LOCK-UP AGREEMENT
Execution
Copy -- Xxxx Xxxxx Version
December
5, 2007
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TO:
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THE
PERSONS EXECUTING AN ACCEPTANCE ATTACHED
HERETO
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(each
such person, a "Seller" and collectively, the
"Sellers")
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In connection with a support agreement dated the date hereof, (the
"Support Agreement"), China Minmetals Non-Ferrous Metals Co.
Ltd. and Jiangxi Copper Company Limited, each a corporation existing under
the
laws of the People's Republic of China (together, the
"Offeror"), proposes to make an offer (the
"Offer") to acquire all of the issued and outstanding Shares
of
Northern Peru Copper Corp. (the "Company") together with all of
the Shares issued upon the exercise of Options. Capitalized terms
used in this lock-up agreement (this "Lock-Up
Agreement") and not otherwise defined herein
that are defined in the Support Agreement shall have the respective meanings
ascribed thereto in the Support Agreement, as it may be amended from time
to
time.
This Lock-Up Agreement sets out the terms and conditions of the several and
not
joint agreements of each Seller: (i) to support the Offer; (ii) to deposit
or
cause to be deposited under, and not withdraw or cause to be withdrawn from,
the
Offer all of the Shares currently beneficially owned or controlled by such
Seller, as listed immediately below the signature of such Seller evidencing
such
Seller's acceptance of this Lock-Up Agreement (the
"Acceptance"); (iii) in the case of each Seller holding
outstanding Options (each, an "Optionholder" and collectively,
the "Optionholders"), to conditionally exercise in accordance
with the procedures set forth in the Support Agreement the Options currently
owned by such Optionholder, as listed immediately below such Seller's
Acceptance, for Shares (the Shares acquired upon the exercise of Options
and the
Bonus Shares (if any) issued to a Seller, collectively referred to as
"Subsequently Acquired Shares") and to deposit or cause to be
deposited such Subsequently Acquired Shares under the Offer (such Shares
referred to in (ii) above and such Subsequently Acquired Shares are hereinafter
collectively referred to as the "Subject Shares"); and (iv) to
comply with the restrictions, obligations and covenants of a Seller set forth
herein.
ARTICLE 1
THE
OFFER
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1.1 Not
later than the Latest Mailing Date, Offeror shall mail the Offer
in
accordance with the terms of the Support Agreement. Except as
provided in the Support Agreement, the conditions to the making
of the
Offer are for the sole benefit of Offeror and any of such conditions
may
be waived by Offeror in whole or in part in its sole discretion
at any
time. Subject to the satisfaction or waiver of the conditions
of the Offer, Offeror shall within the time periods required by
Applicable
Laws take up and pay for the Shares deposited under the
Offer.
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1.2 Each
Seller acknowledges and agrees that Offeror may, in its sole discretion,
modify or waive any term or condition of the Offer; provided that
Offeror
shall not, without the prior written consent of the Company, take
any
action set out in section 1.1(c) of the Support Agreement.
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ARTICLE 2
COVENANTS
OF THE SELLERS
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2.1 Each
Seller hereby agrees, from the date hereof until the earlier
of: (i) the termination of this Lock-Up Agreement pursuant to
Article 6; and (ii) the Effective Time,
except in accordance with the terms of this Lock-Up Agreement,
not
to:
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(a)
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acquire
direct or indirect beneficial ownership or control of any additional
Shares or Options or obtain or enter into any right to do so, with
the
exception of any Shares acquired pursuant to the exercise of Options
as
contemplated by Section 3.2 hereof and any
Bonus Shares listed immediately below such Seller's
Acceptance;
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(b)
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option,
sell, assign, transfer, alienate, dispose of, gift, grant, pledge,
create
or permit an Encumbrance on, grant a security interest in or otherwise
convey any Options or Subject Shares or any right or interest in
either,
or agree to do any of the foregoing except pursuant to the Offer
or
pursuant to Section 2.5;
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(c)
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grant
or agree to grant any proxy or other right to the Subject Shares,
or enter
into any voting trust or pooling agreement or arrangement or enter
into or
subject any of such Subject Shares to any other agreement, arrangement,
understanding or commitment, formal or informal, with respect to
or
relating to the voting thereof;
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(d)
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in
any manner, directly or indirectly, including through any Representative,
solicit, initiate, or knowingly encourage any inquiries, proposals,
offers
or public announcements (or the submission or initiation of any
of the
foregoing) from any person regarding any Acquisition Proposal,
engage in
any negotiations concerning, or provide any information to, or
have any
discussions with or otherwise cooperate with, any person relating
to an
Acquisition Proposal, or otherwise knowingly facilitate or knowingly
encourage any effort or attempt to make or implement an Acquisition
Proposal;
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(e)
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solicit
or arrange or provide assistance to any other person to arrange
for the
solicitation of, purchases of or offers to sell Shares or act in
concert
or jointly with any other person for the purpose of acquiring Shares
for
the purpose of affecting the control of the Company;
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(f)
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deposit
or cause to be deposited such Seller's Subject Shares under any
Acquisition Proposal nor support any Acquisition Proposal in any
manner
whatsoever;
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(g)
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except
as required by applicable Laws, prior to the public announcement
by
Offeror of its intention to make the Offer, directly or indirectly,
disclose to any person (other than the Company and its financial
and legal
advisors) the existence of this Lock-Up Agreement or the terms
and
conditions of this Lock-Up Agreement, or the possibility of Offeror
making
the Offer or any terms or conditions or other information concerning
the
Offer;
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(h)
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take
any action of any kind, directly or indirectly, which might reasonably
be
regarded as likely to reduce the success of, or delay or interfere
with
the completion of the transactions contemplated by the Support
Agreement;
and
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(i)
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take
any action to encourage or assist any other person to do any of
the
prohibited acts referred to in the foregoing provisions of this
Section 2.1.
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2.2 Each
Seller hereby agrees, from the date hereof until the earlier of:
(i) the termination of this Lock-Up Agreement pursuant to Article 6; and (ii) the Effective Time,
except in accordance with the terms of this Lock-Up Agreement,
to:
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(a)
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immediately
cease, cause its Representatives to cease and cause to be terminated
any
existing solicitations, discussions or negotiations with any parties
(other than the Offeror or any Representative of the Offeror) with
respect
to any Acquisition Proposal or any potential Acquisition
Proposal;
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(b)
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promptly
notify Offeror, at first orally and then in writing, of all Acquisition
Proposals currently under consideration or of which the Seller
is
aware;
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(c)
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promptly
(and in any event within 24 hours after it has received any proposal,
inquiry, offer or request) notify Offeror, at first orally and
then in
writing of: (i) any proposal, inquiry, offer or request,
or any amendment to any of the foregoing (each, a "Third Party
Inquiry") that the Seller receives or of which the Seller becomes
aware that relates to, constitutes or could lead to an Acquisition
Proposal; or (ii) any request that the Seller receives for discussions
or
negotiations relating to an Acquisition Proposal or any request
for
information relating to the Company or its Subsidiaries or any
of their
mineral properties or contractual or legal rights or for access
to
properties, books and records or a list of Shareholders. Such
notice to Offeror shall include a description of the terms and
conditions
of, and the identity of the person making, any Third Party Inquiry
and
shall include copies of such Third Party Inquiry and any other
written
correspondence related to such Third Party Inquiry. The Seller
shall also provide such other details of the Third Party Inquiry
as
Offeror may reasonably request. The Seller shall keep Offeror
promptly and fully informed of the status, including any change to the
material terms, of any Third Party Inquiry, and will respond promptly
to
all inquiries by Offeror with respect thereto; and
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(d)
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exercise
the voting rights attaching to the Subject Shares and otherwise
use the
Seller's commercially reasonable efforts in the Seller's capacity
as a
Shareholder to oppose any proposed action by the Company or its
Subsidiaries, the Shareholders or any other person (A) in respect
of any
Acquisition Proposal involving the Company or its Subsidiaries,
(B) which
may in any manner adversely affect, by delay or otherwise, the
take-up of
and payment for the Subject Shares deposited under the Offer or
the
successful completion of the Offer, including without limitation,
any
amendment to the memorandum or articles, constating documents or
corporate
structure of the Company, or (C) which would reasonably be expected
to
result in a Material Adverse Effect. In connection therewith,
the Seller hereby appoints Offeror as the Seller's attorney in
fact (which
appointment is unconditional, irrevocable (subject to Article 6), and is coupled with an
interest) for and on such Seller's behalf to execute a proxy appointing
a
person designated by Offeror to attend and act on behalf of the
Seller at
any meeting of Shareholders and to execute one or more Shareholder
consents or other Shareholder approval documents in respect of
any of the
matters referred to in this Section 2.2(d). Offeror shall advise the
Seller upon executing any proxies or Shareholder consents or other
Shareholder approval documents in respect of the Subject Shares
held by
the Seller.
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2.3 Each
Seller covenants to co-operate with Offeror in making all requisite
regulatory filings.
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2.4 Nothing
in this Article 2 shall prevent a Seller
who is a member of the board of directors of the Company or is
a senior
officer of the Company from engaging, in such Seller's capacity
as a
director or senior officer of the Company, in discussions or negotiations
with a person in response to an unsolicited bona fide Acquisition
Proposal made in writing to the board of directors of the Company
by such
person (which Acquisition Proposal did not result from a breach
of this
Lock-Up Agreement or the Support Agreement) in circumstances where
the
Company is permitted by section 3.3(a) of the Support Agreement
to engage
in such discussions or negotiations. For greater certainty,
each Seller acknowledges that this Section 2.4 shall not affect such Seller's obligation
to
deposit or cause to be deposited (and, except as permitted by this
Lock-Up
Agreement, not withdraw or cause to be withdrawn) the Subject Shares
under
the Offer in accordance with the terms and conditions of this Lock-Up
Agreement.
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2.5 (a) Upon
prior written notice to the Offeror prior to the 20th
calendar day
after the mailing of the Offer, a Seller may transfer any of its
Subject
Shares:
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(i)
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as
a bona fide gift or gifts, provided that prior to such transfer
the donee
or donees agrees to be bound by the terms and conditions of this
Agreement
and delivers an executed counterpart of this Agreement prior to
such
transfer as if it were an original party hereto;
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(ii)
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to
any trust for the direct or indirect benefit of the undersigned
or
immediate family of the undersigned, provided that prior to such
transfer
the trustees of the trust agree to be bound by the terms and conditions
of
this Agreement and delivers an executed counterpart of this Agreement
prior to such transfer as if it were an original party hereto;
or
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(iii)
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to
any affiliate, provided that prior to such transfer the affiliate
agrees
to be bound by the terms and conditions of this Agreement and deliver
an
executed counterpart of this Agreement prior to such transfer as
if it
were an original party hereto.
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(b) No
transfers pursuant to this Section 2.5 shall
relieve Offeror or such Seller, as applicable, of its obligations
hereunder.
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(c) For
purposes of this agreement, "immediate family" shall mean any relationship
by blood, marriage or adoption, not more remote than first cousin
and
"affiliate" shall have the meaning attributed to it under the Business
Corporations Act (British Columbia).
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ARTICLE 3
AGREEMENT
TO TENDER
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3.1 This
Lock-Up Agreement when signed and delivered by a Seller will constitute
the agreement of such Seller, among other things, to accept the
Offer and
validly deposit or cause to be deposited and cause all acts and
things to
be done to deposit under the Offer, and not withdraw or cause to
be
withdrawn from the Offer, all of the Shares currently beneficially
owned
or controlled by such Seller, together with any Bonus Shares issuable
to
such Seller, and, in any event, not less than the aggregate number
of
Shares and Bonus Shares set forth immediately below such Seller's
Acceptance, together with a duly completed and executed letter
of
transmittal (or other appropriate instrument) (a
"Transmittal"), on the terms and conditions set out
herein.
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3.2 This
Lock-Up Agreement when signed and delivered by an Optionholder
will
constitute the agreement of such Optionholder, among other things,
to
conditionally exercise (as contemplated by
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| section 1.5 of the Support Agreement) all of the Options currently owned by such Optionholder and, in any event, not less than the number of Options set forth immediately below such Optionholder's Acceptance and to accept the Offer and validly deposit or cause to be deposited under the Offer and not withdraw or cause to be withdrawn from the Offer all of the Subsequently Acquired Shares issued upon such exercise of Options, together with a duly completed and executed Transmittal, on the terms and conditions set out herein or as otherwise contemplated by section 1.5 of the Support Agreement. |
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3.3 Each
Seller agrees that if Offeror makes the Offer in compliance with
Section
1.1 and Section 1.2, such
Seller shall deposit or cause to be
deposited with the depository under the Offer (a) within 20 calendar
days
of the mailing of the Offer, all of the Subject Shares then outstanding
(and such Seller shall ensure that all of such Subject Shares have
become
registered in the name of the Seller prior to such deposit), and
(b) no
later than three business days prior to the first scheduled expiry
time of
the Offer, all such documents as may be necessary or desirable
to deposit
or cause to be deposited all of the Subsequently Acquired Shares
(including those to be acquired pursuant to the conditional exercise
of
Options), in each case in accordance with the terms of the Offer
or as
otherwise contemplated by section 1.5 of the Support Agreement,
and
thereafter, except as may be permitted by this Lock-Up Agreement
or unless
this Lock-Up Agreement is terminated in accordance with Article 6, such Seller shall continue to
support the Offer and shall not withdraw or take any action to
withdraw
any of such Seller's Subject Shares deposited under the Offer including,
without limitation, withdrawing or revoking a Transmittal (notwithstanding
any statutory rights or other rights under the terms of the Offer
or
otherwise which such Seller might have and whether or not a Superior
Proposal is made or exists or the Company recommends or fails to
recommend
or withdraws, modifies or qualifies its recommendation of the
Offer).
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3.4 For
greater certainty, for the purposes of this Lock-Up Agreement,
the term
"Subject Shares" shall refer to all the Shares which the Sellers
are
required to deposit or cause to be deposited under the Offer pursuant
to
the terms of this Lock-Up Agreement and shall include all shares
or other
securities into or for which the Subject Shares may be converted,
exchanged or otherwise changed pursuant to any reorganization,
merger,
amalgamation or other transaction involving the Company prior to
the
acquisition of the Subject Shares by Offeror, and shall also include
any
and all distributions of cash, securities or other property made
on the
Subject Shares on or after the date hereof, if any.
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ARTICLE 4
REPRESENTATIONS
AND WARRANTIES
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4.1 Each
Seller by its acceptance hereof represents and warrants as follows
and
acknowledges that Offeror is relying upon such representations
and
warranties in connection with entering into this Lock-Up Agreement,
making
the Offer and purchasing the Subject Shares:
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(a)
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such
Seller is the beneficial owner of or controls all of the Shares
and/or Options and is entitled to receive all of the Bonus
Shares set forth immediately below such Seller's Acceptance and,
except as
set forth immediately below such Seller's Acceptance, such Seller
is the
registered owner of such Shares and/or Options and will be the
registered
owner of such Bonus Shares upon their issuance prior to the Expiry
Time;
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(b)
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(i)
the only securities of the Company beneficially owned, directly
or
indirectly, or over which control or direction is exercised by
such Seller
are those listed immediately below such Seller's Acceptance, and
(ii)
other than any Options or Bonus Shares listed immediately below
such
Seller's Acceptance and Shares issuable on the exercise of such
Options,
such Seller does not own, directly or indirectly, or control any
convertible securities and has no other agreement or option, or
right or
privilege (whether by law, pre-emptive or contractual) capable
of becoming
an agreement or option, for the purchase
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(c)
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such
Seller has the sole right to sell and vote all the Subject Shares
now
beneficially owned or controlled, and will have the right to sell
and vote
all the Subject Shares hereafter acquired by such Seller (subject
to any
conditions on Shares issued upon the conditional exercise of Options
in
accordance with Section 3.2);
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(d)
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all
the Subject Shares held by such Seller will, at the time at which
Offeror
takes up and pays for such Subject Shares, be beneficially owned
by such
Seller with good and marketable title thereto, free and clear of
any and
all Encumbrances and are and will at such time be issued and outstanding
as fully paid and non-assessable shares in the capital of the
Company;
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(e)
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such
Seller has no agreement, option, or any right or privilege (whether
by
law, pre-emptive or contractual) capable of becoming an agreement
or
option, for the purchase, acquisition or transfer from such Seller
of any
of the Subject Shares owned by such Seller or any interest therein
or
right thereto, except pursuant to this Lock-Up Agreement;
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(f)
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such
Seller has no voting trust, pooling agreement, or any right or
privilege
(whether by law, pre-emptive or contractual) capable of becoming
a voting
trust or pooling agreement, or other agreement or arrangement affecting
the Subject Shares or the ability of such Seller to exercise all
ownership
rights thereto, including the voting of the Subject Shares;
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(g)
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there
are no legal proceedings in progress before any public body, court
or
authority or, to the knowledge of such Seller, pending or threatened
against such Seller that would adversely affect in any manner the
ability
of such Seller to enter into this Lock-Up Agreement and to perform
its
obligations hereunder or the title of such Seller to any of the
Subject
Shares and there is no judgment, decree or order against such Seller
that
would adversely affect in any manner the ability of such Seller
to enter
into this Lock-Up Agreement and to perform its obligations hereunder
or
the title of such Seller to any of the Subject Shares;
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(h)
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if
such Seller is a corporation, such Seller is validly existing under
the
laws of its jurisdiction of incorporation;
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(i)
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the
execution and delivery by such Seller of this Lock-Up Agreement,
the
authorization of this Lock-Up Agreement by such Seller, and the
performance by such Seller of its obligations under this Lock-Up
Agreement, (i) do not require any authorization to be obtained
by such
Seller (other than such authorizations as have been obtained by
such
Seller on or before the date hereof), and (ii) will not result
(with or
without notice or the passage of time) in a violation or breach
of or
constitute a default under any provision of (A) any applicable
Laws, (B)
any note, bond, mortgage, indenture, contract or agreement to which
such
Seller is party or by which such Seller or its assets is bound,
(C) any
judgment, decree, order or award of any Governmental Authority
having
jurisdiction over such Seller; or (D) if such Seller is a corporation,
the
constating documents, by-laws or resolutions of the board of directors
or
shareholders thereof; and
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(j)
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this
Lock-Up Agreement has been duly executed and delivered by such
Seller and
constitutes a legal, valid and binding obligation of such Seller,
enforceable against such
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| Seller in accordance with its terms, subject to bankruptcy, insolvency and other applicable Laws affecting creditors' rights generally, and to general principles of equity. | ||
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4.2
Each Offeror represents and warrants as follows and acknowledges
that each
Seller is relying upon such representations and warranties in connection
with entering into this Lock-Up Agreement and the sale to Offeror
of the
Subject Shares:
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(a)
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Offeror
is a corporation validly existing under the laws of the People's
Republic
of China and Offeror has the requisite corporate power and authority
to
execute and deliver this Lock-Up Agreement, to make the Offer and
to
perform its obligations hereunder and under the Support
Agreement;
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(b)
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this
Lock-Up Agreement has been duly executed and delivered by Offeror
and
constitutes a legal, valid and binding obligation of Offeror, enforceable
against Offeror in accordance with its terms, subject to bankruptcy,
insolvency and other applicable Laws affecting creditors' rights
generally, and general principles of equity; and
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(c)
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neither
the execution and delivery by Offeror of this Lock-Up Agreement
or the
Support Agreement, nor the performance by Offeror of its obligations
under
this Lock-Up Agreement or the Support Agreement shall result in
the breach
or violation of, or constitute a default under, or conflict with
any
provision of: (i) the constating documents, by-laws or resolutions of
the board of directors (or any committee thereof) of Offeror, or
(ii) any
Laws to which Offeror is subject or by which Offeror is bound,
except
where such breach or violation would not materially adversely affect
Offeror’s ability to perform its obligations under this Lock-Up Agreement
or the Support Agreement.
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ARTICLE 5
ALTERNATIVE
TRANSACTION
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5.1 Each
Seller irrevocably covenants in favour of Offeror that if (i) Offeror
determines, acting reasonably, that it is necessary or desirable
to
proceed with an alternative transaction (including an amalgamation
or a
plan of arrangement including Offeror or any affiliate thereof)
(the
"Alternative Transaction") and (ii) the Company supports
the completion of such Alternative Transaction, each Seller shall
support
the completion of such Alternative Transaction in the same manner
as the
Offer, including using all reasonable efforts to facilitate the
successful
completion of such Alternative Transaction.
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5.2 If
an Alternative Transaction involves a meeting or meetings of
securityholders of the Company, each Seller irrevocably covenants
in
favour of Offeror to vote or cause to be voted and cause all acts
and
things to be done to vote all of the Subject Shares in favour of
any
matters necessary or ancillary to the completion of the transactions
contemplated by such Alternative Transaction.
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5.3 In
the event of any proposed Alternative Transaction, any reference
in this
Lock-Up Agreement to the Offer shall refer to the Alternative Transaction
to the extent applicable, all terms, covenants, representations
and
warranties of this Lock-Up Agreement shall be and shall be deemed
to have
been made in the context of the Alternative Transaction, and all
references to the expiry time of the Offer, including the Expiry
Time,
herein shall refer to the date of closing of the transactions contemplated
by the Alternative Transaction.
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ARTICLE 6
TERMINATION
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6.1 This
Lock-Up Agreement may be terminated by notice in writing in respect
of a
Seller:
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(a)
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at
any time by mutual consent of Offeror and such Seller;
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(b)
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by
such Seller if:
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(i)
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Offeror
has not complied in any material respect with its covenants contained
in
this Lock-Up Agreement or if any representation or warranty of
Offeror
herein is untrue or incorrect in any material respect and, in each
case,
such non-compliance or inaccuracy is reasonably likely to prevent
consummation of the Offer and is not curable or, if curable, is
not cured
by the earlier of the date which is 5 days from the date of written
notice
of such breach and the business day prior to the Expiry Time;
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(ii)
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Offeror
modifies or waives any term or condition of the Offer in a manner
contrary
to Section 1.2 of this Lock-Up Agreement;
or
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(iii)
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the
Offer has been made and the Offeror has not (for any reason other
than the
failure of the Seller to deposit its Shares for purchase) taken
up and
paid for all Shares deposited under the Offer in accordance with
Applicable Law,
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(iv)
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a
Superior Proposal is made and (a) the Support Agreement is terminated
in
accordance with its terms, and (b) if a Non-Completion Event has
occurred
under the terms of the Support Agreement, the Non-Completion Payment
shall
have first been paid.
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provided
that at the time of such termination pursuant to this Section 6.1(b) by such Seller, such Seller is not
in
default in the performance of its obligations under this Lock-Up
Agreement;
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(c)
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by
Offeror if:
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(i)
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any
Seller has not complied in any material respect with its covenants
contained herein (following written notice to the applicable Seller
of
such non-compliance and provided such default is not rectified
by the
earlier of the date that is 5 days from the date of such notice
and the
business day prior to the Expiry Time) or if any representation
or
warranty of any Seller under this Lock-Up Agreement is untrue or
incorrect
in any material respect;
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(ii)
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any
of the conditions of the Offer is not satisfied at the Expiry Time
and
Offeror elects not to waive such condition; or
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(iii)
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the
Support Agreement is terminated for any reason,
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provided
that at the time of such termination pursuant to this Section 6.1(c) by Offeror, Offeror is not in material
default in the performance of its obligations under this Lock-Up
Agreement;
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(d)
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no
termination pursuant to this Section 6.1
shall prejudice the rights of a party as a result of any breach
by any
other party of its obligations hereunder and any termination pursuant
to
Section 6.1(b) shall only be effective with
respect to such terminating Seller; and
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(e)
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upon
termination of this Lock-Up Agreement in accordance with this Section
6.1, such Seller shall be entitled to
withdraw
any of such Seller's Shares deposited under the Offer.
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ARTICLE 7
GENERAL
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7.1 In
this Lock-Up Agreement, unless otherwise expressly stated or the
context
otherwise requires:
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(a)
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references
to "herein", "hereby", "hereunder", "hereof" and similar expressions
are
references to this Lock-Up Agreement and not to any particular
Section of
or Schedule to this Lock-Up Agreement;
|
|
|
(b)
|
references
to an "Article" or a "Section" are references to an Article or
a Section
of this Lock-Up Agreement;
|
|
|
(c)
|
words
importing the singular shall include the plural and vice versa,
and words
importing gender shall include the masculine, feminine and neuter
genders;
|
|
|
(d)
|
the
terms "person" and "business day" shall have the meanings ascribed
thereto
in the Support Agreement;
|
|
|
(e)
|
the
use of headings is for convenience of reference only and shall
not affect
the construction or interpretation hereof; and
|
|
|
(f)
|
wherever
the term "includes" or "including" is used, it shall be deemed
to mean
"includes, without limitation" or "including, without limitation",
respectively.
|
|
|
7.2 The
parties waive the application of any rule of law which otherwise
would be
applicable in connection with the construction of this Lock-Up
Agreement
that ambiguous or conflicting terms or provisions should be construed
against the party who (or whose counsel) prepared the executed
agreement
or any earlier draft of the same.
|
||
|
7.3 This
Lock-Up Agreement shall become effective in respect of each Seller
upon
execution and delivery thereof by such Seller.
|
||
|
7.4 This
Lock-Up Agreement may be executed by facsimile and in any number
of
counterparts, each of which shall be deemed to be original and
all of
which taken together shall be deemed to constitute one and the
same
instrument, and it shall not be necessary in making proof of this
Lock-Up
Agreement to produce more than one counterpart.
|
||
|
7.5 Subject
to the terms and conditions of this Lock-Up Agreement, each Seller
agrees
to cooperate in good faith and use all reasonable efforts to take,
or
cause to be taken, all action and to do, or cause to be done, all
things
necessary, desirable or advisable (a) to facilitate the successful
consummation of, and make effective as promptly as is practicable,
the
transactions contemplated by the Support Agreement, the Offer and
this
Lock-Up Agreement, and (b) for the discharge by such Seller of
its
|
||
-10-
| obligations under this Lock-Up Agreement, including its obligations under Applicable Laws, including in each case the execution and delivery of such documents as another party hereto may reasonably require. | ||
|
7.6 The
representations and warranties set forth in this Lock-Up Agreement
shall
survive the acquisition by Offeror of the Subject Shares and,
notwithstanding such acquisition, shall continue in full force
and effect
for the benefit of the party to whom such representations and warranties
are given.
|
||
|
7.7 Each
Seller consents to the disclosure of the substance of this Lock-Up
Agreement in any press release or any circular relating to the
Offer and
to the filing of this Lock-Up Agreement as may be required pursuant
to
applicable Laws.
|
||
|
7.8 This
Lock-Up Agreement shall be binding upon and shall enure to the
benefit of
and be enforceable by each of the parties hereto and their respective
successors, assigns, heirs, executors and personal
representatives. This Lock-Up Agreement shall not be assignable
by any party except in accordance with Section 7.9.
|
||
|
7.9 This
Lock-Up Agreement and the rights hereunder are not transferable
or
assignable by a Seller or Offeror without the prior written consent
of the
other (which consent may be withheld at the discretion of the other)
except that Offeror may assign all or any part of its rights and
obligations under this Lock-Up Agreement to a corporation whose
shares are
directly or indirectly wholly owned by China Minmetals Non-Ferrous
Metals
Co. Ltd. and/or Jiangxi Copper Company Limited or collaterally
assign this
Lock-Up Agreement as security to its financing sources.
|
||
|
7.10 Time
shall be of the essence of this Lock-Up Agreement.
|
||
|
7.11 If
any term, provision, covenant or restriction of this Lock-Up Agreement
is
held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and
restrictions of this Lock-Up Agreement shall remain in full force
and
effect and shall in no way be affected, impaired or invalidated
and the
parties shall negotiate in good faith to modify the agreement to
preserve
each party's anticipated benefits under this Lock-Up
Agreement.
|
||
|
7.12 Each
Seller acknowledges that it:
|
||
|
(a)
|
has
been advised by Offeror to seek independent legal advice;
|
|
|
(b)
|
has
sought such independent legal advice or deliberately decided not
to do
so;
|
|
|
(c)
|
understands
its rights and obligations under this Lock-Up Agreement; and
|
|
|
(d)
|
is
executing this Lock-Up Agreement voluntarily.
|
|
|
7.13 Any
notice or other communication required or permitted to be given
hereunder
shall be sufficiently given if delivered or sent by facsimile transmission
as follows:
|
||
|
(a)
|
in
the case of a Seller, to the address set forth opposite such Seller's
Acceptance; and
|
|
|
(b)
|
in
the case of Offeror:
|
|
|
China
Minmetals Non-Ferrous Metals Co. Ltd.
Xxxx
X000, 0 Xxxxxxx Xxxx
|
||
-00-
|
Xxxxxxx
Xxxxxxxx, Xxxxxxx
Xxxxx 100044
|
||
|
Facsimile: +
8610-6849-5215
Attention: Xx.
Xxxxxx Xxxx
|
||
|
and
|
||
|
Jiangxi
Copper Company Limited
00
Xxxxx Xxxxxx
Xxxxx,
Xxxxxxx
Xxxxx 000000
|
||
|
Facsimile: +
8670-1377-7656
Attention: Xx.
Xxx Kebing
|
||
|
with
a copy (which shall not itself constitute notice) to:
|
||
|
Davies
Xxxx Xxxxxxxx & Xxxxxxxx LLP
0
Xxxxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
|
||
|
Facsimile: 416.863.0871
Attention: Xxx
X. XxXxxxx
|
||
|
(c)
|
at
such other address as the party to which such notice or other
communication is to be given has last notified the party giving
the same
in the manner provided in this Section,
|
|
|
and
if so given shall be deemed to have been given on the date on which
it was
actually received at the address provided herein (if received on
a
business day, if not, the next succeeding business day) and if
sent by
facsimile transmission be deemed to have been given at the time
of actual
receipt of the complete facsimile transmission at the fax number
provided
herein (if actually received prior to 4:30 p.m. (local time at
the point
of receipt) on a business day, if not the next succeeding business
day).
|
||
|
7.14 This
Lock-Up Agreement (together with all other documents and instruments
referred to herein) constitutes the entire agreement between the
parties
with respect to the subject matter hereof and supersedes all other
agreements and undertakings, both written and oral, among the parties
with
respect to the subject matter hereof.
|
||
|
7.15 This
Lock-Up Agreement shall be governed in all respects, including
validity,
interpretation and effect, by the Laws of the Province of British
Columbia
and the federal Laws of Canada applicable therein, without giving
effect
to any principles of conflict of laws thereof which would result
in the
application of the Laws of any other jurisdiction, and all actions
and
proceedings arising out of or relating to this Lock-Up Agreement
shall be
heard and determined exclusively in the courts of the Province
of British
Columbia.
|
||
|
7.16 Unless
otherwise indicated, all dollar amounts referred to in this Lock-Up
Agreement are expressed in Canadian dollars.
|
||
|
7.17 Each
Seller recognizes and acknowledges that this Lock-Up Agreement
is an
integral part of Offeror making the Offer, and that Offeror would
not
contemplate proceeding with making the Offer unless this Lock-Up
Agreement
was entered into by each Seller, and that a breach by a Seller
of any
|
||
-12-
|
covenants
or other commitments contained in this Lock-Up Agreement will cause
Offeror to sustain injury for which it would not have an adequate
remedy
at law for money damages. Therefore, each Seller agrees that,
in the event of any such breach, Offeror shall be entitled to the
remedy
of specific performance of such covenants or commitments and preliminary
and permanent injunctive and other equitable relief in addition
to any
other remedy to which they may be entitled, at law or in equity,
and such
Seller further agrees to waive any requirement for the securing
or posting
of any bond in connection with the obtaining of any such injunctive
or
other equitable relief.
|
__________
-13-
If the foregoing accurately reflects the terms and conditions of our agreement,
would you kindly indicate your acceptance hereof by signing, dating and
returning to the undersigned the enclosed duplicate original of this Lock-Up
Agreement by facsimile or otherwise.
|
CHINA
MINMETALS NON-FERROUS METALS CO. LTD.
|
||||
|
by
|
/s/
Xxxxx Xxxxxxx
|
|||
|
Name: Xx.
Xxxxx Guoping
|
||||
|
Title: Vice
President
|
||||
|
JIANGXI
COPPER COMPANY LIMITED
|
||||
|
by
|
/s/
Zha Kebing
|
|||
|
Name: Xx.
Xxx Kebing
|
||||
|
Title: Deputy
Chief Engineer &Senior Engineer
|
||||
SELLER'S
ACCEPTANCE
Irrevocably
accepted and agreed this 5th day of
December,
2007.
|
Address
for notice:
|
/s/
Xxxx Xxxxx
|
|||
|
Name: Xxxx
Xxxxx
|
||||
|
Registered
Holder
|
Number
of
Shares
|
Number
of
Options
|
Number
of
Bonus
Shares
|
|||
|
Xxxx
Xxxxx
|
5,508,827
|
120,000
|
Nil
|
|||
|
Kestrel
Holdings Ltd.
|
1,812,500
|
Nil
|
Nil
|
