Exhibit 99.1
This Agreement is made on the 2nd of November 2007.
Parties
1 Iron Duyfken Pty Limited ACN 000 000 000 of Xxxxx 0, 00 Xxxxxx
Xxxxxx, Xxxxxx XXX 000 (ID)
2 Legend International Holdings Inc of Xxxxx 0, 000 Xx Xxxxx Xxxx,
Xxxxxxxxx Xxxxxxxx 0000 (Legend)
Background
A ID has made certain EPM applications in the State of Queensland.
B ID has agreed to hold in trust for Legend certain EPM applications subject
to and on the terms and conditions contained in this Document.
Operative Provisions
1. Definitions and Interpretation
--------------------------------------------------------------------------------
1.1 Definitions
The following definitions apply:
Business Day means:
(a) for receiving a notice under clause 8, a day that is not a Saturday,
Sunday, public holiday or bank holiday in the place where the notice
is received; and
(b) for all other purposes, a day that is not a Saturday, Sunday, public
holiday or bank holiday in New South Wales.
Business Hours means from 9:00am to 5:00pm on a Business Day.
Completion means completion of the obligations set out in clause 5.3.
Completion Date means the date of this Document.
Consideration Shares means 500,000 of unencumbered fully paid listed
shares in Legend being fully transferable on compliance with registration
requirements of the United States Securities and Exchange Commission and
with full voting rights.
Corporations Act means the Corporations Xxx 0000 (Cth).
Document means this document, and includes all its schedules,
annexures and exhibits, if any.
EPM means Exploration Permit for Minerals.
EPM Applications means the applications made by ID for the Lady Xxxxx EPM,
Lady Xxxx EPM and Thorntonia EPM.
Lady Xxxxx EPM means EPM 16940.
Lady Xxxx EPM means EPM 16683.
Thorntonia EPM means EPM 16941.
Party means a party to this Document.
Purchase Price means the sum of AU$500,000 and the issue of the
Consideration Shares.
Warranties means each of the representations and warranties set out in
clause 6.1.
1.2 Interpretation
In this Document, except where the context otherwise requires:
(a) the singular includes the plural and vice versa, and a gender
includes other genders;
(b) another grammatical form of a defined word or expression has a
corresponding meaning;
(c) a reference to a clause, paragraph, schedule or annexure is to a
clause or paragraph of, or schedule or annexure to, this Document,
and a reference to this Document includes any schedule or annexure;
(d) a reference to a document or instrument includes the document or
instrument as novated, altered, supplemented or replaced from time
to time;
(e) a reference to AU$, A$, $A, dollar or $ is to Australian currency;
(f) a reference to time is to Sydney, Australia time;
(g) a reference to a party is to a party to this Document, and a
reference to a party to a document includes the party's executors,
administrators, successors and permitted assigns and substitutes;
(h) a reference to a person includes a natural person, partnership, body
corporate, association, governmental or local authority or agency or
other entity;
(i) a reference to a statute, ordinance, code or other law includes
regulations and other instruments under it and consolidations,
amendments, re enactments or replacements of any of them;
(j) a word or expression defined in the Corporations Act has the meaning
given to it in the Corporations Act;
(k) the meaning of general words is not limited by specific examples
introduced by including, for example or similar expressions;
(l) a rule of construction does not apply to the disadvantage of a party
because the party was responsible for the preparation of this
Document or any part of it; and
(m) if a day on or by which an obligation must be performed or an event
must occur is not a Business Day, the obligation must be performed
or the event must occur on or by the next Business Day.
1.3 Headings
Headings are for ease of reference only and do not affect interpretation.
2. EPM Applications
--------------------------------------------------------------------------------
2.1 Lady Xxxxx EPM Application
(a) The parties have each made separate applications with the State of
Queensland to hold the Lady Xxxxx EPM to explore for minerals.
(b) The parties agree that ID is to continue with its Lady Xxxxx EPM
Application.
(c) ID agrees to hold in trust for Legend the Lady Xxxxx EPM Application
and in the event that ID is successful in its Lady Xxxxx EPM
Application, the Lady Xxxxx EPM.
2.2 Lady Xxxx EPM Application
(a) ID has made an application with the State of Queensland to hold the
Lady Xxxx EPM.
(b) ID agrees to hold in trust for Legend the Lady Xxxx EPM Application
and in the event that the Lady Xxxx EPM Application is granted, the
Lady Xxxx EPM.
2.3 Thorntonia EPM Application
(a) ID has made an application with the State of Queensland to hold the
Thorntonia EPM.
(b) ID agrees to hold in trust for Legend the Thorntonia EPM Application
and in the event that the Thorntonia EPM Application is granted, the
Thorntonia EPM.
2.4 Processing of EPM Applications
ID agrees to use its best and reasonable endeavours to obtain the grant of
each EPM which is the subject of the EPM Application as soon as possible.
3. Consideration
------------------------------------------------------------------------
3.1 Payments on Completion
On Completion:
(a) Legend must pay the Purchase Price to ID; and
(b) Legend must issue the Consideration Shares as follows:
(i) 250,000 Consideration Shares to Pilmore Pty Limited; and
(ii) 250,000 Consideration Shares to Len van der Sluijs.
3.2 Cleared funds
All payments under this clause 3 must be paid in immediately cleared funds
to such person or account as ID shall nominate.
4. Completion
--------------------------------------------------------------------------------
4.1 Time and Place
Completion will take place on the Completion Date at the offices of Swaab
Attorneys or another place agreed by the parties.
4.2 Simultaneous Actions on Completion
All actions at completion will be taken to take place simultaneously and a
delivery or payment will not be regarded as having been made until all
deliveries and payments to be made on completion have been made.
4.3 Obligations of Legend
At completion, Legend must:
(a) pay the amounts referred to in clause 4.1(a); and
(b) issue to ID of the Consideration Shares.
4.4 Obligations of ID
At completion, ID must deliver to Legend:
(a) all correspondence and information (in whatever form) it has in
connection with the EPM Applications.
(b) a power of attorney in a form acceptable to Legend authorising
Legend and any director or secretary of Legend to perform all acts
and do all things in connection with each EPM Application and EPM.
5. Post completion
--------------------------------------------------------------------------------
5.1 Exploration and Mining Rights
The parties agree that ID is to retain the exploration and mining rights
for all uranium deposits relating to the EPM Applications. Legend will
provide to ID and its agents and assigns the right of reasonable access
for ID or its agents to undertake such exploration and mining. ID will
indemnify Legend and its directors, employees and agents without setoff or
deduction for any claim, action, damage, loss, liability, penalty, cost,
charge, expense or outgoing suffered or incurred by Legend or assigns
arising directly or indirectly from any activity undertaken by ID or its
agents or assigns on the any EPM or EPM Application including any
rehabilitation. Each party will co-operate and use its reasonable
endeavours not to interfere with the permitted mining and exploration
activities of the other.
ID will give to Legend 60 days notice of any proposal to undertake uranium
exploration and mining on any EPM or EPM Application (Notice of Proposal)
including details of the proposed exploration and mining operations.
ID will not undertake uranium exploration and mining on any EPM
Application or EPM where the uranium deposits are on a phosphate or other
mineral deposit;
(a) that is being mined or prepared for mining by Legend; or
(b) that has an identified reserve (other than for uranium) and in
respect of which Legend can demonstrate that there is an
existing proposal to mine an area that includes the area that
is contained in the Notice of Proposal. Legend must commence
mining within 18 months of the date of receipt of the Notice
of Proposal, failing which ID may undertake uranium
exploration and mining on that EPM Application or EPM.
For the avoidance of doubt, all minerals other than uranium excavated from
the EPMs are the property of Legend.
5.2 Keep informed
Legend will provide to ID regular updates on the progress of the
registration of the Consideration Shares.
5.3 EPMs in trust
In respect of clauses 2.1, 2.2 and 2.3:
(a) ID will act in accordance with Legend's reasonable instructions in
relation to the relevant EPM Application and EPM once granted which
is being held in trust;
(b) Legend will indemnify ID in relation to:
(i) any reasonable costs and expenses incurred by ID in complying
with Legend's instructions; and
(ii) unless otherwise provided for in this Document, any tax
payable by ID which arises in relation to the relevant EPMs
other than tax assessed on income or capital gains on the
Purchase Price.
(c) on grant of the EPM, ID will take all steps required by Legend to
keep the EPMs in good standing and transfer the EPMs to Legend or
its nominee free from mortgages, charges, liens, encumbrances or
other third party interests over or affecting the EPMs and to obtain
all consents and approvals required to transfer the EPM to Legend or
its nominee.
(d) ID will promptly on receipt or creation forward to Legend all
correspondence and information (in whatever form) it has from time
to time in connection with the EPM Applications.
(e) ID will perform all acts and do all things reasonably required by
Legend in relation to any EPM Application (whether prior to or after
their grant (as applicable)) and EPM including the creation and
registration of any encumbrance or lodgement of any caveat.
5.4 Consideration Shares
If the Consideration Shares are not freely tradable within four months of
Completion, ID may, by written notice to Legend within one month of the
end of that four month period, request that Legend pays to ID a total sum
of $500,000, and on receipt of that notice Legend shall pay to ID the sum
of $500,000 on and subject to the following:
(a) delivery to Legend or its nominee of all documents required by
Legend or its nominee to transfer the legal and beneficial ownership
of the Consideration Shares to Legend or its nominee;
(b) Legend being satisfied that the Consideration Shares are free from
all encumbrances and interests of any other person;
and without limitation the documents will include the following:
(c) an executed transfer in registrable form in favour of a transferee
as nominated by Legend in respect of all of the Consideration Shares
and/or a buy-back agreement;
(d) the Common Stock certificates for the Consideration Shares.
ID will ensure that the holders of those Consideration Shares will at any
time on request perform all acts and do all things reasonably required by
Legend at any time to effect and perfect the transfer of the Consideration
Shares to Legend and/or its nominee.
6. Warranties and Representations
--------------------------------------------------------------------------------
6.1 ID Warranties
ID represents and warrants to Legend that the following statements are
true and accurate at the Completion Date:
(a) there are no mortgages, charges, liens, encumbrances or other third
party interests over or affecting the EPM Applications;
(b) ID has accurately disclosed all material information in relation to
the EPM Applications and there is no dispute or threatened claim in
connection with the EPM Applications other than as disclosed in
writing to Legend prior to Completion or as recorded on the public
record at the Queensland Department of Minerals and Energy prior to
Completion; and
(c) ID has the power and lawful authority to enter into and perform this
Document and this Document constitutes a legal, valid and binding
obligation on ID, enforceable in accordance with its terms.
6.2 Legend Warranties
Legend represents and warrants to ID that the following statements are
true and accurate at the Completion Date:
(a) there are no mortgages, charges, liens, restrictions against
transfer, encumbrances or other third party interests over or
affecting the Consideration Shares;
(b) Legend will deliver to ID a duly executed and completed share
certificate for the Consideration Shares as soon as practicable
after Completion;
(c) Legend will use all reasonable endeavours to register, and expedite
the registration process, for the Consideration Shares; and
(d) Legend has the power and lawful authority to enter into and perform
this Document including to issue the Consideration Shares and apply
for the registration of those shares and this Document constitutes a
legal, valid and binding obligation on Legend, enforceable in
accordance with its terms.
6.3 Application of Warranties
Each of the Warranties remains in full force and effect on and after the
Completion Date despite completion taking place.
6.4 Indemnity
Each Party indemnifies the other against any claim, action, damage, loss,
liability, cost, charge, expense or outgoing which the other Party pays,
suffers, incurs or is liable (including legal costs on a full indemnity
basis) in respect of any breach by Party of this Document.
7. GST
--------------------------------------------------------------------------------
7.1 Interpretation
In this clause 7, a word or expression defined in the A New Tax System
(Goods and Services Tax) Xxx 0000 (Cth) has the meaning given to it in
that Act.
7.2 GST Gross Up
If a party makes a supply under or in connection with this Document in
respect of which GST is payable, the consideration for the supply but for
the application of this clause 7.2 (GST exclusive consideration) is
increased by an amount equal to the GST exclusive consideration multiplied
by the rate of GST prevailing at the time the supply is made.
7.3 Reimbursements
If a party must reimburse or indemnify another party for a loss, cost or
expense, the amount to be reimbursed or indemnified is first reduced by
any input tax credit the other party is entitled to for the loss, cost or
expense, and then increased in accordance with clause 7.2.
7.4 Tax Invoice
A party need not make a payment for a taxable supply made under or in
connection with this Document until it receives a tax invoice for the
supply to which the payment relates.
8. Notices and Other Communications
--------------------------------------------------------------------------------
8.1 Service of Notices
A notice, demand, consent, approval or communication under this Document
(Notice) must be:
(a) in writing, in English and signed by a person duly authorised by the
sender; and
(b) hand delivered or sent by prepaid post or facsimile to the
recipient's address for Notices specified on page 1, as varied by
any Notice given by the recipient to the sender.
8.2 Effective on Receipt
A Notice given in accordance with clause 8 takes effect when taken to be
received (or at a later time specified in it), and is taken to be
received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, two Business Days after the date of posting
(or seven Business Days after the date of posting if posted to or
from a place outside Australia);
(c) if sent by facsimile, when the sender's facsimile system generates a
message confirming successful transmission of the entire Notice
unless, within eight Business Hours after the transmission, the
recipient informs the sender that it has not received the entire
Notice,
but if the delivery, receipt or transmission is not on a Business Day or
is after 5.00pm on a Business Day, the Notice is taken to be received at
9.00am on the next Business Day.
9. Miscellaneous
--------------------------------------------------------------------------------
9.1 Alterations
This Document may be altered only in writing signed by each party.
9.2 Approvals and Consents
Except where this Document expressly states otherwise, a party may, in its
discretion, give conditionally or unconditionally or withhold any approval
or consent under this Document.
9.3 Assignment
A party may only assign this Document or a right under this Document with
the prior written consent of each other party (such consent not to be
unreasonably withheld).
9.4 Costs
Each party must pay its own costs of negotiating, preparing and executing
this Document.
9.5 Stamp Duty
Any stamp duty, duties or other taxes of a similar nature (including
fines, penalties and interest) in connection with this Document or any
transaction contemplated by this Document, must be paid by ID.
9.6 Survival
Any indemnity or any obligation of confidence under this Document is
independent and survives termination of this Document. Any other term by
its nature intended to survive termination of this Document survives
termination of this Document.
9.7 Counterparts
This Document may be executed in counterparts. All executed counterparts
constitute one document.
9.8 No Merger
The rights and obligations of the parties under this Document do not merge
on completion of any transaction contemplated by this Document.
9.9 Entire Agreement
This Document constitutes the entire agreement between the parties in
connection with its subject matter and supersedes all previous agreements
or understandings between the parties in connection with its subject
matter.
9.10 Further Action
Each party must do, at its own expense, everything reasonably necessary
(including executing documents) to give full effect to this Document and
any transactions contemplated by it.
9.11 Severability
A term or part of a term of this Document that is illegal or unenforceable
may be severed from this Document and the remaining terms or parts of the
term of this Document continue in force.
9.12 Waiver
A party does not waive a right, power or remedy if it fails to exercise or
delays in exercising the right, power or remedy. A single or partial
exercise of a right, power or remedy does not prevent another or further
exercise of that or another right, power or remedy. A waiver of a right,
power or remedy must be in writing and signed by the party giving the
waiver.
9.13 Relationship
Except where this Document expressly states otherwise, it does not create
a relationship of employment, trust, agency or partnership between the
parties.
9.14 Confidentiality
A party may only use confidential information of another party for the
purposes of this Document, and must keep the existence and the terms of
this Document and any confidential information of another party
confidential except where:
(a) the information is public knowledge (but not because of a breach of
this Document) or the party has independently created the
information;
(b) disclosure is required by law or a regulatory body (including a
relevant stock exchange); or
(c) disclosure is made to a person who must know for the purposes of
this Document on the basis that the person keeps the information
confidential.
9.15 Announcements
A public announcement in connection with this Document or any transaction
contemplated by it must be agreed by the parties before it is made which
agreement will not be unreasonably withheld, except if required by law or
a regulatory body (including a relevant stock exchange), in which case the
party required to make an announcement must, to the extent practicable,
first consult with and take into account the reasonable requirements of
each other party.
9.16 Governing Law and Jurisdiction
This Document is governed by the law of New South Wales and each party
irrevocably and unconditionally submits to the non exclusive jurisdiction
of the courts of New South Wales.
Executed as an agreement in New South Wales
EXECUTED by Iron Duyfken Pty Limited )
(ACN 000 000 000) by or in the presence )
of its duly authorised officers in )
accordance with section 127 of the )
Corporations Xxx 0000: )
)
)
)
s/s Xxxxxxxx Xxxxx )
------------------------------------------)
Signature of Sole director/Sole secretary )
)
)
Xxxxxxxx Xxxxx
------------------------------------------
Name of Sole Director/Sole Secretary -
please print
EXECUTED by Legend International
Holdings Inc by or in the presence of
its duly authorised officers: )
)
)
)
s/s Xxxxx Xxx ) /s/ Xxxxxx Xxxxxxx
---------------------------------------- ) ----------------------------------
Signature of director/secretary ) Signature of director
)
Xxxxx Xxx ) /s/ Xxxxxx Xxxxxxx
---------------------------------------- ) ----------------------------------
Name of director/secretary - please print )
