Exhibit 10.1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT dated the 31st day of May, 2012.
BETWEEN:
JERVIS EXPLORATIONS INC.
(the "VENDOR")
OF THE FIRST PART
AND:
ECLIPSE RESOURCES INC.
(the "PURCHASER")
OF THE SECOND PART
WHEREAS:
A. The Vendor is the registered and beneficial owner of various mineral claims
(hereinafter the "CLAIMS"), collectively called TipTop Property. The Claims of
the Vendor are more particularly described in Schedule "A" attached hereto and
forming part of this Agreement;
B. The Vendor has agreed to sell and the Purchaser has agreed to purchase all of
the Claims of the Vendor in accordance with the terms of this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the terms and
covenants herein and other good and valuable consideration, the receipt and
sufficiency of which each party acknowledges, the parties hereto agree as
follows:
1. PURCHASE AND SALE OF ASSETS
1.1 SALE OF ASSETS. Subject to the terms and conditions of this Agreement, the
Vendor hereby sells, assigns and transfers to the Purchaser, and the Purchaser
hereby purchases the Vendor's Claims.
1.2 PURCHASE PRICE. The purchase price payable by the Purchaser to the Vendor
for the Vendor's Claims is USD $8,500 (the "PURCHASE PRICE"), subject to a
carried 3% Net Smelter Royalty as described in Appendix "A".
1.3 PAYMENT OF THE PURCHASE PRICE. The Purchase Price will be paid by the
delivery of a cheque.
1.4 DELIVERY OF CLAIMS. The Vendor delivers to the Purchaser, on execution
hereof, all of the Claims unconditionally and free and clear of all liens,
charges, or encumbrances, except where disclosed.
2. COVENANTS OF THE PARTIES
2.1 COVENANTS. The parties undertake to keep the information with respect to
this Agreement, the terms herein, and any related, underlying or subsequent
agreements (the "INFORMATION") confidential and not to directly or indirectly
disclose the Information at any time to any person or persons or use the
Information for any purpose whatsoever.
3. REPRESENTATIONS OF THE VENDOR
3.1 REPRESENTATIONS. The Vendor represents and warrants to the Purchaser as
follows, with the intent that the Purchaser will rely on the representations in
entering into this Agreement, and in concluding the purchase and sale
contemplated by this Agreement:
(a) CAPACITY TO SELL. The original Vendor is JERVIS EXPLORATIONS INC..
having the power and capacity to own and dispose of the Claims and to
enter into this Agreement and carry out its terms to the full extent;
(b) AUTHORITY TO SELL. The execution and delivery of this Agreement, and
the completion of the transaction contemplated by this Agreement has
been duly and validly authorized by all necessary corporate action on
the part of the Vendor, and this Agreement constitutes a legal, valid
and binding obligation of the Vendor enforceable against the Vendor in
accordance with its terms except as may be limited by laws of general
application affecting the rights of creditors;
(c) SALE WILL NOT CAUSE DEFAULT. Neither the execution and delivery of
this Agreement, nor the completion of the purchase and sale
contemplated by this Agreement will:
(i) violate any of the terms and provisions of the constating
documents or bylaws or articles of the Vendor, or any order,
decree, statute, bylaw, regulation, covenant, restriction
applicable to the Vendor or the Claims;
(ii) give any person the right to terminate, cancel or otherwise deal
with the Claims; or
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(iii)result in any fees, duties, taxes, assessments or other amounts
relating to the Claims becoming due or payable other than tax
payable by the Purchaser in connection with the purchase and
sale;
(d) ENCUMBRANCES. The Vendor owns and possesses and has a good marketable
title to the Claims free and clear of all legal claims, mortgages,
liens, charges, pledges, security interest, encumbrances or other
claims, except where as disclosed;
(e) LITIGATION. There is no litigation or administrative or governmental
proceeding or inquiry pending or, to the knowledge of the Vendor,
threatened against or relating to the Claims, nor does the Vendor know
of or have reasonable grounds that there is any basis for any such
action, proceeding or inquiry;
(f) NO DEFAULTS. Except as otherwise expressly disclosed in this Agreement
there has not been any default in any obligation to be performed under
any of the Claims, which are in good standing and in full force and
appropriate effect; and
(g) GOOD STANDING. Prior to closing this Agreement, the Vendor will
maintain, as required, the Claims in good standing.
4. COVENANTS OF THE VENDOR
4.1 PROCURE CONSENTS. The Vendor will diligently and expeditiously take all
reasonable steps requested by the Purchaser to obtain all necessary consents to
effect the transfer of the Claims.
4.2 COVENANT OF INDEMNITY. The Vendor will indemnify and hold harmless the
Purchaser from and against:
(a) any and all liabilities, whether accrued, absolute, contingent or
otherwise, existing at closing and which are not agreed to be assumed
by the Purchaser under this Agreement;
(b) any and all losses, claims, damages and costs incurred or suffered by
the Purchaser arising out of the breach or inaccuracy of any
representation or warranty of the Vendor contained in this Agreement;
and
(c) any and all actions, suits, proceedings, demands, assessments,
judgments, costs and legal and other expenses incident to any of the
foregoing.
4.3 EXECUTION OF ALL NECESSARY DOCUMENTS. The Vendor will execute all necessary
documents including such assignments as the Purchaser may require to effect the
transfer of all of the Claims, including but not limited to, internet contracts
and internet names.
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5. REPRESENTATIONS OF THE PURCHASER
5.1 REPRESENTATIONS. The Purchaser represents and warrants to the Vendor as
follows, with the intent that the Vendor will rely on these representations and
warranties in entering into this Agreement, and in concluding the purchase and
sale contemplated by this Agreement:
(a) STATUS OF PURCHASER. The Purchaser is a corporation duly incorporated,
validly existing and in good standing and has the power and capacity
to enter into this Agreement and carry out its terms; and
(b) AUTHORITY TO PURCHASE. The execution and delivery of this Agreement
and the completion of the transaction contemplated by this Agreement
has been duly and validly authorized by all necessary corporate action
on the part of the Purchaser, and this Agreement constitutes a legal,
valid and binding obligation of the Purchaser enforceable against the
Purchaser in accordance with its terms except as limited by laws of
general application affecting the rights of creditors.
6. COVENANTS OF THE PURCHASER
6.1 CONSENTS. The Purchaser will at the request of the Vendor execute and
deliver such applications for consent and such assumption agreements, and
provide such information as may be necessary to obtain the consents referred to
in paragraph 4.1 and will assist and cooperate with the Vendor in obtaining the
consents.
6.2 EXECUTION OF ALL NECESSARY DOCUMENTS. The Purchaser will execute all
necessary documents as the Vendor may require to effect the transfer of all of
the Claims.
7. SURVIVAL OF REPRESENTATIONS AND COVENANTS
7.1 VENDOR'S REPRESENTATIONS AND COVENANTS. All representations, covenants and
agreements made by the Vendor in this Agreement or under this Agreement will,
unless otherwise expressly stated, survive closing and any investigation at any
time made by or on behalf of the Purchaser will continue in full force and
effect for the benefit of the Purchaser.
7.2 PURCHASER'S REPRESENTATIONS AND COVENANTS. All representations, covenants
and agreements made by the Purchaser in this Agreement or under this Agreement
will, unless otherwise expressly stated, survive closing and any investigation
at any time made by or on behalf of the Vendor and will continue in full force
and effect for the benefit of the Vendor.
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8. LIABILITIES NOT ASSUMED
8.1 LIABILITIES NOT ASSUMED. The Purchaser will not assume any liabilities of
the Vendor. The Purchaser will not be responsible for any liability of the
Vendor, past, present or future, relating to the Claims, and the Vendor will
indemnify and save harmless the Purchaser from and against any such claim.
9. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PURCHASER
9.1 CONDITIONS. All obligations of the Purchaser under this Agreement are
subject to the fulfillment of the following conditions:
(a) VENDOR'S REPRESENTATIONS. The Vendor's representations contained in
this Agreement will be true.
(b) VENDOR'S COVENANTS. The Vendor will have performed and complied with
all agreements, covenants and conditions as required by this
Agreement.
(c) CONSENTS. The Purchaser will have received duly executed copies of the
consents or approvals referred to in paragraph 4.1.
9.2 EXCLUSIVE BENEFIT. The foregoing conditions are for the exclusive benefit of
the Purchaser and any such condition may be waived in whole or in part by the
Purchaser delivering to the Vendor a written waiver to that effect signed by the
Purchaser.
10. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE VENDOR
10.1 CONDITIONS. All obligations of the Vendor under this Agreement are subject
to the fulfillment of the following conditions:
(a) PURCHASER'S REPRESENTATIONS. The Purchaser's representations contained
in this Agreement will be true.
(b) PURCHASER'S COVENANTS. The Purchaser will have performed and complied
with all covenants, agreements and conditions as required by this
Agreement.
(c) CONSENTS OF THIRD PARTIES. All consents or approvals required to be
obtained by the Vendor for the purpose of selling, assigning or
transferring the Claims have been obtained, provided that this
condition may only be relied upon by the Vendor if the Vendor has
diligently exercised its best efforts to procure all such consents or
approvals and the Purchaser has not waived the need for all such
consents or approvals.
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10.2 EXCLUSIVE BENEFIT. The foregoing conditions are for the exclusive benefit
of the Vendor and any such condition may be waived in whole or in part by the
Vendor delivering to the Purchaser a written waiver to that effect signed by the
Vendor.
11. GENERAL
11.1 GOVERNING LAW. This Agreement and each of the documents contemplated by or
delivered under or in connection with this Agreement are governed exclusively
by, and are to be enforced, construed and interpreted exclusively in accordance
with the laws of British Columbia which will be deemed to be the proper law of
the Agreement.
11.2 PROFESSIONAL FEES. Each of the parties will bear the fees and disbursements
of their respective lawyers, advisers and consultants engaged by them
respectively in connection with the transactions contemplated by this Agreement
prior to the closing.
11.3 ASSIGNMENT. No party will assign this Agreement, or any part of this
Agreement, without the prior written consent of the other party. Any purported
assignment without the required consent is not binding or enforceable against
any party.
11.4 ENUREMENT. This Agreement ensures to the benefit of and binds the parties
and their respective successors and permitted assigns.
11.5 NOTICE. All notices required or permitted to be given under this Agreement
will be in writing and personally delivered to the address of the intended
recipient set out on the first page of this Agreement or at such other address
as may from time to time be notified by any of the parties in the manner
provided in this Agreement.
11.6 FURTHER ASSURANCES. The parties will execute and deliver all further
documents and take all further action reasonably necessary or appropriate to
give effect to the provisions and intent of this Agreement and to complete the
transactions contemplated by this Agreement.
11.7 REMEDIES CUMULATIVE. The rights and remedies under this Agreement are
cumulative and are in addition to and not in substitution for any other rights
and remedies available at law or in equity or otherwise. Any party to this
Agreement may terminate this Agreement if any other party is in breach of or
defaults under any material term or condition of this Agreement or has made a
material misrepresentation in this Agreement. No single or partial exercise by a
party of any right or remedy precludes or otherwise affects the exercise of any
other right or remedy to which that party may be entitled.
11.8 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and there are no representations, express or implied, statutory or
otherwise and no collateral agreements other than as expressly set out or
referred to in this Agreement.
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11.9 HEADINGS. The division of this Agreement into sections and the insertion of
headings are for convenience only and do not form part of this Agreement and
will not be used to interpret, define or limit the scope, extent or intent of
this Agreement.
11.10 SEVERABILITY. Each provision of this Agreement is severable. If any
provision of this Agreement is or becomes illegal, invalid or unenforceable, the
illegality, invalidity or unenforceability of that provision will not affect the
legality, validity or enforceability of the remaining provisions of this
Agreement.
11.11 SCHEDULES. The Schedules attached hereto form an integral part of this
Agreement.
11.12 TIME OF THE ESSENCE. Time will be of the essence of this Agreement.
11.13 COUNTERPARTS. This Agreement and all documents contemplated by or
delivered in connection with this Agreement may be executed and delivered by
facsimile or original and in any number of counterparts, and each executed
counterpart will be considered to be an original. All executed counterparts
taken together will constitute one agreement.
IN WITNESS WHEREOF the parties have duly executed this Agreement by their duly
authorized officers effective the first day and year written above.
VENDOR: JERVIS EXPLORATIONS INC.
PURCHASER: ECLIPSE RESOURCES INC.
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SCHEDULE "A"
THIS IS SCHEDULE "A" to the Asset Purchase Agreement.
MINERAL CLAIM TITLE
TO: XXXXXX XXXXX
ECLIPSE RESOURCES INC.
FROM: JERVIS EXPLORATIONS INC.
Re: TIPTOP PROPERTY PAYMENT
PROPERTY: The Property consists of the following Claims:
NAME NUMBER HECTARES EXPIRY DATE
---- ------ -------- -----------
TIPTOP #986584 145.18 May 15, 2013
Terms: $8,500 USD, due upon receipt of Property Report, plus 3% Net Smelter
Return as described in Appendix "A"
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XXXXXXXX "X" - XXXXXXX
3% NET SMELTER RETURNS
1. In this Agreement, "3% NET SMELTER RETURNS" means 3% of the net amount of
money received by the Purchaser for its own account from the sale of ore, or ore
concentrates or other mineral products from the Claims to a smelter or other
mineral products buyer after deduction of smelter and/or refining charges, ore
treatment charges, penalties and any and all charges made by the purchaser of
ore, concentrates, or other mineral products, less any and all transportation
costs which may be incurred in connection with the transportation of ore or
concentrates, less all umpire charges which the purchaser may be required to
pay.
2. Payment of Net Smelter Returns by the Purchaser to the Vendor shall be made
semi-annually within 60 days after the end of each fiscal half year of the
Purchaser and shall be accompanied by unaudited financial statements pertaining
to the operations carried out by the Purchaser on the Claims. Within 90 days
after the end of each fiscal year of the Purchaser in which Net Smelter Returns
are payable to the Vendor, the records relating to the calculation of Net
Smelter Returns for such year shall be audited and any resulting adjustments in
the payment of Net Smelter Returns payable to the Vendor shall be made
forthwith. A copy of the said audit shall be delivered to the Vendor within 30
days of the end of such 90-day period.
3. Each annual audit shall be final and not subject to adjustment unless the
Vendor delivers to the Purchaser written exceptions in reasonable detail within
six months after the Vendor receives the report. The Vendor, or its
representative duly authorized in writing, at its expense, shall have the right
to audit the books and records of the Purchaser related to Net Smelter Returns
to determine the accuracy of the report, but shall not have access to any other
books and records of the Purchaser. The audit shall be conducted by a chartered
or certified public accountant of recognized standing. The Purchaser shall have
the right to condition access to its books and records on execution of a written
agreement by the auditor that all information will be held in confidence and
used solely for purposes of audit and resolution of any disputes related to the
report. A copy of the Vendor's report shall be delivered to the Purchaser upon
completion, and any discrepancy between the amount actually paid by the
Purchaser and the amount which should have been paid according to the Vendor's
report shall be paid forthwith, one party to the other. In the event that the
said discrepancy is to the detriment of the Vendor and exceeds 5% of the amount
actually paid by the Purchaser, then the Purchaser shall pay the entire cost of
the audit.
4. Any dispute arising out of or related to any report, payment, calculation or
audit shall be resolved solely by arbitration as provided in the Agreement. No
error in accounting or in interpretation of the Agreement shall be the basis for
a claim of breach of fiduciary duty, or the like, or give rise to a claim for
exemplary or punitive damages or for termination or rescission of the Agreement
or the estate and rights acquired and held by the Purchaser under the terms of
the Agreement.
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