CLOSING AND ESCROW AGREEMENT
Exhibit
99.1
This
Closing and Escrow Agreement (this “Agreement”)
is
made as of the 14th day of December, 2007 by and among Pacific Copper Corp.,
a
Delaware corporation having an office at 0000 X. Xxxxxxx Xx. Xxxxx 000 Xxxxxx
Xxxxxxx XXX 00000 (“Pacific
Copper”),
Pacific Copper Perú S.R.L. having an office at Xxxxxxxxxxxx Xxxx X000, X-0
Xxxxx, Xxxxxxxx, Xxxx (“Pacific
Peru”),
Xxxxx
Xxxxxx, having an address at 000 Xxxx Xxxxxx Xx., Xxxxx 0000, Xxxxxxxxx, XX,
X0X
0X0 solely as escrow agent (the “Escrow
Agent”)
and
the undersigned parties (referred to herein as the “Beneficiaries”).
WHEREAS,
Pacific
Copper has entered into an Amended and Restated Share Exchange Agreement as
of
November 13, 2007 among Pacific Copper, Pacific Peru and the Beneficiaries
(the
“Share Exchange Agreement”);
WHEREAS,
in
connection with the Share Exchange Agreement, Pacific Copper is issuing in
escrow, subject to the terms and conditions of this Agreement, the following
shares of its common stock to the Beneficiaries listed below, such shares being
collectively referred to herein as the “Exchange Shares.”
|
Name:
|
Exchange
Shares
|
|
Xxxxx
Xxxxxxx
|
2,425,000
|
|
Xxxxxx
Xxxxxx
|
2,425,000
|
WHEREAS,
the
Exchange Shares are being issued to the parties listed above inside and outside
the United States pursuant to exemptions from registration under the Securities
Act of 1933, as amended (the “Securities
Act”);
WHEREAS,
as of
the closing of the Share Exchange Agreement, the parties to the Share Exchange
Agreement agree that certain items that were to be satisfied as a condition
of
closing have not been satisfied and that a closing will take place subject
to
the terms and conditions of this Agreement with the items listed in Section
2 of
this Agreement (the “Post-Closing
Items”)
to be
completed subsequent to the date hereof;
WHEREAS,
the
parties to the Share Exchange Agreement have agreed that the Exchange Shares
will be held in escrow pending the completion of the Post-Closing Items;
and
WHEREAS,
the
Escrow Agent has entered into this Agreement solely as an accommodation to
the
parties, and the Escrow Agent has agreed to hold the Exchange Shares subject
to
the terms, covenants and conditions hereof;
NOW
THEREFORE,
the
parties agree as follows.
| 1. |
Establishment
of Escrow.
Pacific Copper shall issue the Exchange Shares to the Beneficiaries
and
deliver the share certificate representing the Exchange Shares to the
Escrow Agent and the Escrow Agent shall accept such Exchange Shares
and
hold the same in escrow in accordance with this Agreement.
|
| 2. |
Second
Interest Xxxxxx.Xx
meet the requirements of Peruvian law requiring Limited Liability
Partnerships to have a minimum of two partners, Xxxxxx Xxxxxxx agreed
to
Purchase a 1% interest in Pacific Peru in trust for Pacific
Copper.
|
| 3. |
Post
Closing Items.
Prior to the release of the Exchange Shares from the escrow and delivery
of the Exchange Shares to the Beneficiaries, the Beneficiaries shall
have
satisfied the Post Closing Items, as contemplated
below:
|
| (a) |
Pacific
Peru shall have obtained and have registered in its name rights to
the
mineral claims described in Schedule 4.14 of the Share Exchange Agreement
and attached hereto as “Schedule
A”
(the “Mineral Claims”), free of all liens and
encumbrances.
|
| (b) |
The
Beneficiaries shall provide legal evidence demonstrating that the mining
properties have been transferred to Pacific Perú, that they are in good
standing and that the Good Standing Fees (Derechos de Vigencia) are
fully
paid and up to date, including penalties
thereon.
|
| (c) |
Demonstration
that the Pacific Peru has the necessary permits to access the locations
where the mining properties are and that the necessary environmental
permits have been obtained.
|
| (d) |
Provision
of a satisfactory legal opinion of counsel to Beneficiaries, (i) as
to the
ownership of the mining concessions listed in Schedule
A
by
Pacific Perú, (ii) that the claims are free of encumbrances, mortgages,
attachments, liens, or disputes of any nature, including judicial and
(iii) that the claims are in good standing, and that all the good standing
fees and penalties thereon are fully paid and that there are no amounts
outstanding.
|
| (e) |
Provision
of a satisfactory legal opinion of counsel to Beneficiaries, indicating
that the Company has all the necessary permits and authorizations to
conduct mining activities, including environmental permits and an
Environmental Impact Assessment, if
necessary.
|
| (f) |
Provision
of financial records, including receipts for incorporation costs and
all
other expenditures incurred since the date of inception of Pacific
Peru on
its behalf.
|
| (g) |
The
certificates evidencing the Peru SRL Interests to be acquire by Pacific
Copper Corp. have been duly transferred and registered in Peru SRL’s
records, such certificates legally representing the equity interests
of
Peru SRL.
|
| (h) |
A
legal opinion of counsel to Peru SRL, acceptable to Pacific Copper
Corp,
covering:
|
(i)
the
existence and good standing of Peru SRL as a limited liability partnership
in Peru,
(ii)
the
authorization of the transactions contemplated herein by
Peru
SRL,
(iii)
the
valid issuance and certification of the Peru SRL Interests
that are to be exchanged hereunder,
(iv)
the
binding nature of the Share Exchange Agreement upon
execution by Peru SRL, and the Interest Holders.
(v)
no
required consents of governmental agencies or private
third parties for Peru SRL to consummate the transactions
contemplated in the Share Exchange Agreement,
(vi)
no
violation of Peruvian law as a result of the Exchange contemplated
by the Share Exchange Agreement.
| (i) |
The
powers of attorney granted by Xxx. Xxxxxxx, in both languages, English
and
Spanish, with her signature duly legalized by the nearest Peruvian
Consulate, granting power to third persons, for the ratification and
confirmation of consent to the transfer of the interest ownership in
Pacific Copper Peru S.R.L, executed Mr. Xxxxx Xxxxx Xxxxxxx on
December 14, 2007.
|
Pacific
Copper may waive any one or more of the foregoing Post-Closing Items, in its
sole and absolute discretion. Nothing herein constitutes a waiver of any
Post-Closing Item. Any waiver of a Post-Closing Item shall be in writing and
executed by an officer of Pacific Copper.
The
Beneficiaries agree to use best efforts to diligently pursue completion of
all
Post-Closing Items that are within their control or with respect to which they
can influence the completion. The parties agree that time is of the essence
and
that failure of the Beneficiaries to diligently pursue completion of the
Post-Closing Items shall be considered a breach of this Agreement and grounds
for return of some or all of the Escrow Shares to Pacific Copper.
| 4. |
Delivery
of Escrow.
Upon the occurrence of the following events and satisfaction of the
following conditions, the Escrow Agent shall deliver the Exchange Shares
as contemplated below.
|
| (a) |
The
Escrow Agent shall release the Exchange Shares and deliver them to
the
Beneficiaries after receipt of a direction from Pacific Copper, signed
by
an officer, certifying that the Post-Closing Items have been completed
or
waived as provided in Section 2 hereof. The Escrow Agent shall be entitled
to rely on such written instructions delivered to the Escrow Agent
by
facsimile.
|
| (b) |
In
the event the Exchange Shares are not released by the Escrow Agent
in
accordance with the terms of this Agreement by December 31, 2008, the
Escrow Agent shall continue to hold the Exchange Shares and the Exchange
Shares shall only be released upon joint written instruction from Pacific
Copper and both of the Beneficiaries. It is contemplated that if the
Exchange Shares are still held in escrow on December 31, 2008, the
parties
hereto (other than the Escrow Agent) shall negotiate an acceptable
resolution and instruct the Escrow Agent
accordingly.
|
| 5. |
Liability
of Escrow Agent; Indemnification of Escrow Agent.
The acceptance by the Escrow Agent of its appointment under this Agreement
is based upon and is subject to the following terms and conditions
which
shall govern the rights, duties, liabilities and immunities of the
Escrow
Agent:
|
| (a) |
the
Escrow Agent shall be entitled to rely on the validity of any written
certificate, opinion, direction or instruction referred to in this
Agreement and to assume and rely upon the authority of the person making
or signing such document, the genuiness of the signatures thereto and
on
the truth of facts as set out therein and the Escrow Agent shall not
be
bound by any notice or direction to the contrary by any person other
than
the person entitled to give such notice hereunder. The Escrow Agent
shall
not be required to inquire into or interpret any terms or agreement
existing between the parties in connection with this transaction and
shall
not be required to exercise any discretion hereunder. Specifically,
the
Escrow Agent shall have no duty to ascertain whether the Post Closing
Items have been completed. The Escrow Agent shall be entitled to apply
to
a court having jurisdiction for any instruction or to affirm any
instruction upon which it has been requested to act. The Escrow Agent
may
retain such independent counsel or other advisors as it reasonably
may
require for such purpose or otherwise for the purpose of discharging
or
determining its duties, obligations or rights hereunder and may act
and
rely on the advise or opinion so
obtained;
|
| (b) |
Pacific
Copper, Pacific Peru and the Undersigned Parties hereby release the
Escrow
Agent from any and all actions, causes of action, claims, demands,
damages, losses, costs, liabilities, penalties and expenses whatsoever,
whether arising, directly or indirectly, by way of statute, contract,
tort
or otherwise in connection herewith for anything whatsoever other than
as
a result of the Escrow Agent’s fraud, gross negligence or willful
misconduct. Pacific Copper agrees to indemnify, hold harmless and defend
the Escrow Agent from and against any and all actions, causes of action,
claims, demands, damages (which damages include consequential damages),
losses, costs, liabilities, penalties and expenses, of any nature or
kind
including all legal or adviser fees and other disbursements, which
may be
made or brought against it or which it may suffer or incur as a result
of
or in respect of or arising out of its appointment as Escrow Agent
hereunder, except such as shall result solely and directly from its
own
fraud, gross negligence or wilful misconduct. This obligation of Pacific
Copper to indemnify the Escrow Agent shall survive the termination
or
discharge of this Agreement, the disbursement or payment of the Exchange
Fund and the resignation of the Escrow
Agent;
|
| (c) |
the
Escrow Agent shall have no duties except those which are expressly
set
forth herein. Each of the other parties to this Agreement expressly
acknowledges and agrees that the duties of the Escrow Agent hereunder
are
purely administrative in nature and that the Escrow Agent shall not
be
liable for any error of judgment, or for any act done or step taken
or
omitted by it in good faith, or for any mistake of fact or law, or
for
anything which it may do or refrain from doing in connection therewith,
except for its own fraud, gross negligence or willful
misconduct;
|
| (d) |
the
Escrow Agent shall be under no obligation to institute or defend any
action, suit or legal proceeding in connection herewith. The Escrow
Agent
shall not be liable for any actions taken or omitted to be taken by
it, or
any action suffered by it to be taken or omitted, in good faith and
in the
exercise of its rights and powers hereunder, and may rely conclusively
and
shall be protected in acting in good faith upon any notice, instruction,
consent, certificate, order, affidavit, letter or other paper or document
believed by it to be genuine and to have been signed or sent by the
proper
person or persons on behalf of Pacific Copper. The Escrow Agent shall
not
be required to give any bond or surety in respect of the execution
of the
duties and powers intended to be conferred it hereunder;
|
| (e) |
in
the event of any disagreement between the parties hereto resulting
in
adverse claims or demands with respect to the Exchange Shares or any
portion thereof, the Escrow Agent may (but shall not be obliged to)
deposit the Escrow Funds or any portion thereof then in his possession
with a court of competent jurisdiction in the State of Texas, USA,
which
deposit may include a request for an interpleader order. Upon the Escrow
Agent making such deposit, the Escrow Agent shall be discharged and
released of his duties and obligations hereunder. Pacific Copper, Pacific
Peru and the Beneficiaries acknowledge and agree that the Escrow Agent,
in
his sole discretion, shall be entitled to represent itself in connection
with any legal actions taken in connection with this Agreement;
and
|
| 6. |
Miscellaneous
Provisions
|
| (a) |
Binding
Nature; Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto. Neither this Agreement nor any of the rights, interests
or
obligations hereunder shall be assigned by any of the parties hereto
without prior written consent of the other parties. Nothing contained
herein, express or implied, is intended to confer on any person or
entity
other than the parties hereto, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
|
| (b) |
Entire
Agreement.
This Agreement embodies the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There
are no restrictions, promises, warranties, covenants or undertakings,
other than those expressly set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties
with respect to its subject matter.
|
| (c) |
Severability.
Each of the provisions of this Agreement is intended to be separate
and
severable. If any provision hereof is determined by a court of competent
jurisdiction or a securities regulatory authority having jurisdiction
to
be illegal or invalid, such illegal or invalid provision shall be severed
and removed therefrom and such illegality or invalidity shall not affect
the validity of the remainder of this
Agreement.
|
| (d) |
Governing
Law.
This Agreement and the application or interpretation hereof shall be
governed exclusively by its terms and by the applicable laws of Texas
as a
contract made, entered into and to be wholly performed in Texas by
parties
domiciled and resident in Texas and each party irrevocably attorns
to the
jurisdiction of the courts of Texas.
|
| (e) |
Further
Assurances.
The parties hereto agree to execute and deliver such further documents
and
do such things as may be necessary in order to give full effect to
terms,
purpose and intent to this Agreement.
|
| (f) |
Waiver.
No waiver by any party of any default, breach or non-compliance by
the
other parties under this Agreement shall operate as a waiver of such
party’s rights under this Agreement in respect of any continuing or
subsequent default, breach or non-observance (whether of the same or
any
other nature). To be effective, any such waiver must be in writing
and
signed by the party to be bound thereby. No waiver shall be inferred
from
or implied by any failure to act or delay in acting by any party in
respect of any such default, breach or non-observance or by anything
done
or omitted to be done by either party with respect
thereto.
|
| (g) |
Amendments.
No amendments of this Agreement shall be effective unless made in writing
and signed by the parties hereto.
|
| (h) |
No
Conflict of Interest.
Each of the parties hereby acknowledges that the Escrow Agent has acted
and will continue to act as an advisor to Pacific Copper and its
affiliates with respect to various matters and agrees that the Escrow
Agent shall not, by virtue of acting as Escrow Agent hereunder, be
disqualified from continuing to advise or work for Pacific Copper in
any
manner or in any matter whatsoever.
|
| (i) |
Assignment.
This Agreement shall enure to the benefit of and be binding on the
parties
hereto and their respective successors and permitted assigns. None
of the
parties hereto may assign or transfer all or any part of its respective
rights or obligations under this Agreement without the prior written
consent of the parties hereto.
|
| (j) |
Electronic
and Facsimile Signatures.
Documents signed and transmitted electronically and by facsimile shall
be
acceptable and constitute good delivery hereunder, except where original
documents are otherwise required to effect good
delivery.
|
| (k) |
Time.
Time shall be of the essence hereof.
|
| (l) |
Counterparts.
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall
constitute one and the same instrument.
|
| (m) |
Headings.
The headings contained in this Agreement are inserted for convenience
only
and shall not constitute a part hereof.
|
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed as of the day
and
year first above written.
|
By:
/s/ Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx
President
and CEO
PACIFIC
COPPER PERU S.R.L.
By:
/s/ Xxxxx
X.
Xxxxxxx
Xxxxx
X. Xxxxxxx
ESCROW
AGENT
By:
/s/ Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
|
|
BENEFICIARIES
/s/
Xxxxx
X.
Xxxxxxx
Xxxxx Xxxxxxx
/s/
Xxxxxx
Xxxxxx
Xxxxxx Xxxxxx
SECOND
INTEREST HOLDER
/s/
Xxxxxx
Xxxxxxx
Xxxxxx Xxxxxxx
|
|
SCHEDULE
A
|
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|
|
|
|
|
|
|
|
|
|
|
TYPE
OF MINE
|
APPROXIMATE
UTM
|
|
|
TOTAL
|
|
PROPERTY
NAME
|
LOCATION
|
CONCESSION
|
N
X E AREA LOCATION
|
#
OF TITLE
|
MINE
OFFICE
|
HECTARES
|
|
XXXXXXX
XXXXXXXXX #5
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
01003412x01
|
AREQUIPA
|
3.819
|
|
XXXXXXX
XXXXXXXXX #7
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
01003460X01
|
AREQUIPA
|
86.804
|
|
XXXXXXX
XXXXXXXXX #8
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
01003461X01
|
AREQUIPA
|
89.985
|
|
XXXXXXX
XXXXXXXXX #12
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
01003552X01
|
AREQUIPA
|
48.000
|
|
XXXXXXX
XXXXXXXXX #15
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
01003579X01
|
AREQUIPA
|
74.991
|
|
XXXXXXX
XXXXXXXXX #18
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
01004496X01
|
AREQUIPA
|
15.329
|
|
XXXXXXX
XXXXXXXXX #21
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
10007895
|
AREQUIPA
|
0.744
|
|
XXXXXXX
XXXXXXXXX #22
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
50014804
|
AREQUIPA
|
77.546
|
|
XXX
XXXXXX #79
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
01004187X01
|
AREQUIPA
|
599.898
|
|
TOTAL
HECTARES
|
997.116
|
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|
*
HECTARES ROUNDED TO NEAREST .001
|
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