Ltd. (“Mayan”) dated July 30,
2007;
WHEREAS,
Pursuant to the Agreement of Sale, INDCO received an assignment of all of
Mayan’s rights and interests in an Agreement of Sale with Xxxxxx Xxxxxxxx and
Xxxxx Xxxxxxxx and their wives dated July 19, 2007 (the “Xxxxxxxx/Xxxxxxxx
Agreement”) - which grants the right to purchase 12 non-patented mineral claims
located in Montrose County, Colorado, U.S.A. therein described (the
“Xxxxxxxx/Xxxxxxxx Claims”); and
WHEREAS,
Pursuant
to the Agreement of Sale, INDCO paid Mayan $100,000 - to reimburse Mayan for
the
One Hundred Thousand Dollars ($100,000) paid by it on the signing of the
Xxxxxxxx/Xxxxxxxx Agreement.
NOW
THEREFORE,
in
consideration of the premises, covenants and agreements hereinafter contained,
the Parties agree as follows:
A. Leongatha
hereby sells, transfers and assigns to Endeavor all of Leongatha’s rights,
titles, interests and obligations held or existing pursuant to the Agreement
of
Sale.
B. In
consideration of the assignment contained in Clause 1 Endeavor will pay and
deliver to Leongatha:
| (a) |
Simultaneously
with the execution hereof; (i) One Hundred Thousand Dollars
($100,000); and (ii) four million shares (4,000,000) of the Common
Stock
of Endeavor (the “Shares”).
|
| (b) |
Simultaneously
with Endeavor giving the election notice referred to in Clause 3
of the
Agreement of Sale, the sum of One Million Dollars
($1,000,000).
|
C.
The
Parties acknowledge that if Endeavor gives the election notice anticipated
by
Clause 3 of the Agreement of Sale, it is obligated and will pay the $2,900,000
required to be paid under the Xxxxxxxx/Xxxxxxxx Agreement to Mr. and Mss.
Xxxxxxxx and Xxxxxxxx and the $300,000 required to be paid to
Mayan.
1
ARTICLE
I
DEFINITIONS
1.1 Definitions.
In
addition to the terms defined elsewhere in this Agreement the following terms
have the meanings indicated in this Section
1.1:
“Action”
shall
have the meaning ascribed to such term in Section
3.1(j).
“Affiliate”
means
any Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 144 under the Securities Act of
1933,
as amended to date (the “Securities Act”). With respect to Leongatha, any
investment fund or managed account that is managed on a discretionary basis
by
the same investment manager as such Leongatha will be deemed to be an Affiliate
of Leongatha.
“Closing”
means
the closing of the purchase and sale of the shares of the Company’s common stock
pursuant to Section 2.1.
“Closing
Date”
means
the day when this Agreement have been executed and delivered by each party
thereto to the other, and all conditions precedent to Endeavor’s obligations to
pay the Purchase Price have been satisfied or waived and its obligations to
deliver the Shares have been satisfied or waived.
“Commission”
means
the Securities and Exchange Commission.
“Common
Stock”
means
the common stock of the Endeavor.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“GAAP”
shall
have the meaning ascribed to such term in Section
3.1(h).
“Liens”
means
a
lien, charge, security interest, encumbrance, right of first refusal, preemptive
right or other restriction.
“Losses”
means
any and all losses, claims, damages, liabilities, settlement costs and expenses,
including without limitation costs of preparation and reasonable attorneys'
fees.
“Material
Adverse Effect”
shall
have the meaning assigned to such term in Section 3.1(b).
“Material
Permits”
shall
have the meaning ascribed to such term in Section 3.1(l).
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“Person”
means
an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Purchase
Price”
means
the Shares and sums of $1,000,000 and $2,900,000 payable to Leongatha and Mayan,
respectively, as the case may be.
“Regulation
S”
means
Regulation S promulgated by the Commission pursuant to the Securities Act,
as
such Regulation may be amended from time to time, or any similar regulation
or
rule hereafter adopted by the Commission having substantially the same effect
of
such Regulation.
“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“SEC
Reports”
shall
have the meaning ascribed to such term in Section
3.1(h).
ARTICLE
II
PURCHASE
AND SALE
2.1 Closing.
On the
Closing Date, Endeavor shall purchase from Leongatha all of its rights, title
and interest in and to “Xxxxxxxx/Xxxxxxxx Chains” and Endeavor shall issue to
Leongatha, the Shares and pay the balance of the Purchase Price to Endeavor
and
Mayan as required. Upon satisfaction of the conditions set forth in Section
2.2,
the
Closing shall occur at the offices Endeavor or such other location as the
parties shall mutually agree.
2.2 Conditions
to Closing
.
The
Closing is subject to the satisfaction or waiver by the party to be benefited
thereby of the following conditions:
(a) Endeavor
shall have delivered or caused to be delivered to Leongatha and Mayan, the
sums
of $1,300,000 and $2,900,000, respectively, by wire transfer to the accounts
specified by each of them in writing to Endeavor:
(i) this
Agreement duly executed by Endeavor;
(ii) at
or
within 5 business days following the closing, a certificate evidencing the
Shares registered in the name of Leongatha; and
(iii) a
certificate from the Endeavor, signed by its authorized officer certifying
and
attaching copies of the Endeavor’s Constituent Instruments and resolutions of
the Board of Directors of Endeavor approving the Agreement and the Transactions
are all true, complete and correct and remain in full force and
effect.
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(b) Leongatha
shall have delivered or caused to be delivered to Endeavor the
following:
(i) this
Agreement duly executed by Leongatha;
(ii) such
other and further documents as Endeavor may reasonably request to convey and
record the transfer of Xxxxxxxx Xxxxxxxx claims to Endeavor.
(iv) certificates
from Leongatha, signed by its Secretary or Assistant Secretary certifying that
the attached copies of the Leongatha Charter, Bylaws, and/or governing documents
and resolutions of the Board of Directors of Leongatha approving this Agreement
and the transactions contemplated hereby, are all true, complete and correct
and
remain in full force and effect.
(c) All
representations and warranties of the other party contained herein shall remain
true and correct as of the Closing Date and all covenants of the other party
shall have been performed if due prior to such date.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of Endeavor.
Endeavor hereby makes the representations and warranties set forth below to
Leongatha:
(a) Organization
and Qualification.
Endeavor is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation
or
organization, with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently conducted.
Endeavor is not in violation or default of any of the provisions of its
certificate or articles of incorporation, bylaws or other organizational or
charter documents. Endeavor is duly qualified to conduct business and is in
good
standing as a foreign corporation or other entity in each jurisdiction in which
the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in
good
standing, as the case may be, could not have or reasonably be expected to result
in (i) a material adverse effect on the legality, validity or enforceability
of
this Agreement, (ii) a material adverse effect on the results of operations,
assets, business, prospects or financial condition of Endeavor, or (iii) a
material adverse effect on Endeavor’s ability to perform in any material respect
on a timely basis its obligations under this Agreement (any of (i), (ii) or
(iii), a “Material
Adverse Effect”)
and no
Proceeding has been instituted in any such jurisdiction revoking, limiting
or
curtailing or seeking to revoke, limit or curtail such power and authority
or
qualification.
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(b) Authorization;
Enforcement.
Endeavor has the requisite corporate power and authority to enter into and
to
consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder. The execution and delivery of this
Agreement by Endeavor and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of Endeavor and no further consent or action is required by Endeavor.
This
Agreement when duly executed by Endeavor and delivered in accordance with the
terms hereof, will constitute the valid and binding obligation of Endeavor
enforceable against Endeavor in accordance with its terms, except (i) as limited
by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may
be
limited by applicable law. Endeavor is not in violation of any of the provisions
of its certificate or articles of incorporation, by-laws or other organizational
or charter documents except where such violation could not, individually or
in
the aggregate, constitute a Material Adverse Effect.
(c)
No
Conflicts.
The
execution, delivery and performance of this Agreement by Endeavor, the issuance
and sale of the Shares, the payment of the monetary portion of the Purchase
Price and the consummation by Endeavor of the other transactions contemplated
thereby do not and will not (i) conflict with or violate any provision of
Endeavor’s certificate or articles of incorporation, bylaws or other
organizational or charter documents, or (ii) conflict with, or constitute a
default (or an event that with notice or lapse of time or both would become
a
default) under, result in the creation of any Lien upon any of the properties
or
assets of Endeavor, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both)
of,
any agreement, credit facility, debt or other instrument (evidencing on
Endeavor’s debt or otherwise) or other understanding to which Endeavor is a
party or by which any property or asset of Endeavor is bound or affected, or
(iii) conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which Endeavor is subject (including any securities
laws and regulations), or by which any property or asset of Endeavor is bound
or
affected, or (iv) conflict with or violate the terms of any agreement by which
Endeavor is bound or to which any property or asset of Endeavor is bound or
affected; except in the case of each of clauses (ii) and (iii), such as could
not have or reasonably be expected to result in a Material Adverse
Effect.
(d) Filings,
Consents and Approvals.
Endeavor is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or
registration with, any court or other governmental authority or other Person
in
connection with the execution, delivery and performance by the Endeavor of
this
Agreement
(e)
Issuance
of the Securities.
The
Shares are duly authorized and, when issued and paid for in accordance with
this
Agreement, will be duly and validly issued, fully paid and nonassessable, free
and clear of all Liens.
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(f) Capitalization.
The
capitalization of Endeavor is as described in its most recent periodic report
filed with the Commission. Other than as described in the SEC Reports Endeavor
has not issued any capital stock since such filing, no Person has any right
of
first refusal, preemptive right, right of participation, or any similar right
to
participate in the transactions contemplated by this Agreement. Other than
securities disclosed in Endeavor’s SEC Reports, if any, there are no outstanding
options, warrants, script rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities, rights or obligations
convertible into or exchangeable for, or giving any Person any right to
subscribe for or acquire, any shares of Common Stock, or contracts, commitments,
understandings or arrangements by which Endeavor is or may become bound to
issue
additional shares of Common Stock, or securities or rights convertible or
exchangeable into shares of Common Stock except for 10,000,000 shares of its
Common Stock in connection with the acquisition of claims similar to the subject
matter hereof. The issue and sale of the Shares will not obligate Endeavor
to
issue shares of Common Stock or other securities to any Person (other than
Leongatha) and will not result in a right of any holder of Endeavor securities
to adjust the exercise, conversion, exchange or reset price under such
securities. All of the outstanding shares of capital stock of Endeavor are
validly issued, fully paid and nonassessable, have been issued in compliance
with all securities laws, and none of such outstanding shares was issued
inapplicable violation of any preemptive rights or similar rights to subscribe
for or purchase securities. No further approval or authorization of any
stockholder, the Board of Directors of Endeavor or others is required for the
issuance and sale of the Shares or the payment of the monetary portion of the
Purchase Price. Except as disclosed in the SEC Reports, there are no
stockholders agreements, voting agreements or other similar agreements with
respect to Endeavor’s capital stock to which Endeavor is a party or, to the
knowledge of Endeavor, between or among any of the Endeavor’s
stockholders.
(g) SEC
Reports; Financial Statements.
Endeavor has filed all reports required to be filed by it under the Securities
Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period as Endeavor
was required by law to file such material) (the foregoing materials, including
the exhibits thereto, being collectively referred to herein as the “SEC
Reports”).
As of
their respective dates, the SEC Reports complied in all material respects with
the requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of Endeavor included
in
the SEC Reports comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements have
been
prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis during the periods involved
(“GAAP”),
except as may be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not contain all
footnotes required by GAAP, and fairly present in all material respects the
financial position of Endeavor and its consolidated subsidiary as of and for
the
dates thereof and the results of operations and cash flows for the periods
then
ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.
6
(h) Material
Changes.
Except
as disclosed in the SEC Reports, (i) there has been no event, occurrence or
development that has had or that could reasonably be expected to result in
a
Material Adverse Effect, (ii) Endeavor has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables and accrued expenses
incurred in the ordinary course of business consistent with past practice and
(B) liabilities not required to be reflected in Endeavor’s financial statements
pursuant to GAAP or required to be disclosed in filings made with the
Commission, (iii) Endeavor has not altered its method of accounting, (iv)
Endeavor has not declared or made any dividend or distribution of cash or other
property to its stockholders or purchased, redeemed or made any agreements
to
purchase or redeem any shares of its capital stock and (v) Endeavor has not
issued any equity securities to any officer, director or Affiliate. Endeavor
does not have pending before the Commission any request for confidential
treatment of information.
(i) Litigation.
There
is no action, suit, inquiry, notice of violation, proceeding or investigation
pending or, to the knowledge of Endeavor, threatened against or affecting
Endeavor, or any of its properties before or by any court, arbitrator,
governmental or administrative agency or regulatory authority (federal, state,
county, local or foreign) (collectively, an “Action”)
which
(i) adversely affects or challenges the legality, validity or enforceability
of
this Agreement or the Shares or (ii) could, if there were an unfavorable
decision, have or reasonably be expected to result in a Material Adverse Effect.
Neither Endeavor, nor any director or officer thereof, is or has been the
subject of any Action involving a claim of violation of or liability under
any
securities laws or a claim of breach of fiduciary duty. There has not been,
and
to the knowledge of Endeavor, there is not pending or contemplated, any
investigation by any governmental authority involving Endeavor or any current
or
former director or officer of Endeavor. The Commission has not issued any stop
order or other order suspending the effectiveness of any registration statement
filed by Endeavor under the Exchange Act or the Securities Act.
(j) Compliance.
Endeavor is not (i) in default under or in violation of (and no event has
occurred that has not been waived that, with notice or lapse of time or both,
would result in a default by Endeavor), nor has Endeavor received notice of
a
claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is
a
party or by which it or any of its properties is bound (whether or not such
default or violation has been waived), (ii) is in violation of any order of
any
court, arbitrator or governmental body, or (iii) is or has been in violation
of
any statute, rule or regulation of any governmental authority, including without
limitation all laws applicable to its business except in each case as could
not
have a Material Adverse Effect.
7
(k) Regulatory
Permits.
Endeavor possesses all certificates, authorizations and permits issued by the
appropriate regulatory authorities necessary to conduct their respective
businesses as described in the SEC Reports, except where the failure to possess
such permits could not, individually or in the aggregate, have or reasonably
be
expected to result in a Material Adverse Effect (“Material
Permits”),
and
Endeavor has not received any notice of proceedings relating to the revocation
or modification of any Material Permit.
(l)
Title
to Assets.
Endeavor has good and marketable title in fee simple to all
real
property owned by it that is material to the business of Endeavor and good
and
marketable title in all personal property owned by it that is material to the
business of Endeavor, in each case free and clear of all Liens, except for
Liens
as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by Endeavor
and Liens for the payment of any taxes, the payment of which is neither
delinquent nor subject to penalties. Any real property and facilities held
under
lease by Endeavor are held by it under valid, subsisting and enforceable leases
of which Endeavor is in compliance.
(m) Transactions
With Affiliates and Employees.
Except
as set forth in the SEC Reports, none of the officers or directors of Endeavor
and, to the knowledge of the Endeavor, none of the employees of Endeavor is
presently a party to any transaction with Endeavor (other than for services
as
employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any officer, director or such employee or, to the knowledge Endeavor,
any entity in which any officer, director, or any such employee has a
substantial interest or is an officer, director, trustee or partner, in each
case in excess of $100,000 other than (i) for payment of salary or consulting
fees for services rendered, (ii) reimbursement for expenses incurred on behalf
of Endeavor and (iii) for other employee benefits, including stock option
agreements under any stock option plan of Endeavor.
(n) Xxxxxxxx-Xxxxx;
Internal Accounting Controls.
Endeavor is in and will b in material compliance with all provisions of the
United States Xxxxxxxx-Xxxxx Act of 2002 which are applicable to it as of the
Closing Date. Endeavor
maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management's general or specific authorization, and
(iv)
the recorded accountability for assets is compared with the existing assets
at
reasonable intervals and appropriate action is taken with respect to any
differences. Endeavor has established disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for Endeavor and designed
such disclosure controls and procedures to ensure that material information
relating to Endeavor, including its subsidiary, is made known to the certifying
officers by others within those entities, particularly during the period in
which Endeavor’s most recently filed periodic report under the Exchange Act, as
the case may be, is being prepared. Endeavor’s certifying officers have
evaluated the effectiveness of Endeavor’s controls and procedures as of the date
prior to the filing date of the most recently filed periodic report under the
Exchange Act (such date, the “Evaluation
Date”).
Endeavor presented in its most recently filed periodic report under the Exchange
Act the conclusions of the certifying officers about the effectiveness of the
disclosure controls and procedures based on their evaluations as of the
Evaluation Date. Since the Evaluation Date, there have been no significant
changes in Endeavor’s internal controls (as such term is defined in Regulation
SB under the Exchange Act) or, to Endeavor’s knowledge, in other factors that
could significantly affect Endeavor’s internal controls.
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(o) No
Fees.
No
brokerage or finder’s fees or commissions are or will be payable by Endeavor to
any broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions contemplated
by
this Agreement. Leongatha has no obligation with respect to any fees or with
respect to any claims made by or on behalf of other Persons for fees of a type
contemplated in this Section that may be due in connection with the transactions
contemplated by this Agreement.
(p) Registration,
Listing and Maintenance Requirements.
Endeavor’s Common Stock is registered pursuant to Section 12(g) of the Exchange
Act, and Endeavor has taken no action designed to, or which to its knowledge
is
likely to have the effect of, terminating the registration of the Common Stock
under the Exchange Act nor has Endeavor received any notification that the
Commission is contemplating terminating such registration. Endeavor has not,
in
the 12 months preceding the date hereof, received notice from any principal
market on which the Common Stock is or has been listed or quoted to the effect
that Endeavor is not in compliance with the listing or maintenance requirements
of such principal market.
(q) Disclosure.
Other
than the terms of this Agreement, Endeavor confirms that, other than
transactions contemplated by this Agreement, neither Endeavor nor any other
Person acting on its behalf has provided Leongatha or its agents or counsel
with
any information that constitutes or might constitute material, non-public
information. Endeavor understands and confirms that Leongatha will rely on
the
foregoing representations and covenants in acquiring Shares of Endeavor’s Common
Stock. All disclosure provided to the Leongatha regarding Endeavor, its business
and the transactions contemplated hereby, furnished by or on behalf of Endeavor
with respect to the representations and warranties made herein are true and
correct with respect to such representations and warranties and do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. Endeavor acknowledges
and agrees that Leongatha makes or has made any representations or warranties
with respect to the transactions contemplated hereby other than those
specifically set forth in Section
3.2
hereof.
(r) Tax
Status.
Endeavor has made or filed all income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject (unless and
only to the extent that Endeavor has set aside on its books provisions
reasonably adequate for the payment of all unpaid and unreported taxes) and
has
paid all taxes and other governmental assessments and charges that are material
in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and has set aside
on
its books provisions reasonably adequate for the payment of all taxes for
periods subsequent to the periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount claimed to be due by
the
taxing authority of any jurisdiction, and the officers of Endeavor know of
no
basis for any such claim. Endeavor has not executed a waiver with respect to
the
statute of limitations relating to the assessment or collection of any tax
of
any jurisdiction. None of Endeavor’s tax returns is presently being audited by
any taxing authority.
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(s) Foreign
Corrupt Practices.
Neither
Endeavor, nor to the knowledge of Endeavor, any agent or other person acting
on
behalf of Endeavor, has (i) directly or indirectly, used any corrupt funds
for
unlawful contributions, gifts, entertainment or other unlawful expenses related
to foreign or domestic political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to any foreign or
domestic political parties or campaigns from corporate funds, (iii) failed
to
disclose fully any contribution made by Endeavor (or made by any person acting
on its behalf of which Endeavor is aware) which is in violation of law, or
(iv)
violated in any material respect any provision of the Foreign Corrupt Practices
Act of 1977, as amended.
3.2 Covenants, Representations
and Warranties of Leongatha
Leongatha
hereby, represents and warrants to and agrees with Endeavor as
follows:
(a) Organization;
Authority.
Leongatha is an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with full right,
corporate or partnership power and authority to enter into and to consummate
the
transactions contemplated by this Agreement and otherwise to carry out its
obligations thereunder. The execution, delivery and performance by Leongatha
of
the transactions contemplated by this Agreement have been duly authorized by
all
necessary corporate or similar action on the part of Leongatha. This Agreement
has been duly executed by Leongatha, and when delivered by Leongatha in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of Leongatha, enforceable against it in accordance with its terms,
except (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or
other
equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
(b) Investment
Intent.
Leongatha understands that the Shares are “restricted securities” and have not
been registered under the Securities Act or any securities law and is acquiring
the Shares as principal for its own account and not with a view to or for
distributing or reselling such Shares or any part thereof, has no present
intention of distributing any of such Shares and has no arrangement or
understanding with any other persons regarding the distribution of such Shares.
Leongatha is acquiring the Shares hereunder in the ordinary course of its
business. Leongatha does not have any agreement or understanding, directly
or
indirectly, with any Person to distribute any of the Shares.
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(c) Leongatha
Status.
At the
time Leongatha was offered the Shares, it was, at the date hereof it is, and
at
closing will be either: (i) an institutional “accredited investor” as defined in
Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act;
(ii)
a “qualified institutional buyer” as defined in Rule 144A(a) under the
Securities Act; or (iii) not a “U.S. Person” as defined in Regulation S.
Leongatha is not required to be registered as a broker-dealer under Section
15
of the Exchange Act.
(d) Experience
of Leongatha.
Leongatha, either alone or together with its representatives, has such
knowledge, sophistication and experience in business and financial matters
so as
to be capable of evaluating the merits and risks of the prospective investment
in the Shares, and has so evaluated the merits and risks of such investment.
Leongatha is able to bear the economic risk of an investment in the Shares
and,
at the present time, is able to afford a complete loss of such
investment.
(e)
General
Solicitation.
Leongatha is not acquiring the Shares as a result of any advertisement, article,
notice or other communication regarding the Shares published in any newspaper,
magazine or similar media or broadcast over television or radio or presented
at
any seminar or any other general solicitation or general
advertisement.
(f) Open
Short Position.
Leongatha, represents and warrants that as of the date first set forth also,
neither it, any of its Affiliates nor any person or entity acting at the
direction of Leongatha, holds an open short position in Endeavor’s Common Stock.
(g) No
Advice.
Leongatha understands that nothing in this Agreement or any other materials
presented to Leongatha in connection with the purchase and sale of the Shares
constitutes legal, tax or investment advice. Leongatha has consulted such legal,
tax and investment advisors as it, in its sole discretion, has deemed necessary
or appropriate in connection with its purchase of the Shares. In making an
investment decision as to whether to purchase the Shares offered hereby,
Leongatha has relied solely upon the SEC Reports and the representation and
warranties of Endeavor contained herein and has conducted its own due diligence.
Leongatha has had the opportunity to ask questions of, and receive answers
from,
representatives of Endeavor concerning Endeavor and its officers and directors,
and all such questions have been asked and answered by Endeavor to the
satisfaction of Leongatha.
(h) Solvency.
Based
on the financial condition of Leongatha as of the Closing Date and after giving
effect to the Closing, (i) Leongatha’s fair saleable value of its assets exceeds
the amount that will be required to be paid on or in respect of Leongatha’s
existing debts and other liabilities (including known contingent liabilities)
as
they mature, (ii) Leongatha’s assets do not constitute unreasonably small
capital to carry on its business for the current fiscal year as now conducted
and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by Leongatha,
and
projected capital requirements and capital availability thereof, and (iii)
the
current cash flow of Leongatha, together with the proceeds Leongatha would
receive, were it to liquidate all of its assets, after taking into account
all
anticipated uses of the cash, would be sufficient to pay all amounts on or
in
respect of its debt when such amounts are required to be paid. Leongatha does
not intend to incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be payable on or in
respect of its debt).
11
(i) Leongatha’s
rights, titles and interests under the Agreement of Sale are owned by it subject
only to the terms of the Agreement of Sale and that all of its rights and
interests under the Agreements held by it are free and clear of any liens,
charges or encumbrances whatsoever.
(j) Leongatha
is unrestricted in its right to sell and assign its interests in the Agreement
of Sale to Endeavor.
(k) The
Claims covered by the Agreement of Sale are, to the best of its knowledge,
information and belief, valid, subsisting and in good standing and free of
liens, charges and encumbrances.
ARTICLE
IV
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Shares may only be disposed of in compliance with applicable securities laws.
In
connection with any transfer of Shares other than pursuant to an effective
registration statement or Rule 144, to Endeavor or to an Affiliate of Leongatha,
Endeavor may require the transferor thereof to provide to Endeavor an opinion
of
counsel selected by the transferor and reasonably acceptable to Endeavor, the
form and substance of which opinion and shall be reasonably satisfactory to
Endeavor, to the effect that such transfer does not require registration of
such
transferred securities under the Securities Act. As a condition of transfer,
any
such transferee shall agree in writing to be bound by the terms of this
Agreement and shall have the rights of Leongatha under this
Agreement.
(b) Leongatha
agrees to the imprinting, so long as is required by this Section
4.1(b),
of the
following, or a substantially similar, legend on any certificate evidencing
the
Shares:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE OR ANY SECURITIES REGULATORY AUTHORITY
OF ANY JURISDICTION IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”),
AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE
DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION
OF COUNSEL TO THE ISSUER TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE
REASONABLY ACCEPTABLE TO THE COMPANY.
12
4.2
Non-Public
Information.
Endeavor covenants and agrees that neither it nor any other Person acting on
its
behalf will provide Leongatha or its agents or counsel with any information
that
Endeavor believes constitutes material non-public information, unless prior
thereto Leongatha shall have executed a written agreement regarding the
confidentiality and use of such information.
ARTICLE
V
TERMINATION
Section
5.1
(a) Termination
of Agreement.
The
Parties may terminate this Agreement as provided below:
(i) All
of
the parties may terminate this Agreement by mutual written consent at any time
prior to the Closing;
(ii) Endeavor
may terminate this Agreement by giving written notice to Leongatha any time
prior to the Closing (A) in the event Leongatha has breached any material
representation, warranty, or covenant contained in this Agreement in any
material respect, Endeavor has notified Leongatha of the breach, and the breach
has continued without cure for a period of twenty days after the notice of
breach, or (B) if the Closing shall not have occurred on or before December
21, 2007
by
reason of the failure of any condition precedent hereof (unless the failure
results primarily from Endeavor itself breaching any representation, warranty,
or covenant contained in this Agreement); and
(iii) Leongatha
may terminate this Agreement by giving written notice to Endeavor at any time
prior to the Closing (A) in the event Leongatha has breached any material
representation, warranty, or covenant contained in this Agreement in any
material respect, Leongatha has notified Endeavor of the breach, and the breach
has continued without cure for a period of twenty days after the notice of
breach or (B) if the Closing shall not have occurred on or before December
21, 2007,
by
reason of the failure of any condition precedent hereof (unless the failure
results primarily Leongatha themselves breaching any representation, warranty,
or covenant contained in this Agreement).
(b) Effect
of Termination.
If any
Party terminates this Agreement pursuant to Section
5.1(a)
above,
all rights and obligations of the Parties hereunder shall terminate without
any
Liability of any Party to any other Party.
13
ARTICLE
VI
MISCELLANEOUS
6.1 Fees
and Expenses.
Each
party shall pay the fees and expenses of its advisers, counsel, accountants
and
other experts, if any, and all other expenses incurred by such party incident
to
the negotiation, preparation, execution, delivery and performance of this
Agreement.
6.2 Entire
Agreement.
This
Agreement contains the entire understanding of the parties with respect to
the
subject matter hereof and supersedes all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge
have been merged into such documents, exhibits and schedules.
6.3 Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of; (a) three business days following the date of mailing,
if
sent by an internationally recognized overnight courier service, or (b) upon
actual receipt by the party to whom such notice is required to be given. The
addresses for such notices and communications are those set forth on the
preamble hereof, or such other address as may be designated in writing
hereafter, in the same manner, by such Person.
6.4 Amendments;
Waivers.
No
provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Endeavor and Leongatha
or, in the case of a waiver, by the party against whom enforcement of any such
waiver is sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right.
6.5 Construction.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
6.6 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. Endeavor may not assign this Agreement
or any rights or obligations hereunder without the prior written consent of
Leongatha. Leongatha may assign any or all of its rights under this Agreement
to
any Person to whom Leongatha assigns or transfers any Shares, provided such
transferee agrees in writing to be bound, with respect to the transferred
Shares, by the provisions hereof that apply to “Leongatha” and as opinion of
counsel satisfactory to the Endeavor is provided, that states that such transfer
complies with the Securities Act.
14
6.7 No
Third-Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
6.8 Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of Nevada, without regard to the principles of conflicts
of law thereof. If either party shall commence an action or proceeding to
enforce any provisions of this Agreement, then the prevailing party in such
action or proceeding shall be reimbursed by the other party for its reasonable
attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
6.9 Survival.
The
representations and warranties contained herein shall survive the Closing and
the delivery, of the Shares.
6.10 Execution.
This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of
the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile signature page were an original
thereof.
6.11 Severability.
If any
provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is
a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
6.12 Replacement
of Shares.
If any
certificate or instrument evidencing any Shares is mutilated, lost, stolen
or
destroyed, Endeavor shall issue or cause to be issued in exchange and
substitution for and upon cancellation thereof, or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of evidence
reasonably satisfactory to Endeavor of such loss, theft or destruction and
customary and reasonable indemnity, if requested. The applicants for a new
certificate or instrument under such circumstances shall also pay any reasonable
third-party costs associated with the issuance of such replacement
Shares.
6.13 Monetary
References.
All
dollar references herein are to U.S. Dollars.
15
IN
WITNESS WHEREOF the Parties have executed this Agreement under the hands of
their duly authorized Officers.
|
LEONGATHA
MANAGEMENT INC.
|
||||
|
By:
|
/s/ Xxxx X.Xxxxx & /s/ Xxxxxx Xxxx |
By:
|
/s/
Xxxxxx Xxxxxxxx
|
|
| Xxxx X.Xxxxx & Xxxxxx Xxxx |
Xxxxxx
Xxxxxxxx, President
|
|||
| PROVINCE OF BRITISH COLUMBIA | ) | |||
| )ss. | ||||
| COUNTY OF VANCOUVER | ) | |||
On
this
16th
day of
November in the year 2007, before me, a Notary Public in and for said Province
of British Columbia, personally appeared Xxxxxx Xxxxxxxx who is the President
of
Endeavor Uranium, Inc., a Nevada corporation, personally known (or proved)
to me
to be the person who executed the above instrument, and acknowledged to me
that
he executed the same for purposes stated therein.
|
/s/
Xxxx X. Xxxxxxx
|
||
|
Xxxx
X. Xxxxxxx, Notary Public
|
Notary
Public in and for the Province
|
|
|
0000-0000
Xxxx Xxxxxxxx Xxxxxx
|
of
the British Columbia. My
|
|
|
Xxxxxxxxx,
X.X., Xxxxxx X0X 0X0
|
appointment
does not expire and is
|
|
|
of
unlimited duration.
|
|
STATE
OF
|
|
) | ||
|
|
)ss. | |||
|
COUNTY
OF
|
|
) |
On
this
______ day of November in the year 2007, before me, a Notary Public in
and for
said State, personally appeared _____________________ who is the
______________________ of LEONGATHA MANAGEMENT INC., a limited liability
company, personally known (or proved) to me to be the person who executed
the
above instrument, and acknowledged to me that he executed the same for
purposes
state therein.
|
Notary
Public
|
16
