AGREEMENT FOR THE PURCHASE AND SALE OF MINING INTERESTS (Nevada and Utah)
OF
MINING INTERESTS
(Nevada
and Utah)
This
agreement (the “Agreement”) is dated as of May 18, 2007
AMONG:
Rubicon
Minerals Corporation,
a
British Columbia company with an office at Suite 1540 - 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxx, XX, X0X 0X0 (“Rubicon”)
AND:
Rubicon
Nevada Corp.,
a
Nevada corporation with an office at Suite 1540 - 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxx, XX, X0X 0X0 (“Rubicon
U.S.A.”
or
“Buyer”)
AND:
Lexam
Explorations Inc.,
an
Ontario corporation with an office at 00 Xxxxxx Xx. 0xx Xxxxx, Xxxxxxx, Xxxxxxx,
X0X 0X0 (“Lexam”)
AND:
Lexam
Explorations (U.S.A.) Inc.,
a
Colorado corporation with an office at 00 Xxxxxx Xx. 0xx Xxxxx, Xxxxxxx,
Xxxxxxx, X0X 0X0 (“Lexam
U.S.A.”
or
“Seller”)
WHEREAS:
| A. |
Lexam
U.S.A. is an indirect, wholly-owned subsidiary of Lexam, which is a
company listed on the TSX Venture
Exchange.
|
| B. |
Rubicon
U.S.A. is an indirect, wholly-owned subsidiary of Rubicon, which is
a
company listed on the Toronto Stock
Exchange.
|
| C. |
Lexam
U.S.A. is the record owner of the fee simple mineral interests, in
the
percentages stated on Schedule
A,
comprising approximately 225,000 acres in Elko County, State of Nevada
and
Box Elder County, State of Utah all as further described in Schedule
A
(the “Nevada
and Utah Mineral Rights”).
|
| D. |
Pursuant
to a definitive agreement dated as of May 18, 2007, among Rubicon,
Lexam,
Lexam U.S.A., XxXxxx Capital Corporation, Evanachan Limited, Evanachan
(Alaska) Ltd. and Xxxxxx XxXxxx (the “Master
Purchase Agreement”),
Rubicon agreed, inter
alia,
to cause its indirectly wholly-owned subsidiary to purchase the Nevada
and
Utah
|
-1-
| E. |
Mineral
Rights from Lexam U.S.A. pursuant to the terms and conditions contained
therein and the terms and conditions of this
Agreement.
|
NOW,
THEREFORE, for and in consideration of the premises and the mutual covenants
and
warranties contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged, the Parties
agree as follows:
1. DEFINITIONS
| 1.1 |
Definitions:
In this Agreement, unless the context otherwise
requires:
|
| (a) |
“1933 Act”
means the Securities
Act of 1933,
as amended, of the United States.
|
| (b) |
“Affiliates”
has the meaning ascribed thereto in the Securities
Act
(British Columbia).
|
| (c) |
“Agreement”
has the meaning set forth in the introductory
paragraph.
|
| (d) |
“Alaska
Purchase Agreement” means the share purchase agreement dated May 18, 2007
between Evanachan Limited and Rubicon.
|
| (e) |
“Business
Day” means a day on which Canadian chartered banks are open for the
transaction of regular business in the City of Toronto, Ontario and
the
City of Vancouver, British Columbia.
|
| (f) |
“Buyer”
has the meaning set forth in the introductory
paragraph.
|
| (g) |
“Closing”
has the meaning set forth in Section 6.1.
|
| (h) |
“Closing
Date” means the date of Closing, which will occur on or before May 18,
2007, or such other date as the Parties may
agree.
|
| (i) |
“Closing
Time”
means 8 a.m. (Vancouver time) on the Closing Date, or such other time
as
the Parties may agree.
|
| (j) |
“FIRPTA
Certificate” means Foreign Investment in Real Property Tax Act certificate
in the form reasonably acceptable to Buyer, duly executed by the Lexam
USA
for purposes of satisfying Buyer’s obligations under the Internal Revenue
Code Treasury Regulations Section
1.1445-2.
|
| (k) |
“Governmental
Entity” means any federal, state, provincial, municipal, local or other
governmental or public department, ministry, court, commission, board,
bureau or agency, or any subdivision or authority of any of the
foregoing.,
|
| (l) |
“Historical
Data” has
the meaning set forth in Section 5.1(b).
|
-2-
| (m) |
“Knowledge”
of a Party means actual knowledge as of the date of this Agreement
of the
employees of a Party, without any duty of further investigation.
|
| (n) |
“Laws”
means any applicable federal, state, provincial or local statute, rule,
code, regulation, by-law, interpretation, ordinance, judgment or order
of,
or issue of, or issued by, any federal, state, provincial or local
government entity as the context requires.
|
| (o) |
“Legal
Proceeding” means any litigation, action, suit, investigation, hearing,
claim, complaint, grievance, arbitration proceeding or other proceeding
and includes any appeal or review and any application for
same.
|
| (p) |
“Lexam”
has the meaning set forth in the
Recitals.
|
| (q) |
“Lexam
U.S.A.” has the meaning set forth in the
Recitals.
|
| (r) |
“Losses
and Liabilities” means all claims, liabilities, actions, proceedings,
demands, losses, costs, penalties, fines, damages and expenses which
may
be sustained or incurred by any of a Party, its directors, officers,
agents and employees, including reasonable legal fees and disbursements
on
a solicitor and its own client basis.
|
| (s) |
“Master
Purchase Agreement” has the meaning set forth in the
Recitals.
|
| (t) |
“Nevada
and Utah Mineral Rights” has the meaning set forth in the
Recitals.
|
| (u) |
“Parties”
means the Rubicon, Lexam, the Seller and the Buyer and “Party” means any
one of them.
|
| (v) |
“Permitted
Encumbrances” means any limitations or reservations contained in any
patent of the lands subject to the Nevada and Utah Mineral Rights from
the
United States, the State of Nevada, or the State of Utah, any easements
or
rights-of-way of record on or over the lands subject to the Nevada
and
Utah Mineral Rights granted by the owner of the surface estate of the
lands or any predecessor-in-interest of any such owner and any mineral
production royalties of record on the Nevada and Utah Mineral Rights
granted by or reserved by any predecessor-in-interest of Seller as
such
royalties are described in the Mineral Lands Title Review prepared
for
Seller by GIS Land Services.
|
| (w) |
“Purchase
Price Shares” has the meaning set forth in Section 2.2.
|
| (x) |
“Regulations”
means all statutes, laws, rules, orders, directives and regulations
in
effect from time to time and made by governments or governmental agencies
having jurisdiction over the Nevada and Utah Mineral Rights or the
Parties.
|
-3-
| (y) |
“Rubicon”
has the meaning set forth in the introductory
paragraph.
|
| (z) |
“Rubicon
U.S.A.” has the meaning set forth in the introductory paragraph.
|
| (aa) |
“Seller”
has the meanings set forth in the introductory
paragraph.
|
| (bb) |
“Specific
Conveyances” means such quitclaim deeds, deeds, land title transfer forms,
bills of sale and other specific forms and conveyances as are necessary
to
give effect to the transactions contemplated hereby.
|
| (cc) |
“Third
Party” means any individual or entity other than Rubicon, Lexam, the
Seller and the Buyer, or an Affiliate of either Party, including any
partnership, corporation, trust, unincorporated organization, union,
government and any department or agency thereof and any heir, executor,
administrator or other legal representative of an
individual.
|
| (dd) |
“Title
Information” has the meaning set forth in Section 5.1(a).
|
| (ee) |
“Tribunal”
means:
|
| (i) |
any
court (including a court of equity);
|
| (ii) |
any
federal, provincial, state, county, municipal or other government or
governmental department, ministry, commission, board, bureau, agency
or
instrumentality;
|
| (iii) |
any
securities commission, stock exchange or other regulatory or
self-regulatory body;
|
| (iv) |
any
board of trade, chamber of commerce or other business or professional
organization or association;
|
| (v) |
any
arbitrator or arbitration tribunal; and
|
| (vi) |
any
other tribunal,
|
whether
domestic or foreign.
| (ff) |
“U.S.
Person” has the meaning ascribed to it in Regulation S. Without
limiting the foregoing, but for greater clarity in this Agreement,
a U.S.
Person includes, subject to the exclusions set forth in Regulation S,
(i) any
natural person resident in the United States, (ii) any
partnership or corporation organized or incorporated under the laws
of the
United States, (iii) any
estate or trust of which any executor, administrator or trustee is
a U.S.
Person, (iv) any
discretionary or non-discretionary account or similar account (other
than
an estate or trust) held by a dealer or other fiduciary organized,
incorporated, or (if an individual) resident in the United States,
(v) any
agency or branch of a
|
-4-
| (gg) |
foreign
entity located in the United States, and (i) any
partnership or corporation organized or incorporated under the laws
of any
non-U.S. jurisdiction which is formed by a U.S. Person principally
for the
purpose of investing in securities not registered under the 1933 Act,
unless it is organized or incorporated, and owned, by U.S. Accredited
Investors who are not natural persons, estates or
trusts.
|
| 2. |
PURCHASE
AND CONSIDERATION
|
| 2.1 |
Sale
of Nevada and Utah Mineral Rights.
Upon the terms and subject to the conditions of this Agreement, the
Seller
hereby agrees to sell, assign, transfer, convey and set over to the
Buyer,
via quitclaim deed or deeds, without warranty of title, and the Buyer
hereby agrees to purchase from the Seller, at the Closing Time, all
of the
right, title and interest of the Seller in and to the Nevada and Utah
Mineral Rights.
|
| 2.2 |
Purchase
Consideration.
The
purchase consideration for the purchase of all of the Seller’s right,
title and interest in the Nevada and Utah Mineral Rights shall consist
of
8,571,429 common shares of Rubicon (“Purchase Price Shares”) at a deemed
price of $0.70 per share, such consideration to be delivered in accordance
with section 3.1.
|
| 3. |
SHARES
|
| 3.1 |
Distribution
of Shares.
Subject
to regulatory and shareholder approval, Rubicon shall issue the Purchase
Price Shares to the Seller and the Seller shall, at the option of Rubicon,
execute such receipts as Rubicon or its counsel reasonably deem necessary
or required as a condition to receiving the Purchase Price
Shares.
|
| 3.2 |
Resale
Restrictions.
The Seller acknowledges and agrees that the Purchase Price Shares will
be
subject to restrictions on resale imposed by the applicable securities
laws and the Toronto Stock Exchange and that the certificates representing
the Purchase Price Shares may be endorsed with a legend to such effect,
which legend will be in such form as may be required by applicable
securities laws and/or the Toronto Stock Exchange. The Seller agrees
to
comply with such resale restrictions and to file such documents as
may be
required to be filed by the Seller under applicable securities laws
or the
policies of the Toronto Stock Exchange or the American Stock Exchange.
|
| 3.3 |
U.S.
Recipient.
The Seller represents, warrants and covenants to Rubicon
that:
|
| (a) |
the
Seller understands and agrees that the Purchase
Price Shares
have
not been and will not be registered under the 1933 Act, and the
Purchase
Price Shares are
being offered and issued by Rubicon in reliance upon the exemption
from
registration provided by Section 4(2) or Rule 506 of Regulation D under
the 1933 Act;
|
| (b) |
the
Seller has such knowledge and experience in financial and business
matters
as to be capable of evaluating the merits and risks of the investment
and
is able to
|
-5-
| (c) |
bear
the economic risk of loss of the investment within the meaning of Rule
506(b)(2)(ii) of Regulation D under the 1933
Act;
|
| (d) |
the
Seller has had the opportunity to ask questions of and receive answers
from Rubicon regarding the investment, and has received all the
information regarding Rubicon that it has requested;
|
| (e) |
the
Seller is receiving the Purchase Price Shares
for
its own account for investment purposes only and not with a view to
resale
or distribution in the United States;
|
| (f) |
the
Seller has not received the Purchase Price Shares
as
a result of any form of general solicitation or general advertising,
including advertisements, articles, notices or other communications
published in any newspaper, magazine or similar media or broadcast
over
radio, or television, or any seminar or meeting whose attendees have
been
invited by general solicitation or general
advertising;
|
| (g) |
the
Seller understands that if it decides to offer, sell or otherwise transfer
any of the Purchase
Price Shares,
it may not offer, sell or otherwise transfer any of such securities
directly or indirectly, unless:
|
| (i) |
the
sale is to Rubicon;
|
| (ii) |
the
sale is made outside the United States in a transaction meeting the
requirements of Rule 904 of Regulation S under the 1933 Act and in
compliance with applicable local laws and
regulations;
|
| (iii) |
the
sale is made in compliance with the exemption from the registration
requirements under the 1933 Act provided by Rule 144 thereunder, if
available, and in accordance with applicable state securities laws;
or
|
| (iv) |
the
securities are sold in a transaction that does not require registration
under the 1933 Act or any applicable state laws and regulations governing
the offer and sale of securities; and
|
| (v) |
with
respect to subparagraphs (iii) and (iv) hereof, it has prior to such
sale
furnished to Rubicon an opinion of counsel or other evidence of exemption,
in either case reasonably satisfactory to Rubicon;
|
| (h) |
the
Seller understands that upon the issuance thereof, and until such time
as
the same is no longer required under the applicable requirements of
the
1933 Act or applicable U.S. state laws and regulations, the certificates
representing the Purchase Price Shares will
bear a legend in substantially the following
form:
|
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”). THESE
SECURITIES MAY BE OFFERED, SOLD,
-6-
-
-
PLEDGED
OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE THE UNITED STATES
IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT, (C) IN
COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
1933
ACT PROVIDED BY RULE 144 THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE
REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE LAWS AND REGULATIONS
GOVERNING THE OFFER AND SALE OF SECURITIES, AND WITH RESPECT TO SUBPARAGRAPHS
(C) AND (D) HEREOF, THE HOLDER HAS, PRIOR TO SUCH SALE, FURNISHED TO THE COMPANY
AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE REASONABLY
SATISFACTORY TO THE COMPANY.”
| (i) |
if
required by applicable securities legislation, policy or order or by
any
securities commission, stock exchange or other regulatory authority,
the
Seller will execute, deliver, file and otherwise assist Rubicon in
filing
such reports, undertakings and other documents with respect to the
issue
of the Purchase Price Shares as may be
required;
|
| (j) |
the
Seller understands that Rubicon may instruct its transfer agent not
to
record any transfer of Purchase Price Shares
without
first being notified by Rubicon that it is satisfied that such transfer
is
exempt from or not subject to the registration requirements of the
1933
Act; and
|
| (k) |
it
consents to Rubicon making a notation on its records or giving instruction
to the registrar and transfer agent of the Company in order to implement
the restrictions on transfer set forth and described herein.
|
| 4. |
TITLE
|
| 4.1 |
Transfer
of Nevada and Utah Mineral Rights.
The Seller will assist the Buyer where required in its dealings with
the
Governmental Entities to cause the transfer of the Nevada and Utah
Mineral
Rights to the Buyer or to a directly or indirectly wholly-owned subsidiary
of Rubicon as Rubicon may direct following the Closing Time.
|
| 4.2 |
Registration
of Specific Conveyances.
The Buyer will bear all costs, fees and deposits of every nature and
kind
incurred (whether by the Seller or the Buyer) in recording any Specific
Conveyances and recording any further assurances required to convey
the
Nevada and Utah Mineral Rights to the Buyer.
|
| 4.3 |
Transfer
of Existing Permits.
The Seller will use commercially reasonable efforts to assist the Buyer
to
cause the transfer of any permits issued by Governmental Entities (other
than those reasonably required by the Seller (in its sole discretion)
to
the Buyer for ongoing remediation work) held by the Seller in connection
with the Nevada and Utah Mineral Rights.
|
| 4.4 |
Transfer
Taxes.
The Buyer will be solely liable for any and all land transfer, sales
and
similar taxes imposed by any Government Entity in respect of the purchase
of the Nevada
|
-7-
| 4.5 |
and
Utah Mineral Rights pursuant hereto including, but not limited to,
mineral
land tax and land transfer tax, where applicable. If the Seller, as
agent
for any Governmental Entity, is required to collect such taxes, the
Buyer
will pay the aggregate amount of such taxes to the Seller at the time
such
interest is transferred to Rubicon. The Seller will remit such amount
to
the appropriate authorities in accordance with applicable legislation.
The
Buyer agrees to indemnify and forever hold the Seller harmless from
and
against any Losses and Liabilities in connection with the re-assessment
or
non-payment of such taxes.
|
| 5. |
DATA
AND TITLE INFORMATION
|
| 5.1 |
Data
and Title Information.
|
| (a) |
On
or before the Closing Time, Lexam and the Seller shall deliver to Rubicon
all title information in Lexam’s and Seller’s possession or control
relating to the Nevada and Utah Mineral Rights (or copies thereof)
which
are in Lexam’s or the Seller’s possession or control, including the
complete report and supporting documentation prepared by a Registered
Professional Xxxxxxx (G.I.S. Land Services) including maps, copies
of
deeds, spreadsheets, title reports, summaries, title abstracts, and
other
information (“Title Information”).
|
| (b) |
On
or before the Closing Time, Lexam and the Seller shall deliver to Rubicon
all drill core, geological, geophysical, and engineering data and maps,
logs of drill holes, information, results of assaying and sampling,
reports (both factual and interpretive) and similar data relating to
the
Nevada and Utah Mineral Rights (or copies thereof) which are in Lexam’s or
the Seller’s possession or control (“Historical Data”).
|
| (c) |
Lexam
and the Seller make no representation or warranty as to the accuracy
of
the Historical Data or Title Information provided to Rubicon by Lexam
and
the Seller under sections 5.1(a) and 5.1(b), and shall not be liable
on
account of any use by Buyer or any other person of the Historical Data
or
Title Information.
|
| 5.2 |
Confidentiality.
Until the Closing Time, all information provided by Lexam and the Seller
to Rubicon under sections 5.1 (a) and 5.1(b) shall be kept strictly
confidential by Rubicon and shall not be released to any Third Party
except with the prior written consent of Lexam.
|
| 5.3 |
Covenants
by Lexam.
Until the Closing Time, Lexam shall cause the Seller to use all
commercially reasonable efforts to conduct its affairs in respect of
the
Nevada and Utah Mineral Rights in the ordinary course of business
consistent with their respective past practices so as to preserve the
value of the Nevada and Utah Mineral Rights for the Buyer.
|
-8-
| 5.4 |
Closing
|
| 5.5 |
Closing.
The consummation of the purchase of the Nevada and Utah Mineral Rights,
including the delivery of the Specific Conveyances, the FIRPTA
Certificate, and all other documents required hereby and the final
payment
by Rubicon of the Purchase Price Shares (“Closing”) shall occur at the
Closing Time. At the Closing, the parties shall deliver the documents
and
instruments and take the actions described in this Part 6 at the offices
of Xxxxx & Company LLP in Vancouver, British
Columbia.
|
| 5.6 |
Lexam’s
and the Seller’s Documents.
At the Closing, Lexam and the Seller shall deliver and table the
following:
|
| (a) |
certified
copies of:
|
| (i) |
a
resolution of the board of directors of each of Lexam and the Seller
approving the entering into of this Agreement and completion of all
transactions contemplated hereunder;
|
| (ii) |
a
resolution of the shareholders of each of Lexam Explorations Corp.
of
America Inc. and the Seller approving the entering into of this Agreement
and completion of any transactions contemplated hereunder, where such
matters are required to be voted upon by shareholders by Laws or under
the
constating documents of Lexam and the Seller, as applicable, or where
such
matters have otherwise been put to a vote of shareholders; and
|
| (iii) |
all
other instruments evidencing necessary action of Lexam and the Seller
and
authorizations, if any, with respect to such matters;
|
| (b) |
a
certificate of status, compliance, good standing or like certificate
issued by the corporate registries of incorporation or continuance
for
each of Lexam and the Seller;
|
| (c) |
the
required Specific Conveyances duly executed by the Seller;
|
| (d) |
copies
of all required Third Party consents and approvals to the transfer
of the
Nevada and Utah Mineral Rights to the Buyer, if any;
|
| (e) |
a
certificate of a senior officer of each of Lexam and the Seller confirming
that the representations and warranties set forth in Section 7.1 are
true
on the Closing Date with respect to Lexam and the Seller, as the case
may
be, and that Lexam and the Seller, as the case may be, has performed
all
obligations and agreements and complied with all covenants and conditions
contained in this Agreement to be performed or complied with by it
at or
prior to the Closing Date;
|
| (f) |
the
FIRPTA Certificate; and
|
-9-
| (g) |
such
other items as may be specifically requested prior to the Closing Time
by
Rubicon, acting reasonably.
|
| 5.7 |
Rubicon’s
Documents.
At the Closing, Rubicon and the Buyer will deliver and table the
following:
|
| (a) |
duly
authorized share certificates representing the Purchase Price Shares;
|
| (b) |
copies,
certified by a senior officer of Rubicon, of:
|
| (i) |
resolutions
of the board of directors of Rubicon and the Buyer approving the entering
into of this Agreement and approving the execution of all other documents
and agreements required hereby and the completion of all transactions
contemplated hereunder;
|
| (ii) |
resolutions
of the board of directors of Rubicon allotting and issuing the Purchase
Price Shares hereunder;
|
| (iii) |
resolutions
of the shareholders of Rubicon approving the purchase of the Nevada
and
Utah Mineral Rights by Rubicon and the Buyer and the issuance of the
Purchase Price Shares; and
|
| (iv) |
all
other instruments evidencing necessary action of Rubicon and the Buyer
and
of authorizations, if any, with respect to such matters;
|
| (c) |
a
certificate of status, compliance, good standing or like certificate
with
respect to Rubicon and the Buyer issued by the Registrar of Companies
(British Columbia) or other applicable Governmental Entity, as the
case
may be;
|
| (d) |
a
certificate of a senior officer of Rubicon and the Buyer confirming
that
the representations and warranties set forth in Section 7.2 are true
at
the Closing Date and that Rubicon has performed all obligations and
agreements and complied with all covenants and conditions contained
in
this Agreement to be performed or complied with by it at or prior to
the
Closing Date; and
|
| (e) |
such
other items as may be specifically requested prior to the Closing Time
by
Lexam and the Seller, acting reasonably.
|
| 6. |
REPRESENTATIONS
AND WARRANTIES
|
| 6.1 |
Lexam’s
Representations and Warranties.
Lexam represents and warrants to Rubicon with respect to itself, the
Seller and the Nevada and Utah Mineral Rights (to the extent it holds
an
interest in them) and acknowledges that the Buyer is relying thereon
that:
|
| (a) |
Each
of Lexam and the Seller has full power and absolute authority and capacity
to enter into this Agreement and to carry out the
transactions
|
-10-
| (b) |
contemplated
hereby. Each of Lexam and the Seller has obtained all corporate,
shareholder and regulatory authorizations required, if any, for the
execution, delivery and performance of this Agreement and such execution,
delivery and performance and the consummation of the transactions herein
contemplated will not conflict with, or accelerate the performance
required by or result in any breach of any covenants or agreements
contained in or constitute a default under, or result in the creation
of
any encumbrance, lien or charge under the provisions of its organizational
documents or any shareholders’ or shareholders’ resolution, indenture,
agreement or other instrument whatsoever to which it is a party or
by
which it is bound or to which it may be subject and will not contravene
any applicable Laws.
|
| (c) |
Lexam
U.S.A. is the record owner of the Nevada and Utah Mineral Rights as
stated
in Part I of Schedule A, and has all right, full power and lawful
authority to assign, convey and sell the Nevada and Utah Mineral Rights.
The Nevada and Utah Mineral Rights are free and clear of all claims,
encumbrances (other than Permitted Encumbrances), liens and security
interests, except as disclosed to Rubicon and the Buyer in the Title
Information.
|
| (d) |
To
the Knowledge of Lexam and the Seller, there are no adverse claims
or
challenges against or to the Seller’s ownership of or title to the Nevada
and Utah Mineral Rights or any portion thereof, nor is there any basis
therefor that would materially and adversely affect the value of the
Nevada and Utah Mineral Rights except as stated in Part II of Schedule
A
or in the Title Information.
|
| (e) |
There
are no outstanding agreements or options granted by Lexam or the Seller
to
any Third Party to acquire or purchase the Nevada and Utah Mineral
Rights
or any portion thereof or interest
therein.
|
| (f) |
To
the Seller’s knowledge, no person has any royalty or other interest
whatsoever in production or profits from the Nevada and Utah Mineral
Interests or any portion thereof, except as stated in Part III of Schedule
A.
|
| (g) |
No
surface activities have been conducted by Lexam or the Seller on the
Nevada and Utah Mineral Rights that have resulted in unreclaimed surface
disturbances subject to reclamation and rehabilitation obligations
and
that such surface activities, if any, have been properly completed
in
compliance with all applicable Laws.
|
| (h) |
There
are no Legal Proceedings (whether or not purportedly on behalf of Lexam
or
the Seller) in progress or, to the knowledge of Lexam or the Seller,
pending, threatened against or affecting Lexam or the Seller or relating
to the Nevada and Utah Mineral Rights at law or in equity or before
or by
any Tribunal, which Legal Proceeding involves the possibility of any
judgment or other liability of Lexam or the Seller or would adversely
affect the title of Lexam or the Seller
to
|
-11-
| (i) |
the
Nevada and Utah Mineral Rights or would enjoin, restrict, or prohibit
or
would have the effect of preventing the completion of the transactions
contemplated herein or the use, enjoyment or quiet possession of the
Nevada and Utah Mineral Rights or which might adversely affect the
ability
of Lexam or the Seller to enter into this Agreement and perform their
obligations hereunder. To the best of the knowledge and belief of Lexam
and the Seller there are no grounds on which any such Legal Proceeding
might be commenced with any reasonable likelihood of
success.
|
| (j) |
Neither
Lexam nor the Seller has received, nor is aware of (except as have
been
specifically disclosed by the Seller in Schedule B attached
hereto):
|
| (i) |
any
orders or directives issued by a Governmental Entity under any statute,
law, rule, order or regulation which relate to environmental matters
and
which require any work, repairs, construction or capital expenditures
with
respect to the Nevada and Utah Mineral Rights, where such orders or
directives have not been complied with in all material respects; or
|
| (ii) |
any
demand or notice issued by a Governmental Entity under any statute,
law,
rule, order or regulation with respect to the breach of any environmental,
health or safety law applicable to the Nevada and Utah Mineral Rights,
including any statute, law, rule, order or regulation respecting the
use,
storage, treatment, transportation or disposition of environmental
contaminants, which demand or notice remains outstanding at the date
hereof.
|
| 6.2 |
Rubicon’s
Representations and Warranties.
Rubicon represents and warrants to Lexam and the Seller with respect
to
itself and the Buyer and acknowledges that each of Lexam and the Seller
is
relying thereon that:
|
| (a) |
Each
of Rubicon and the Buyer is a company duly incorporated and validly
subsisting and is in good standing under the laws of the Province of
British Columbia, Canada, and the laws of the State of Nevada,
respectively.
|
| (b) |
Each
of Rubicon and the Buyer has full power and absolute authority and
capacity to enter into this Agreement and to carry out the transactions
contemplated hereby except where regulatory approval is
required.
|
| (c) |
Each
of Rubicon and the Buyer has, or will by Closing Time have, duly obtained
all corporate, shareholder and regulatory authorizations for the
execution, delivery and performance of this Agreement and such execution,
delivery and performance and the consummation of the transactions herein
contemplated will not conflict with, or accelerate the performance
required by or result in any breach of any covenants or agreements
contained in or constitute a default under, or result in the creation
of
any encumbrance, lien or
|
-12-
| (d) |
charge
under the provisions of its constating documents or any shareholders'
or
directors' resolution, indenture, agreement or other instrument whatsoever
to which it is a party or by which it is bound or to which it may be
subject and will not contravene any applicable
Law.
|
| (e) |
Rubicon
is a reporting issuer or the equivalent under the securities legislation
of the provinces of British Columbia, Alberta, Ontario and Quebec,
and is
not in default of any material requirement of securities or corporate
laws, regulations, orders, notices and
policies.
|
| (f) |
The
issued and outstanding common shares of Rubicon are listed and posted
for
trading on the Toronto Stock Exchange and the American Stock Exchange
and
Rubicon is not in default of any of the requirements, rules or policies
of
the Toronto Stock Exchange or the American Stock
Exchange.
|
| (g) |
Upon
the issuance thereof to the Seller, the Purchase Price Shares will
have
been duly and validly authorized, allotted and issued to the Seller
and
will be outstanding as fully paid and non-assessable and not subject
to
any encumbrances arising by, through or under Rubicon or any restrictions
on transfer other than pursuant to applicable securities laws and will
be
listed and posted for trading on the Toronto Stock Exchange and the
American Stock Exchange, subject to the resale restrictions referred
to in
Section 3.2.
|
| (h) |
Other
than any approvals, consents or acceptances which are preconditions
to the
Closing, no approvals, consents or acceptances are required to be obtained
by the Buyer to permit the purchase of the Nevada and Utah Mineral
Rights,
the issuance of the Purchase Price Shares and the other transactions
contemplated by this Agreement.
|
| (i) |
Except
as specifically contemplated in this Agreement, no person has any
agreement or option or any right or privilege (whether by law, preemptive
or contractual) capable of becoming an agreement, including convertible
securities, warrants or convertible obligations of any nature, for
the
purchase, subscription, allotment or issuance of any of the Purchase
Price
Shares.
|
| (j) |
Rubicon
has filed all documents it has been required to file with the Canadian
securities regulatory authorities and the Toronto Stock Exchange, and
at
the time filed, and as of the date hereof, such documents did not and
do
not, as the case may be, contain any untrue statement of a material
fact
or omit to state a material fact required to be stated to make the
statements therein in light of the circumstances in which they were
made
not misleading.
|
| (k) |
The
performance of this Agreement will not:
|
| (i) |
conflict
with, or result in the breach of, or constitute a default under, any
agreement, arrangement or instrument to which the Buyer, Rubicon
or
|
-13-
| (ii) |
any
of their subsidiaries are a party, including without limitation their
constating documents or any encumbrance, Permitted Encumbrance, lease,
contract, order, judgment, regulation or other restriction or obligation
of any kind by which the Buyer, Rubicon or any of their subsidiaries
or
any of their respective assets are bound;
|
| (iii) |
contravene
or conflict with any laws or regulations binding upon or applicable
to
Rubicon or the Buyer or any of their
subsidiaries;
|
| (iv) |
relieve
any person from any obligation to Rubicon or the Buyer or any of their
subsidiaries (whether contractual or otherwise) or enable any person
to
terminate any such obligation or any right or benefit enjoyed by Rubicon,
the Buyer or any of their subsidiaries or to exercise any right in
respect
of Rubicon, the Buyer or any of their subsidiaries;
or
|
| (v) |
result
in the creation, imposition or enforcement of any encumbrance on or
over
any of the assets or undertakings of Rubicon or the Buyer or any of
their
subsidiaries or result in any present or future indebtedness of Rubicon,
the Buyer or any of their subsidiaries becoming due and payable prior
to
its stated maturity.
|
| 6.3 |
Representations
at Closing.
The representations and warranties of the Parties shall continue to
be
true, accurate and not misleading up to and including the Closing Date
with reference to the facts and circumstances then
existing.
|
| 7. |
CONDITIONS
ON PURCHASE AND SALE
|
| 7.1 |
Lexam’s
and the Seller’s Conditions.
The obligation of each of Lexam and the Seller under this Agreement
to
consummate the transactions contemplated hereby is, at the option of
each
of Lexam and the Seller, subject to the following
conditions:
|
| (a) |
All
necessary shareholder, securities and regulatory approvals and acceptances
and all material Third Party consents required to be obtained by Lexam,
the Seller, Rubicon and the Buyer have been
obtained.
|
| (b) |
All
instruments and documents required to carry out the terms of this
Agreement and to consummate the transactions contemplated hereby are
in
form and substance satisfactory to Lexam and the Seller, acting
reasonably, and executed and delivered by Rubicon and the Buyer and
such
other Third Parties as may be required.
|
| (c) |
There
has not occurred any material adverse changes in the business, affairs
or
financial condition of Rubicon except as may result from transactions
contemplated by this Agreement.
|
-14-
| (d) |
All
of the items referred to in Section 6.3 have been completed or delivered
by Rubicon.
|
| (e) |
The
conditions in favour of Lexam and the Seller provided in the Master
Purchase Agreement shall have been satisfied or waived, as the case
may
be.
|
| (f) |
The
transactions contemplated pursuant to the Alaska Purchase Agreement
shall
have closed, or shall concurrently close with the transactions
contemplated in this Agreement.
|
| 7.2 |
Rubicon’s
and the Buyer’s Conditions.
The obligation of each of Rubicon and the Buyer under this Agreement
to
consummate the transactions contemplated hereby is, at the option of
each
of Rubicon and the Buyer, subject to the following
conditions:
|
| (a) |
All
shareholder, securities and regulatory approvals and acceptances and
all
material Third Party consents required to be obtained by Rubicon, the
Buyer, Lexam and the Seller have been
obtained.
|
| (b) |
All
instruments and documents required to carry out the terms of this
Agreement and to consummate the transactions contemplated hereby will
be
in form and substance satisfactory to each of Rubicon and the Buyer,
acting reasonably, and executed and delivered by Lexam and the Seller
and
such other Third Parties as may be required.
|
| (c) |
There
has not occurred any material adverse changes in the status of the
Nevada
and Utah Mineral Rights which, in the Rubicon’s reasonable opinion, would
materially and adversely affect the value of the Nevada and Utah Mineral
Rights, other than as consented to in writing by Rubicon and the Buyer.
|
| (d) |
The
Seller has, in the sole opinion of each of Rubicon and the Buyer, acting
reasonably, title to the fee mineral lands and patented mining claims
which constitute part of the Nevada and Utah Mineral Rights free and
clear
of all claims, liens, security interests and encumbrances except for
Permitted Encumbrances or as disclosed to Rubicon and the Buyer in
the
Title Information.
|
| (e) |
All
of the items referred to in Section 6.2 hereof have been completed
or
delivered by Lexam and the Seller.
|
| (f) |
The
conditions in favour of Rubicon provided in the Master Purchase Agreement
shall have been satisfied or waived, as the case may be.
|
| (g) |
The
transactions contemplated pursuant to the Alaska Purchase Agreement
shall
have closed, or shall concurrently close with the transactions
contemplated in this Agreement.
|
-15-
-16-
| (h) |
Survival
of Representations and Warranties
|
7.3 Survival
of Representations and Warranties. The
representations and warranties of Rubicon, the Buyer, Lexam and the Seller
in
this Agreement shall survive Closing and the issuance of the Purchase Price
Shares and shall continue in full force and effect for a period of
two years from the Closing Date except that:
| (a) |
the
representations and warranties of the Seller with respect to environmental
issues contained in paragraph 7.1(f) shall remain in full force and
effect for a period of 3 years from the Closing
Date.
|
7.4 Indemnification
of Rubicon and the Buyer. Each
of Lexam and the Seller covenants and agrees to indemnify and hold harmless
Rubicon and the Buyer and their respective Affiliates or Associates from and
against any losses, costs, damages, liabilities and fees (including, without
limitation, reasonable legal fees) suffered or incurred as a result of, or
arising out of:
| (a) |
any
of the material representations or warranties of the Lexam or the Seller
in this Agreement being untrue, inaccurate or misleading;
or
|
| (b) |
a
breach of any material covenant, term or agreement made in this Agreement
by the Lexam or the Seller;
|
(which
losses, costs, damages, liabilities and fees are collectively referred to as
“Rubicon and Buyer’s Losses”).
7.5 Indemnification
of Lexam and the Seller. Each
of Rubicon and the Buyer covenants and agrees to indemnify and hold harmless
Lexam and the Seller from and against any losses, costs, damages, liabilities
and fees (including, without limitation, reasonable legal fees) suffered or
incurred as a result of, or arising out of:
| (a) |
any
of the material representations or warranties of Rubicon or the Buyer
in
this Agreement being untrue, inaccurate or misleading;
or
|
| (b) |
a
breach of any covenant, term or agreement made in this Agreement by
Rubicon or the Buyer.
|
(which
losses, costs, damages, liabilities and fees are collectively referred to as
“Lexam and Seller’s Losses”).
7.6 Limitations
on Lexam and Seller’s Liability. Lexam
and the Seller shall not be liable under the indemnity provision in
paragraph 9.2 in respect of any claim unless:
| (a) |
written
notice of the claim providing reasonable details of the alleged Rubicon
and Buyer’s Losses has been provided to each of Lexam and the Seller on or
before the expiry dates specified in paragraph 9.1;
and
|
-17-
| (b) |
the
aggregate of the Rubicon and Buyer’s Losses exceeds the sum of $5,000 (in
which event, Lexam and the Seller shall be jointly and severally liable
for the whole amount of such Rubicon and Buyer’s Losses and not only the
excess over such amount).
|
7.7 Limitations
on Rubicon’s and Buyer’s Liability. Each
of Rubicon and the Buyer shall not be liable under the indemnity provision
in
paragraph 9.3 in respect of any claim unless:
| (a) |
written
notice of the claim providing reasonable details of the alleged Lexam
and
Seller’s Losses has been provided to each of Rubicon and the Buyer within
2 years of the Closing Date; and
|
| (b) |
the
aggregate of Lexam and the Seller’s Losses exceeds the sum of $5,000 (in
which event, Rubicon and the Buyer shall be jointly and severally liable
for the whole amount of such Lexam and Seller’s Losses and not only the
excess over such amount).
|
| 8. |
MISCELLANEOUS
|
| 8.1 |
Notices. Any
notice or communication required or permitted to be given under this
Agreement shall be in writing and shall be considered to have been
sufficiently given if delivered by hand, transmitted by facsimile
transmission or mailed by prepaid registered post in Canada to the
address
or facsimile transmission number of each party set out
below:
|
if
to
Rubicon or the Buyer:
Rubicon
Minerals Corporation
Suite
1540 - 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx,
X.X.
X0X
0X0
Attention: Xxxxx
X. Xxxxxxx
Fax
No: 000-000-0000
if
to
Lexam or the Seller:
Lexam
Explorations Inc.
00
Xxxxxx
Xxxxxx
0xx
Xxxxx
Xxxxxxx,
Xxxxxxx
X0X 0X0
Attention: Xxxxxx
XxXxxx
Fax
No: 000-000-0000
-18-
-
-
or
to
such other address or facsimile transmission number as any party may, from
time
to time, designate in the manner set out above. Any such notice or communication
shall be considered to have been received:
| (a) |
if
delivered by hand during business hours on a Business Day, upon receipt
by
a responsible representative of the receiver, and if not delivered
during
business hours, upon the commencement of business hours on the next
Business Day;
|
| (b) |
if
sent by facsimile transmission during business hours on a Business
Day,
upon the sender receiving confirmation of the transmission, and if
not
transmitted during business hours, upon the commencement of business
hours
on the next Business Day following confirmation of the transmission;
and
|
if
mailed
by prepaid registered post in Canada, upon the fifth Business Day following
posting; except that, in the case of a disruption or an impending or threatened
disruption in postal services every notice or communication shall be delivered
by hand or sent by facsimile transmission.
| 8.2 |
Governing
Law; Jurisdiction.
This Agreement shall be governed by and interpreted in accordance with
the
Laws of the Province of British Columbia and the federal laws of Canada
applicable therein. The Parties hereby consent to the non-exclusive
jurisdiction of the courts located in the Province of British Columbia
in
connection with any controversy related to this Agreement and waive
any
argument that venue in any such forum is not convenient.
|
| 8.3 |
Time
of Essence.
Time shall be of the essence of this
Agreement.
|
| 8.4 |
Binding.
This Agreement shall enure to the benefit of and be binding upon the
Parties hereto and their respective successors, permitted assigns,
heirs,
administrators and legal representatives.
|
| 8.5 |
Unenforceability
of Provisions.
If any one or more of the provisions contained herein should be held
to be
invalid, unenforceable or illegal in any respect in any jurisdiction,
the
validity, legality and enforceability of such provision shall not in
any
way be affected or impaired thereby in any other jurisdiction and the
validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired
thereby.
|
| 8.6 |
Counterparts.
This Agreement may be executed in counterparts which may be delivered
by
facsimile. Each executed counterpart shall be deemed to be an original
and
all such counterparts when read together constitute one and the same
instrument.
|
| 8.7 |
Regulatory
Approval.
This Agreement is subject to regulatory
approval.
|
-19-
| 8.8 |
Public
Disclosure of Agreement and Seller.
Lexam and the Seller hereby consent to the filing by Rubicon of this
Agreement on the System for Electronic Document Analysis and Retrieval
(SEDAR) Internet website of the Canadian Securities Administrators
and the
Electronic Data Gathering, Analysis, and Retrieval system Internet
website
of the U.S. Securities & Exchange Commission and the identification of
Lexam and the Seller in news releases and other continuous disclosure
documents of Rubicon where required to comply with the Laws of Canada
and
the United States and the policies of the Toronto Stock Exchange and
the
American Stock Exchange.
|
| 8.9 |
Public
Disclosure of Agreement and Buyer.
Rubicon and the Buyer hereby consent to the filing by Lexam of this
Agreement on the System for Electronic Document Analysis and Retrieval
(SEDAR) Internet website of the Canadian Securities Administrators
and the
Electronic Data Gathering, Analysis, and Retrieval system Internet
website
of the U.S. Securities & Exchange Commission and the identification of
Rubicon and the Buyer in news releases and other continuous disclosure
documents of Lexam where required to comply with the Laws of Canada
and
the United States and the policies of the Toronto Stock Exchange and
the
American Stock Exchange.
|
| 8.10 |
Further
Assurance.
At the request of any Party, the Parties shall take such reasonable
actions, and execute and deliver any further instruments, agreements,
documents or other papers reasonably requested by any Party to effect
the
purposes of this Agreement and the transactions contemplated
hereby.
|
[Remainder
of Page Intentional Left Blank]
-20-
-
-
IN
WITNESS WHEREOF the Parties hereto have executed this Agreement as of the
Effective Date.
|
LEXAM
EXPLORATIONS INC.
By: “Xxxxxx
XxXxxx”
Authorized
Signatory
Dated:
|
|
LEXAM
EXPLORATIONS (U.S.A.) INC.
By: “Xxxxxx
XxXxxx”
Authorized
Signatory
Dated:
|
|
RUBICON
MINERALS CORPORATION
By: “Xxxxx
Xxxxxxx”
Authorized
Signatory
Dated:
|
|
RUBICON
NEVADA CORP.
By: “Xxxxx
Xxxxxxx”
Authorized
Signatory
Dated:
|
Xxxxx:1837566.7
-21-
-
-
SCHEDULE
A
TO
OF
MINING INTERESTS
NEVADA
AND UTAH MINERAL RIGHTS
see
attached
Part
I
- Nevada and Utah Mineral Rights s. 7.1(b)
Part
II - Adverse Claims or Challenges against Title s. 7.1(c)
Part
III - Production and Profits Royalties s. 7.1(e)
Xxxxx:1837566.7 Schedule
A - Page
-
-
SCHEDULE
B
TO
OF
MINING INTERESTS
environmental
disclosure s.
7.1(g)
NIL
