EXHIBIT 4.15
Share Purchase Agreement, dated July 25, 2005 among
Baradero Resources Limited, the
shareholders of 0724000 BC Ltd.
and 0724000 BC Ltd.
SHARE PURCHASE AGREEMENT
THIS AGREEMENT is dated the 25th day of July , 2005,
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AMONG:
BARADERO RESOURCES LTD., a company continued under the laws of British
Columbia and having an office at Xxxxx 0000, 0000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, XX X0X 0X0
(the "PURCHASER")
AND:
XXXX XXXXXXXX, having an address at _______________________
("XXXXXXXX")
AND:
XXXX XXXXXXXXX, having an address at ______________________
("XXXXXXXXX")
AND:
XXXX XXXXXX, having an address at ____________________________
("XXXXXX")
AND:
XXXX XXXXX, having an address at __________________________
("XXXXX")
AND:
XXXXXXX XXXXXXXX, having an address at ___________________
("BOTTOMER")
AND:
XXXXX XXXXXX, having an address at __________________________
("XXXXXX")
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AND:
XXXXX XXXXXXXXXX, having an address at ____________________
("XXXXXXXXXX")
AND:
CENTRASIA MINING CORP., a company continued under the laws of British
Columbia and having an office at 000 - 0000 X. Xxxxxxxx Xx.,
Xxxxxxxxx, XX X0X 0X0
(the "COMPANY")
NOW THEREFORE in consideration of the mutual covenants herein contained and for
other good and valuable consideration mutually given and received, the receipt
and sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Wherever used in this Agreement, unless there is something in the subject matter
or context inconsistent therewith, the following words and terms will have the
meanings respectively given them:
(a) "ACQUISITION SHARES" means the Purchaser's Shares to be issued
hereunder to the Centrasia Shareholders in exchange for the
Centrasia Shares pursuant to Section 2.1;
(b) "ACTION" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation of any kind or manner whatsoever
by or before any Governmental Authority;
(c) "AFFILIATE" means a Person or entity where: (i) one of them is
the Subsidiary of the other, or (ii) each of them is
Controlled by the same Person;
(d) "AGREEMENT" means this share purchase agreement and the
schedules attached hereto, as amended, supplemented or
restated from time to time in accordance with its terms;
(e) "APPLICABLE LAWS" means, with respect to any Person, any
national or foreign federal, state, provincial or local Laws,
ordinance, regulation, rule, code, order, other requirement or
rule of law or stock exchange rule applicable to such Person
or any of its respective properties, assets, officers,
directors, employees, independent contractors, consultants or
agents;
(f) "ASSOCIATE" means, if used to indicate a relationship with any
Person,
(i) a partner, other than a limited partner, of that Person,
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(ii) a trust or estate in which that Person has a substantial
beneficial interest or for which that Person serves as
trustee or in a similar capacity,
(iii) an issuer in respect of which that Person beneficially
owns or Controls, directly or indirectly, voting
securities carrying more than 10% of the voting rights
attached to all outstanding voting securities of the
issuer, or
(iv) a relative, including the spouse, of that Person or a
relative of that Person's spouse, if the relative has
the same home as that Person;
(g) "BARADERO FINANCIAL STATEMENTS" means, collectively, the
audited financial statements of the Purchaser, and the
unaudited financial statements of the Purchaser, copies of
which are attached hereto as Schedule 5.17;
(h) "BARADERO MATERIAL CONTRACTS" means those subsisting material
commitments, contracts, instruments, leases and other
agreements, oral or written, entered into by Baradero by which
it is bound or to which any of its assets are subject;
(i) "BCBCA" means the BUSINESS CORPORATIONS ACT (British
Columbia), as amended from time to time;
(j) "BMC" means Bulakashu Mining Company LLC, a company
incorporated under the laws of the Kyrgyz Republic and the
owner of the exploration licence for the Bulakashu Property as
described in the Original Bulakashu Option Agreement;
(k) "BULAKASHU PROPERTY" means the property in the Bulakashu area
of the Kyrgyz Republic to which BMC holds the exploration
licence described in the Original Bulakashu Option Agreement;
(l) "CENTRASIA FINANCIAL STATEMENTS" means the audited financial
statements of the Company for the ten months ended March 31,
2005 and the period from February 4, 2004 (incorporation) to
May 31, 2004, a copy of which are attached hereto as Schedule
3.18;
(m) "CENTRASIA MATERIAL CONTRACTS" means those subsisting material
commitments, contracts, instruments, leases and other
agreements, oral or written, entered into by Centrasia by
which it is bound or to which any of its assets are subject;
(n) "CENTRASIA SHAREHOLDERS" means the holders of all of the
Centrasia Shares as set out in Schedule 3.2;
(o) "CENTRASIA SHARES" means collectively all of the issued and
outstanding common shares of the Company as of the Closing;
(p) "CLOSING" means the closing of the purchase and sale of the
Centrasia Shares pursuant to this Agreement;
(q) "CLOSING DATE" means August 31, 2005 or such other date as the
Company, the Centrasia Shareholders and the Purchaser may
agree;
(r) "CONSTATING DOCUMENTS" means the articles, articles of
incorporation, notice of articles, memorandum, by-laws and any
other similar document of an incorporated entity together with
any amendment thereto or replacement thereof;
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(s) "CONTROL", "CONTROLS" or "CONTROLLED" means a situation where
a Person or Persons acting in concert hold, directly or
indirectly, legally or beneficially (other than for security
interest only), issued and outstanding shares of a company
carrying more than 50% of the voting rights that may be cast
for the election of directors;
(t) "DEBT SETTLEMENT AGREEMENTS" has the meaning set out in
Section 2.2;
(u) "GAAP" means those accounting principles, consistently
applied, which are recognized as being generally accepted in
Canada from time to time as set forth in the Handbook
published by The Canadian Institute of Chartered Accountants;
(v) "GOVERNMENTAL AUTHORITY" means any Canadian or foreign
federal, state, provincial or local governmental, regulatory
or administrative authority, agency or commission or any
court, tribunal or judicial or arbitral body;
(w) "GOVERNMENTAL ORDER" means any order, writ, judgment,
injunction, decree, stipulation, determination or award issued
or entered by or with any Governmental Authority;
(x) "LAWS" means any Canadian or foreign, federal, state,
provincial or local law, ordinance, regulation, rule, code,
Order, Governmental Order, other requirement or rule of law or
stock exchange rule, including any judicial or administrative
interpretation thereof;
(y) "LENDERS" means the Persons listed on Schedule 2.2 attached
hereto who have provided and will continue to provide bridge
financing to the Company until the Closing Date;
(z) "LIABILITIES" means any and all debts, trade accounts,
liabilities and obligations, whether accrued or fixed,
absolute or contingent, matured or unmatured or determined or
undeterminable, including, without limitation, those arising
under any Law, Action, Order or Governmental Order and those
arising under any contract, agreement, arrangement, commitment
or undertaking or otherwise, including, without limitation,
arising directly or indirectly under or pursuant to any loan,
credit agreement, loan or credit facility transaction or
arrangement or any off-balance sheet transaction or
arrangement;
(aa) "LIEN" means any encumbrance of any nature or kind whatever
and includes a security interest, mortgage, lien, hypothec,
pledge, hypothecation, assignment, charge or security,
including arising under or by operation of any Applicable
Laws, including any banking legislation, trust or deemed trust
(whether contractual, statutory or otherwise arising), any
easement, agreement, reservation, right of way, restriction,
encroachment, burden, bond, guarantee or any other right or
claim of others of any kind whatever or any restrictive
covenant or other agreement, restriction or limitation on
title or use;
(bb) "NEW BULAKASHU OPTION AGREEMENT" has the meaning set out in
subsection 6.2(d);
(cc) "NEW STOCK OPTION PLAN" has the meaning set out in subsection
8.3(f);
(dd) "ORDER" means any order, (including any judicial or
administrative order and the terms of any administrative
consent) injunction, judgment, decree, ruling, writ,
assessment or arbitration award;
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(ee) "ORIGINAL BULAKASHU OPTION AGREEMENT" means the agreement
dated September 24, 2004 among Marsa Gold Corp. ("MARSA"),
Aitas Mining Company ("AITAS"), BMC and the Company pursuant
to which the Company has an option to acquire up to all of the
issued shares of BMC, as amended by an agreement dated January
18, 2005 (the "AMENDING AGREEMENT") and as it may be further
amended, restated or replaced from time to time;
(ff) "PERSON" includes any corporation, individual, partnership,
joint venture, syndicate, sole proprietorship, company, trust,
trustee, executor, administrator, or other legal personal
representatives, regulatory body or agency, government or
governmental agency, authority or entity howsoever designated
or constituted;
(gg) "PURCHASER'S SHARES" means common shares without par value in
the capital of the Purchaser;
(hh) "STOCK OPTION PLAN" means the current stock option plan of the
Purchaser;
(ii) "SUBSIDIARY" means a subsidiary within the meaning of Section
2(2) of the BCBCA and "SUBSIDIARIES" means more than one
Subsidiary;
(jj) "TAX" or "TAXES" means all federal, state, provincial,
municipal, foreign, and other taxes (including income taxes,
sales taxes, excise taxes, value added taxes, use taxes,
capital taxes, property taxes), rates, assessments, charges,
and levies, including penalties, interest, and fines with
respect thereto;
(kk) "TAX ACT" means the INCOME TAX ACT (Canada), as amended from
time to time;
(ll) "TECHNICAL INFORMATION" means all information and all know-how
owned, leased or licensed by the Company or in which the
Company has a right, title or interest, or which is otherwise
related to its assets, including:
(a) information of a scientific, technical or business
nature, whether in written, graphic, machine
readable, electronic or physical form; and
(b) maps, plans, designs, research data, research plans,
development plans, drill core samples, trade secrets,
processes, formulas, drawings, technology, computer
software and related manuals, unpatented blueprints,
flow sheets, equipment and parts lists, instructions,
manuals, records and procedures.
(mm) "TRANSACTION DOCUMENTS" means this Agreement and all agreement
or documents contemplated hereby, including but without
limitation, the Debt Settlement Agreements and the New
Bulakashu Option Agreement;
(nn) "TSX-V" means the TSX Venture Exchange; and
(oo) "WARRANTY CLAIM" means any claim against a party based on or
with respect to the inaccuracy or non-performance,
non-fulfilment or breach of any representation, warranty or
covenant made by such party under this Agreement or contained
in any document or certificate given by such party in order to
carry out the transactions provided in this Agreement.
1.2 WORDS AND TERMS ELSEWHERE DEFINED
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Any words or terms defined elsewhere in this Agreement will have the particular
meaning ascribed thereto.
1.3 CURRENCY
All references to currency in this Agreement are to Canadian dollars, unless
otherwise specifically indicated.
1.4 HEADINGS AND REFERENCES
The division of this Agreement into articles, sections and schedules and the
insertion of headings are for convenience of reference only and do not affect
the construction or interpretation of this Agreement. Unless otherwise
specified, references to Articles, Sections and Schedules are to Articles,
Sections and Schedules to this Agreement.
1.5 ACCOUNTING TERMS
All accounting terms not defined in this Agreement have those meanings generally
given them in accordance with GAAP.
1.6 CONSTRUCTION
In this Agreement:
(a) words denoting the singular include the plural and vice versa
and words denoting any gender include all genders;
(b) the word "including" will mean "including without limitation";
and
(c) any reference to a statute, law or regulation will mean the
statute or law in force as at the date of this Agreement and
any regulation in force under that statute or law, unless
otherwise expressly provided.
1.7 KNOWLEDGE
The phrase "to the knowledge" of a Person or that a Person or Persons "are not
aware of" and similar phrases, when used in this Agreement, mean the actual
knowledge of the Person, or any of the directors and officers of that Person, as
the case may be, together with the knowledge the Person, its directors or
officers should have had after making due enquiry concerning the factual matter
in question.
1.8 SCHEDULES
The following schedules attached hereto form part of this Agreement:
SCHEDULE TITLE
Schedule 2.2 Lenders' Details and Principal Amounts re: Debt
Settlement Agreements
Schedule 3.2 Centrasia Shareholders and Shareholdings as at the
Closing Date
Schedule 3.18 Centrasia Financial Statements
Schedule 3.19 Company's Accounts Payable and Other Liabilities
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SCHEDULE TITLE
Schedule 3.26 Centrasia Material Contracts
Schedule 5.2 Share Capital Structure of the Purchaser
Schedule 5.17 Baradero Financial Statements
Schedule 5.18 Purchaser's Accounts Payable and Other Liabilities
Schedule 5.24 Baradero Material Contracts
ARTICLE 2
PURCHASE AND SALE OF SHARES
2.1 PURCHASE OF CENTRASIA SHARES
On the terms and subject to the fulfilment of the conditions hereof, the
Purchaser agrees to purchase all of the Centrasia Shares from the Centrasia
Shareholders in consideration of the Acquisition Shares, payable to the
Centrasia Shareholders in proportion to the Centrasia Shares held by them all as
set out on Schedule 3.2, and the Centrasia Shareholders agree to sell their
Centrasia Shares to the Purchaser pursuant to this Agreement.
2.2 CONVERSION OF LOANS
The Purchaser has entered into a debt settlement agreement with each of the
Lenders (the "Debt Settlement Agreements") whereby the Purchaser will (a) issue
securities to the Lenders in proportion to the principal amount owing to each
Lender (the "Principal Amounts") as set out on Schedule 2.2; and (b) pay the
interest owing to each Lender (the "Interest Amounts") as set out in the Debt
Settlement Agreements by way of bank draft or certified cheque and the Lenders
will release and discharge the Company from all claims, demands, obligations,
debts and other liabilities directly or indirectly related to the Principal
Amounts and the Interest Amounts. The Purchaser's obligation to complete the
transactions contemplated by the Debt Settlement Agreements will be subject to
the concurrent completion of the transactions contemplated by this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND XXXXXXXX
Each of the Company and Xxxxxxxx hereby, jointly and severally, represents and
warrants to the Purchaser that:
3.1 INCORPORATION, EXISTENCE AND CORPORATE POWER
The Company is a company duly continued, validly subsisting and in good standing
under the BCBCA with respect to the filings of its annual returns with the
Registrar of Companies under the BCBCA and has all requisite corporate power and
capacity to own its property and assets and to carry on its business as now
being conducted by it.
3.2 SHARE CAPITAL AND CENTRASIA SHARES
Schedule 3.2 accurately describes the authorized and issued share capital of the
Company and lists all of the shareholders of the Company, and lists all options,
warrants, conversion rights or other rights granted by it for the subscription,
purchase or issuance of any unissued shares or securities of it as at the date
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hereof.
3.3 SHARE RIGHTS
The rights and privileges, restrictions and conditions attached to the shares of
the Company are as set out in its Constating Documents.
3.4 NO OPTIONS
Except as set out in Schedule 3.2, no Person has any agreement, option, warrant,
privilege or right (including a conversion or pre-emptive right) whether by law
or contract, or understandings capable of becoming an agreement or option, for
the purchase or acquisition of any shares or to create any additional class of
shares of the Company.
3.5 NO OTHER AGREEMENTS TO PURCHASE
Except as set out in Schedule 3.2, no Person has any written or oral agreement
or option or any right or privilege (whether by law or contractual) capable of
becoming an agreement or option for the purchase or acquisition from the Company
of any shares of the Company.
3.6 CONDUCTING BUSINESS
The Company is conducting its business in compliance in all material respects
with all applicable laws, rules and regulations of each jurisdiction in which
its business is carried on.
3.7 PERMITS
The Company has all permits, licenses and any similar authority necessary for
the conduct of its business as now being conducted by it, the lack of which
could materially and adversely affect its business, properties, prospects, or
financial condition and believes it can obtain, without undue burden or expense,
any similar authority for the conduct of its business. The Company is not in
default in any material respect under any of such franchises, permits, licenses
or other similar authority.
3.8 CONSTATING DOCUMENTS
The Company's Constating Documents are in the form contained in its minute book
and no modifications or alterations have been
proposed or approved by its shareholders.
3.9 VALID ISSUANCE OF COMMON SHARES
The Centrasia Shares are all duly and validly authorized and issued, fully paid
and non-assessable, and were issued in compliance
with all applicable corporate and securities laws.
3.10 CORPORATE RECORDS
The corporate records and minute books of the Company contain complete and
accurate minutes of all meetings and resolutions of its directors and
shareholders since its incorporation and all such meetings were duly called and
held. The share certificate books, register of members, register of transfers
and register of directors of the Company are complete and accurate.
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3.11 POWER, CAPACITY AND AUTHORITY OF THE COMPANY
The Company has the necessary power, capacity, right and authority to enter into
and deliver this Agreement and the other Transaction Documents, and to perform
its obligations hereunder and thereunder.
3.12 AUTHORIZATION OF THE COMPANY
All corporate action on the part of the Company and its officers, directors and
shareholders necessary for the authorization, execution and delivery of the
Transaction Documents to which it is a party, the performance of all its
obligations hereunder and thereunder and the transfer of the Centrasia Shares
being sold hereunder, has been taken or will be taken prior to the Closing,
including, without limitation, waiver of all rights of first offer or refusal,
if any.
3.13 COMMISSIONS, ETC.
Except for the finder's fee referred to in section 10.3, there are no
commissions or other remuneration payable to any broker, agent or other
intermediary who has been retained or acted for or on behalf of the Company with
respect to the sale of the Centrasia Shares by the Centrasia Shareholders to the
Purchaser hereunder.
3.14 TRANSACTION DOCUMENTS
The Transaction Documents to which the Company is a party, when executed and
delivered, will constitute legal, valid and binding obligations of the Company
enforceable against it in accordance with their respective terms, except: (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally; and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
3.15 COMPLIANCE
The execution, delivery and performance by the Company of the Transaction
Documents to which it is a party and the consummation of the transactions
contemplated thereby:
(a) are not in violation or default of its Constating Documents or
of any material instrument, judgment, order, writ, decree or
contract to which it is a party or by which it is bound or of
any material provision of any applicable federal, state or
provincial statute, rule or regulation and will not result in
any such violation or be in conflict with or constitute, with
or without the passage of time and giving of notice, a default
under any such provision, instrument, judgment, order, writ,
decree or contract; and
(b) will not result in or constitute, with or without the passage
of time and giving of notice, an event which results in the
creation of any Lien upon any assets of the Company or the
suspension, revocation, impairment, forfeiture, or nonrenewal
of any material permit, license, authorization, or approval
applicable to the Company and its business and assets.
3.16 GOVERNMENTAL CONSENTS
No consent, approval, order or authorization of, or registration, qualification,
license, permit, consent notice, designation, declaration or filing with, any
authority on the part of the Company is required in connection with the
execution, deliverance, due performance, observance and consummation of the
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transactions contemplated by the Transaction Documents and to render the
Transaction Documents valid, legal, binding and enforceable.
3.17 APPROVAL OF THIRD PARTIES
The Company is not under any obligation, contractual or otherwise, to give
notice or to request or obtain the consent of any Person or entity to any of the
transactions contemplated in the Transaction Documents, or to the sale,
transfer, assignment or delivery of the Centrasia Shares.
3.18 CENTRASIA FINANCIAL STATEMENTS
(a) The Centrasia Financial Statements are complete and correct in
all material respects and have been prepared in accordance
with GAAP.
(b) The Centrasia Financial Statements present fairly the
financial condition and operating results as of the dates, and
for the periods, indicated therein.
(c) Except as set forth in the Centrasia Financial Statements or
otherwise disclosed in this Agreement (including the Centrasia
Material Contracts), the Company does not have any
liabilities, contingent, accruing or otherwise, other than:
(i) liabilities incurred in the ordinary course of business
subsequent to the date of the Centrasia Financial Statements;
and (ii) obligations under contracts and commitments incurred
in the ordinary course of business and not required under GAAP
to be reflected in the Centrasia Financial Statements, which,
in both cases, individually or in the aggregate, are not
material to the financial condition or operating results of
each of the Company and have not had a material adverse impact
on the financial condition of the Company since the date of
the Centrasia Financial Statements.
3.19 ACCOUNTS PAYABLE AND OTHER LIABILITIES
Schedule 3.19 provides a complete listing for the Company's accounts payable and
all other liabilities equal to or in excess of $5,000 as at April 30, 2005, such
amounts determined in accordance with GAAP.
3.20 FINANCIAL RECORDS OF THE COMPANY
The books and records of the Company have been consistently kept in accordance
with its internal policies and do fairly and correctly set out and disclose as
at the date hereof in all material respects:
(a) its assets, liabilities and shareholders' equity, all as at
the date hereof; and
(b) its revenues and expenses for the period from the date of
Centrasia Financial Statements to the date hereof;
and all of its material financial transactions have been accurately recorded in
such books and records up to and including the date hereof. Without in any way
limiting the generality of the foregoing, all bonuses, commissions and other
payments are reflected in the books of account of the Company.
3.21 SHAREHOLDERS' LOANS
As at the date hereof there are no loans outstanding from shareholders to the
Company, other than as disclosed in Schedule 2.2.
3.22 GUARANTEES AND OTHER AGREEMENTS OF THE COMPANY
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Except as set out in the Centrasia Financial Statements or otherwise disclosed
in this Agreement (including the Centrasia Material Contracts), the Company is
not a party to or bound by any agreement of guarantee, indemnification,
assumption or endorsement or any other like commitment of the obligations,
liabilities (contingent or otherwise) or indebtedness of any Person or entity,
and the Company has not given any guarantee or warranty in respect of any
property, products or services sold or leased by it except in the ordinary
course of business.
3.23 SUBSEQUENT EVENTS
Except as disclosed herein, since the date of the Centrasia Financial
Statements, the Company has not:
(a) declared, made or committed itself to make any payment of any
dividends or any other distribution in respect of its shares;
(b) subdivided, consolidated or reclassified, or redeemed,
purchased or otherwise acquired or agreed to acquire any of
its shares;
(c) transferred, assigned, sold or otherwise disposed of any of
its assets or cancelled any debts or claims except, in each
case, in the ordinary and usual course of business;
(d) incurred or assumed any obligations or liability (fixed or
contingent), except unsecured current obligations and
liabilities incurred in the ordinary and usual course of
business;
(e) issued or sold any shares in its capital or any warrants,
bonds, debentures or its other corporate securities or issued,
granted or delivered any right, option or other commitment for
the issuance of any such securities;
(f) discharged or satisfied any Lien or paid any obligation or
Liability other than liabilities incurred in the ordinary and
usual course of business;
(g) suffered an operational loss or any extraordinary loss,
waived, surrendered or omitted to take any action in respect
of any rights of substantial value, or entered into any
commitment or transaction not in the ordinary and usual course
of business;
(h) made or otherwise authorized or agreed to any changes in any
Material Contract that could have a material effect on it;
(i) paid any bonuses, pensions, share of profits or similar
benefits (whether monetary or otherwise) or made any general
wage or salary increases in respect of personnel which it
employs, consultants, Persons contracted to provide services
to it, its directors or former directors;
(j) mortgaged, pledged, subjected to Lien, granted a security
interest in or otherwise encumbered any of its assets, whether
tangible or intangible;
(k) made any gift of money or of any of its assets to any Person;
(l) experienced any material changes in the condition (financial
or otherwise), its assets, Liabilities, operations, earnings,
business or prospects;
(m) experienced any material damage, destruction or loss, labour
trouble or other events, development or condition (whether or
not covered by insurance) which has or may have a material
affect on its assets, business or future prospects;
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(n) made any payment, discharge or satisfaction of any Lien,
Liability or obligation (whether absolute, accrued, contingent
or otherwise, and whether due or to become due) other than
payment of accounts payable and tax liabilities incurred in
the ordinary and normal course business and consistent with
past practice;
(o) made any licence, sale, assignment, transfer, disposition,
pledge, mortgage of or granting a security interest or other
Lien on or over any of its assets, other than in the ordinary
and normal course of business;
(p) made any write-off as uncollectible of any accounts receivable
or any portion thereof;
(q) had any cancellation of any debts or claims or any amendment,
termination or waiver of any rights of value;
(r) made any loan to, or engaged in any other transaction with,
any of its employees, officers or directors or former
employees, officers or directors;
(s) made any capital expenditures or commitments that have not
been consented to by the Purchaser;
(t) made any change in the accounting or tax practices followed by
it; or
(u) authorized, agreed or otherwise become committed to do any of
the foregoing.
3.24 CONDUCT OF BUSINESS
The Company's business has been carried on in the ordinary and normal course of
business since the date of the Centrasia Financial Statements and there has been
no event or circumstance which would constitute a material adverse change in or
to its business.
3.25 TECHNICAL INFORMATION
The Company has provided the Purchaser with a true and complete copy of all
material Technical Information in its control or
possession.
3.26 CENTRASIA MATERIAL CONTRACTS
The Centrasia Material Contracts are listed and briefly described in Schedule
3.26 to this Agreement and the Company has fulfilled and performed all of its
obligations which are necessary to be fulfilled or performed as of this date,
and is capable of fulfilling and performing its obligations thereunder. The
Company has provided to the Purchaser a true and complete copy of each material
contract to which it is a party as listed and described in Schedule 3.26 and all
amendments thereto. The Company and Xxxxxxxx are not aware of any intention on
the part of any of the other parties thereto to terminate or materially alter
any of the Centrasia Material Contracts to which it is a party.
3.27 NO OTHER AGREEMENTS
Other than the Centrasia Material Contracts described in Schedule 3.26, there
are no agreements, letters of intent, commitments or understandings, to which
the Company is a party which:
(a) involve partnerships, joint ventures, or licensing of its
assets or its interest in the Original Bulakashu Option
Agreement or New Bulakashu Option Agreement; or
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(b) are not on arm's length terms or are in any way otherwise than
in the ordinary and normal course of business.
3.28 NO DEFAULTS UNDER CENTRASIA MATERIAL CONTRACTS
The Company is not, nor to the best of the knowledge of the Company and Xxxxxxxx
is any other party, in default or breach in any material respect of any of the
Centrasia Material Contracts and there exists no state of facts as of the date
hereof which after notice or lapse of time or both would constitute such a
default or breach by the Company and all the Centrasia Material Contracts are in
good standing and in full force and effect and the Company is entitled to all
rights and benefits thereunder and has not assigned, promised to assign,
encumbered, impaired or otherwise disposed of any rights or benefits or its
entitlement thereto.
3.29 SHAREHOLDERS AGREEMENTS
There are no shareholders' agreements or other agreements governing the voting,
holding, transfer or sale of the Company's shares or the management of the
affairs of the Company.
3.30 LITIGATION
Except as disclosed herein:
(a) there is no action, suit, claim, proceeding or investigation
outstanding, or, to the best of the knowledge of the Company
and Xxxxxxxx, currently threatened against the Company which
questions, undermines or jeopardizes the validity of the
Transaction Documents or the right of the Company to enter
into any of them, or to consummate the transactions
contemplated thereunder, or which might result, either
individually or in the aggregate, in any material adverse
changes in the assets, condition or affairs of the Company,
financially or otherwise, or any change in the current equity
ownership of the Company, nor is the Company or Xxxxxxxx aware
that there is any basis for the foregoing;
(b) the Company is not a party or subject to the provisions of any
order, rule, writ, injunction, judgment or decree of any court
or government agency or instrumentality; and
(c) there is no action, suit, claim, proceeding or investigation
by the Company currently outstanding or which the Company
intends to initiate.
3.31 SUBSIDIARIES AND AFFILIATES
The Company presently does not own or Control, directly or indirectly, any
interest in any other company, association, partnership,
joint venture or other business entity.
3.32 NO OPTIONS ON ASSETS
Other than as provided herein, there is no agreement, option, understanding or
commitment, or any right or privilege capable of becoming an agreement, for the
purchase from the Company of its business or any of its assets.
3.33 NON-ARMS LENGTH TRANSACTIONS
The Company has not since the date of the Centrasia Financial Statements made
any payment or loan to, or borrowed any moneys from or is otherwise indebted to,
any officer, director, employee, shareholder or any other Person not dealing at
arm's length with it or any Affiliates or Associate of any of the foregoing,
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except (a) as reflected in the Centrasia Financial Statements; (b) usual
employee reimbursements and compensation paid in the ordinary course of
business; and (c) as disclosed in this Agreement or in the documents disclosed
in this Agreement.
3.34 ENVIRONMENTAL MATTERS
Conditions on and relating with respect to all past and current operations of
the Company, if any, are in material compliance with all applicable laws,
regulations and orders relating to environmental matters including but not
limited to reclamation, rehabilitation, waste disposal and storage.
3.35 OTHER REPRESENTATIONS
All statements contained in any certificate or other instrument delivered by
or on behalf of the Company and pursuant hereto or in connection with the
transactions contemplated by this Agreement shall be deemed to be
representations and warranties by the Company.
3.36 FULL DISCLOSURE
The Company has provided the Purchaser with all the information which the
Purchaser has requested for deciding whether to purchase the Centrasia Shares.
The representations and warranties given by the Company in the Transaction
Documents do not contain any untrue statement of a material fact or omit to
state a material fact necessary to make such representations and warranties not
misleading to a reasonable prospective purchaser of equity shares.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE CENTRASIA SHAREHOLDERS
Each of the Centrasia Shareholders hereby severally represents and warrants to
the Purchaser that:
4.1 NO OTHER AGREEMENTS TO PURCHASE
No Person other than the Purchaser has any written or oral agreement or option
or any right or privilege (whether by law or contractual) capable of becoming an
agreement or option for the purchase or acquisition from the Centrasia
Shareholder of any of the Centrasia Shares owned by it.
4.2 ACTION REQUIRED BY CENTRASIA SHAREHOLDER
All action on the part of the Centrasia Shareholder necessary for the
authorization, execution and delivery of the Transaction Documents, the
performance of all obligations of the Centrasia Shareholder hereunder and
thereunder and the transfer of the Centrasia Shares being sold hereunder, has
been taken or will be taken prior to the Closing, including, without limitation,
waiver of all rights of first offer or refusal, and the Transaction Documents
constitute valid, legal and binding obligations of the Centrasia Shareholder
enforceable in accordance with its terms and conditions.
4.3 TITLE OF THE CENTRASIA SHAREHOLDER
The Centrasia Shareholder owns and has good and marketable title to its
Centrasia Shares set forth opposite its name in Schedule 3.2 as the legal and
beneficial owner thereof, free of all Liens.
-15-
4.4 COMMISSIONS, ETC.
There are no commissions, finder's fees or other remuneration payable to any
broker, agent or other intermediary who has been retained or acted for or on
behalf of the Centrasia Shareholder with respect to the sale by him of his
Centrasia Shares.
4.5 COMPLIANCE
The execution, delivery and performance of the Transaction Documents by the
Centrasia Shareholder and the consummation of the transactions contemplated
thereby, including the sale of the Centrasia Shares:
(a) are not in violation or default of any material instrument,
judgment, order, writ, decree or contract to which it is a
party or by which it is bound or of any material provision of
any Applicable Law and will not result in any such violation
or be in conflict with or constitute, with or without the
passage of time and giving of notice, a default under any such
Applicable Law, provision, instrument, judgment, order, writ,
decree or contract; and
(b) will not result in or constitute, with or without the passage
of time and giving of notice, an event which results in the
creation of any Lien upon any assets of the Centrasia
Shareholder or the suspension, revocation, impairment,
forfeiture, or nonrenewal of any material permit, license,
authorization, or approval applicable to the Centrasia
Shareholder or any of its assets or properties;
except for those for which third party consents have been obtained.
4.6 GOVERNMENTAL CONSENTS
No consent, approval, order or authorization of, or registration, qualification,
designation, declaration or filing with any Governmental Authority on the part
of the Centrasia Shareholder is required in connection with the consummation of
the transactions contemplated by the Transaction Documents.
4.7 APPROVAL OF THIRD PARTIES
The Centrasia Shareholder is not under any obligation, contractual or otherwise,
to request or obtain the consent of any Person or entity to any of the
transactions contemplated in the Transaction Documents, or to the sale,
transfer, assignment or delivery of the Centrasia Shares.
4.8 RESIDENCY
With the exception of Xxxxxx, the Centrasia Shareholder is a resident of Canada
for the purposes of the Tax Act.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Company and to each of the
Centrasia Shareholders that:
5.1 INCORPORATION, EXISTENCE AND CORPORATE POWER
The Purchaser is a company duly continued, validly subsisting and in good
standing under the BCBCA with respect to the filings of its annual returns with
the Registrar of Companies under the BCBCA and has all requisite corporate power
and capacity to own its property and assets and to carry on its business as now
being conducted by it.
5.2 SHARE AND DEBT CAPITAL
Schedule 5.2 accurately describes the authorized and issued share and debt
capital of the Purchaser and all options, warrants, conversion rights or other
rights granted by the Purchaser for the subscription, purchase or issuance of
any unissued shares or securities of the Purchaser as at the date hereof.
5.3 SHARE RIGHTS
The rights and privileges, restrictions and conditions attached to the shares
of the Purchaser are as set out in its Constating Documents.
5.4 NO OPTIONS
No Person has any agreement, option, warrant, privilege or right (including a
conversion or pre-emptive right) whether by law or contract, or understandings
capable of becoming an agreement or option, for the purchase or acquisition of
any shares or to create any additional class of shares of the Purchaser, except
as set out in Schedule 5.2.
5.5 NO OTHER AGREEMENTS TO PURCHASE
No Person has any written or oral agreement or option or any right or privilege
(whether by law or contractual) capable of becoming an agreement or option for
the purchase or acquisition from the Purchaser of any shares of the Purchaser,
except as set out in Schedule 5.2.
5.6 CONDUCTING BUSINESS
The Purchaser is conducting its business in compliance in all material respects
with all applicable laws, rules and regulations of each jurisdiction in which
its business is carried on.
5.7 PERMITS
The Purchaser has all permits, licenses and any similar authority necessary for
the conduct of its business as now being conducted by it, the lack of which
could materially and adversely affect its business, properties, prospects, or
financial condition and believes it can obtain, without undue burden or expense,
any similar authority for the conduct of its business. The Purchaser is not in
default in any material respect under any of such franchises, permits, licenses
or other similar authority.
-17-
5.8 CONSTATING DOCUMENTS
The Purchaser's Constating Documents are in the form contained in its minute
book and no modifications or alterations have been
proposed or approved by its shareholders.
5.9 VALID ISSUANCE OF COMMON SHARES
The 1,986,523 issued common shares of the Purchaser as at the date hereof are
all duly and validly authorized and issued, fully paid and non-assessable, and
were issued in compliance with all applicable corporate and securities laws.
5.10 CORPORATE RECORDS
The corporate records and minute books of the Purchaser contain complete and
accurate minutes of all meetings and resolutions of its respective directors and
shareholders since its incorporation and all such meetings were duly called and
held. The share certificate books, register of members, register of transfers
and register of directors of the Purchaser are complete and accurate.
5.11 POWER, CAPACITY AND AUTHORITY OF THE PURCHASER
The Purchaser has the necessary power, capacity, right and authority to enter
into and deliver this Agreement and the other Transaction Documents, and to
perform its obligations hereunder and thereunder.
5.12 COMMISSIONS, ETC.
Except for the finder's fee referred to in section 10.3, there are no
commissions or other remuneration payable to any broker, agent or other
intermediary who has been retained or acted for or on behalf of the Purchaser
with respect to the purchase by it of the Centrasia Shares.
5.13 AUTHORIZATION
All action on the part of the Purchaser necessary for the authorization,
execution and delivery of this Agreement and the performance of all obligations
of the Purchaser hereunder has been taken or will be taken prior to the Closing,
and this Agreement constitutes a valid and legally binding obligation of the
Purchaser, enforceable in accordance with its terms, except: (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally; and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
5.14 COMPLIANCE
The execution, delivery and performance by the Purchaser of the Transaction
Documents to which it is a party and the consummation of the transactions
contemplated thereby:
(a) are not in violation or default of its Constating Documents or
of any material instrument, judgment, order, writ, decree or
contract to which it is a party or by which it is bound or of
any material provision of any applicable federal, state or
provincial statute, rule or regulation and will not result in
any such violation or be in conflict with or constitute, with
or without the passage of time and giving of notice, a default
under any such provision, instrument, judgment, order, writ,
decree or contract; and
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(b) will not result in or constitute, with or without the passage
of time and giving of notice, an event which results in the
creation of any Lien upon any assets of the Purchaser or the
suspension, revocation, impairment, forfeiture, or nonrenewal
of any material permit, license, authorization, or approval
applicable to the Purchaser and its business or operations or
any of its and assets or properties.
5.15 GOVERNMENTAL CONSENTS
Save and except as referred to in this Agreement, no consent, approval, order or
authorization of, or registration, qualification, license, permit, consent
notice, designation, declaration or filing with, any authority on the part of
the Purchaser is required in connection with the execution, deliverance, due
performance, observance and consummation of the transactions contemplated by the
Transaction Documents and to render the Transaction Documents valid, legal,
binding and enforceable.
5.16 APPROVAL OF THIRD PARTIES
Save and except as referred to in this Agreement, the Purchaser is not under any
obligation, contractual or otherwise, to give notice or to request or obtain the
consent of any Person or entity to any of the transactions contemplated in the
Transaction Documents, or to the purchase of the Centrasia Shares or the
issuance of the Acquisition Shares.
5.17 BARADERO FINANCIAL STATEMENTS
(a) The Baradero Financial Statements are complete and correct in
all material respects and have been prepared in accordance
with GAAP.
(b) The Baradero Financial Statements present fairly the financial
condition and operating results as of the dates, and for the
periods, indicated therein.
(c) Except as set forth in the most recent Baradero Financial
Statements or otherwise disclosed in this Agreement (including
the Baradero Material Contracts), the Purchaser does not have
any liabilities, contingent, accruing or otherwise, other
than: (i) liabilities incurred in the ordinary course of
business subsequent to the date of the most recent Baradero
Financial Statements; and (ii) obligations under contracts and
commitments incurred in the ordinary course of business and
not required under GAAP to be reflected in the Baradero
Financial Statements, which, in both cases, individually or in
the aggregate, are not material to the financial condition or
operating results of each of the Purchaser and have not had a
material adverse impact on the financial condition of the
Purchaser since the date of the most recent Baradero Financial
Statements.
5.18 ACCOUNTS PAYABLE AND OTHER LIABILITIES
Schedule 5.18 provides a complete listing for the Purchaser's accounts payable
and all other liabilities equal to or in excess of $5,000 as at April 30, 2005,
such amounts determined in accordance with GAAP.
5.19 FINANCIAL RECORDS OF THE PURCHASER
The books and records of the Purchaser have been consistently kept in accordance
with its internal policies and do fairly and correctly set out and disclose as
at the date hereof in all material respects:
(a) its assets, liabilities and shareholders' equity, all as at
the date hereof; and
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(b) its revenues and expenses for the period from the date of most
recent Baradero Financial Statements to the date hereof;
and all of its material financial transactions have been accurately recorded in
such books and records up to and including the date hereof. Without in any way
limiting the generality of the foregoing, all bonuses, commissions and other
payments are reflected in the books of account of the Purchaser.
5.20 SHAREHOLDERS' LOANS
As at the date hereof there are no loans outstanding from shareholders to the
Purchaser, other than as disclosed in the most recent Baradero Financial
Statements.
5.21 GUARANTEES AND OTHER AGREEMENTS OF THE PURCHASER
Except as set out in the Baradero Financial Statements or otherwise disclosed in
this Agreement (including the Baradero Material Contracts), the Purchaser is not
a party to or bound by any agreement of guarantee, indemnification, assumption
or endorsement or any other like commitment of the obligations, liabilities
(contingent or otherwise) or indebtedness of any Person or entity, and the
Purchaser has not given any guarantee or warranty in respect of any property,
products or services sold or leased by it except in the ordinary course of
business.
5.22 SUBSEQUENT EVENTS
Except as disclosed herein, since the date of the most recent Baradero Financial
Statements, the Purchaser has not:
(a) declared, made or committed itself to make any payment of any
dividends or any other distribution in respect of its shares;
(b) subdivided, consolidated or reclassified, or redeemed,
purchased or otherwise acquired or agreed to acquire any of
its shares;
(c) transferred, assigned, sold or otherwise disposed of any of
its assets or cancelled any debts or claims except, in each
case, in the ordinary and usual course of business;
(d) incurred or assumed any obligations or liability (fixed or
contingent), except unsecured current obligations and
liabilities incurred in the ordinary and usual course of
business;
(e) issued or sold any shares in its capital or any warrants,
bonds, debentures or its other corporate securities or issued,
granted or delivered any right, option or other commitment for
the issuance of any such securities;
(f) discharged or satisfied any Lien or paid any obligation or
Liability other than liabilities incurred in the ordinary and
usual course of business;
(g) suffered an operational loss or any extraordinary loss,
waived, surrendered or omitted to take any action in respect
of any rights of substantial value, or entered into any
commitment or transaction not in the ordinary and usual course
of business;
(h) made or otherwise authorized or agreed to any changes in any
Material Contract that could have a material effect on it;
-20-
(i) paid any bonuses, pensions, share of profits or similar
benefits (whether monetary or otherwise) or made any general
wage or salary increases in respect of personnel which it
employs, consultants, Persons contracted to provide services
to it, its directors or former directors;
(j) mortgaged, pledged, subjected to Lien, granted a security
interest in or otherwise encumbered any of its assets, whether
tangible or intangible;
(k) made any gift of money or of any of its assets to any Person;
(l) experienced any material changes in the condition (financial
or otherwise), its assets, Liabilities, operations, earnings,
business or prospects;
(m) experienced any material damage, destruction or loss, labour
trouble or other events, development or condition (whether or
not covered by insurance) which has or may have a material
affect on its assets, business or future prospects;
(n) made any payment, discharge or satisfaction of any Lien,
Liability or obligation (whether absolute, accrued, contingent
or otherwise, and whether due or to become due) other than
payment of accounts payable and tax liabilities incurred in
the ordinary and normal course business and consistent with
past practice;
(o) made any licence, sale, assignment, transfer, disposition,
pledge, mortgage of or granting a security interest or other
Lien on or over any of its assets, other than in the ordinary
and normal course of business;
(p) made any write-off as uncollectible of any accounts receivable
or any portion thereof;
(q) had any cancellation of any debts or claims or any amendment,
termination or waiver of any rights of value;
(r) made any loan to, or engaged in any other transaction with,
any of its employees, officers or directors or former
employees, officers or directors;
(s) made any capital expenditures or commitments;
(t) made any change in the accounting or tax practices followed by
it; or
(u) authorized, agreed or otherwise become committed to do any of
the foregoing.
5.23 CONDUCT OF BUSINESS
The Purchaser's business has been carried on in the ordinary and normal course
of business since the date of the most recent Baradero Financial Statements and
there has been no event or circumstance which would constitute a material
adverse change in or to its business.
5.24 BARADERO MATERIAL CONTRACTS
The Baradero Material Contracts are listed and briefly described in Schedule
5.24 to this Agreement and the Purchaser has fulfilled and performed all of its
obligations which are necessary to be fulfilled or performed as of this date,
and is capable of fulfilling and performing its obligations thereunder. The
Purchaser has provided to the Company a true and complete copy of each material
contract to which it is a party as listed and described in Schedule 5.24 and all
amendments thereto. The Purchaser is not aware
-21-
of any intention on the part of any of the other parties thereto to terminate
or materially alter any of the Baradero Material Contracts to which it is a
party.
5.25 NO OTHER AGREEMENTS
Other than the Baradero Material Contracts described in Schedule 5.24, there
are no agreements, letters of intent, commitments or understandings, to which
the Purchaser is a party which:
(a) involve partnerships, joint ventures, or licensing of its
assets; or
(b) are not on arm's length terms or are in any way otherwise than
in the ordinary and normal course of business.
5.26 NO DEFAULTS UNDER BARADERO MATERIAL CONTRACTS
The Purchaser is not, nor to the best of the knowledge of the Purchaser is
any other party, in default or breach in any material respect of any of the
Baradero Material Contracts and there exists no state of facts as of the date
hereof which after notice or lapse of time or both would constitute such a
default or breach by the Purchaser and all the Baradero Material Contracts are
in good standing and in full force and effect and the Purchaser is entitled to
all rights and benefits thereunder and has not assigned, promised to assign,
encumbered, impaired or otherwise disposed of any rights or benefits or its
entitlement thereto.
5.27 SHAREHOLDERS AGREEMENTS
There are no shareholders' agreements or other agreements governing the voting,
holding, transfer or sale of the Purchaser's shares or the management of the
affairs of the Purchaser.
5.28 LITIGATION
Except as disclosed herein:
(a) there is no action, suit, claim, proceeding or investigation
outstanding, or, to the best of the knowledge of the
Purchaser, currently threatened against the Purchaser which
questions, undermines or jeopardizes the validity of the
Transaction Documents to which the Purchaser is a party or the
right of the Purchaser to enter into any of them, or to
consummate the transactions contemplated thereunder, or which
might result, either individually or in the aggregate, in any
material adverse changes in the assets, condition or affairs
of the Purchaser, financially or otherwise, or any change in
the current equity ownership of the Purchaser, nor is the
Purchaser aware that there is any basis for the foregoing;
(b) the Purchaser is not a party or subject to the provisions of
any order, rule, writ, injunction, judgment or decree of any
court or government agency or instrumentality; and
(c) there is no action, suit, claim, proceeding or investigation
by the Purchaser currently outstanding or which the Purchaser
intends to initiate.
5.29 SUBSIDIARIES AND AFFILIATES
The Purchaser presently does not own or Control, directly or indirectly, any
interest in any other company, association, partnership, joint venture or other
business entity other than its newly incorporated British Virgin Islands
subsidiaries, Magellan Gold (BVI) Inc. and Magellan Holdings (BVI) Corp.
-22-
5.30 NO OPTIONS ON ASSETS
Other than as provided herein, there is no agreement, option, understanding or
commitment, or any right or privilege capable of becoming an agreement, for the
purchase from the Purchaser of its business or any of its assets.
5.31 NON-ARMS LENGTH TRANSACTIONS
The Purchaser has not since the date of the most recent Baradero Financial
Statements made any payment or loan to, or borrowed any moneys from or is
otherwise indebted to, any officer, director, employee, shareholder or any other
Person not dealing at arm's length with it or any Affiliates or Associate of any
of the foregoing, except (a) as reflected in the Baradero Financial Statements;
(b) usual employee reimbursements and compensation paid in the ordinary course
of business; and (c) as disclosed in this Agreement or in the documents
disclosed in this Agreement.
5.32 ENVIRONMENTAL MATTERS
Conditions on and relating with respect to all past and current operations of
the Purchaser, if any, are in material compliance with all applicable laws,
regulations and orders relating to environmental matters including but not
limited to reclamation, rehabilitation, waste disposal and storage.
5.33 PUBLIC COMPANY STATUS
The Purchaser is a "reporting issuer" within the meaning of the Securities Acts
of the provinces of British Columbia and Alberta and is registered as a foreign
private issuer with the Securities and Exchange Commission of the United States
of America (the "SEC"). The Purchaser is in good standing with respect to all
filings required to be made with the securities regulatory authorities of the
Provinces of British Columbia and Alberta and with the SEC. No material change
relating to the Purchaser has occurred with respect to which the requisite
material change report has not been filed and no such disclosure has been made
on a confidential basis. No securities commission or similar regulatory
authority has issued any order preventing or suspending trading in any
securities of the Purchaser or prohibiting the issue and sale of the common
shares in the capital of the Purchaser and to the knowledge of the Purchaser no
such proceedings for such purposes are pending or threatened. The Purchaser has
not received any oral or written enquiries, and to the knowledge of the
Purchaser it is not subject to any review or investigation, regarding any part
of its public disclosure record with either the TSX-V or the securities
commission of any province in Canada, or with the SEC, including any financial
statements filed or available on SEDAR and the accounting treatment used therein
from any federal, provincial, local or other government, governmental or public
department, body or other law, rule or regulation-making entity.
5.34 ISSUANCE OF ACQUISITION SHARES
The Acquisition Shares to be issued to the Centrasia Shareholders in connection
with the transactions contemplated by this Agreement will, when issued in
accordance with the terms of this Agreement, be validly issued, fully paid and
non-assessable and shall form part of a class of shares that is listed and
posted for trading on the TSX-V. Such issuance of Acquisition Shares will be
effected in such a way that it is in compliance with all applicable securities
laws.
5.35 OTHER REPRESENTATIONS
All statements contained in any certificate or other instrument delivered by or
on behalf of the Purchaser and pursuant hereto or in connection with the
transactions contemplated by this Agreement shall be deemed to be
representations and warranties by the Purchaser.
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5.36 FULL DISCLOSURE
The Purchaser has provided Centrasia Shareholders with all the information the
Centrasia Shareholders have requested in order to decide whether to sell the
Centrasia Shares. The representations and warranties of the Purchaser in the
Transaction Documents to which the Purchaser is a party do not contain any
untrue statement of material fact or omit to state a material fact necessary to
make such representations and warranties not misleading to a reasonable
prospective purchaser of equity shares.
ARTICLE 6
COVENANTS
6.1 COVENANTS OF THE PURCHASER
Between the date hereof and Closing, the Purchaser covenants and agrees that it
will:
(a) provide full access during normal business hours to its books
and records to the Company and its advisors for the purposes
of conducting due diligence. Such due diligence may include,
but is not limited to, a review of financial and business
records and accounting practices relating to the Purchaser's
business and contracts between the Purchaser and third parties
including, but not limited to, employment contracts and stock
option agreements. The Purchaser will cooperate with the
Company with respect to such due diligence;
(b) except as required by law, receive and maintain all
information received from the Company and the Centrasia
Shareholders, whether pursuant to Sections 6.2(a) or
otherwise, strictly in confidence and not disclose to any
Person or make public or authorize the disclosure of any such
information and not use such information for any purpose
except for the purpose contemplated by this Agreement unless:
(i) the specific information is now or hereafter publicly
disclosed other than as a result of breach of this provision;
(ii) the specific information was in the possession of the
Purchaser prior to the disclosure by the Purchaser; (iii) the
specific information is hereafter disclosed to the Purchaser
by a third party having no obligation of confidentiality with
regard to the information; or (iv) the specific information is
independently generated by the Purchaser without the use and
not as a consequence of the disclosure by the Company or the
Centrasia Shareholders. If this Agreement is terminated, the
Purchaser must immediately return to the others all
confidential information that was furnished to it, without
retaining any copy thereof;
(c) carry on its business in the normal and ordinary course and
not assign, sell, dispose or transfer any of its assets,
terminate, assign or breach any Baradero Material Contract,
cancel any debts or claims, incur any Liabilities, or make any
expenditure outside the ordinary course of business without
the consent of the Company, which consent will not be
unreasonably withheld;
(d) not issue any securities declare or pay any dividends or
otherwise make any distributions to its shareholders, redeem,
purchase or acquire any of its shares or alter its capital
structure in any way;
(e) use reasonable efforts to change its name to "Centrasia Mining
Corp.";
-24-
(f) use reasonable efforts to complete a non-brokered private
placement (the "Private Placement") of 4,375,000 units of the
Company at a price not less than C$0.20 per unit, each unit
consisting of one common share in the capital of the Company
and one common share purchase warrant with an exercise price
of Cdn$0.40 and expiry date of two years from the Closing
Date;
(g) engage Chase Management Ltd. to continue providing accounting,
administration and management services to the Purchaser
subsequent to the Closing;
(h) apply for all necessary regulatory and shareholder approvals;
and
(i) execute and do all such further deeds, acts, things and
assurances as may be reasonably required to complete the
transactions contemplated herein.
6.2 COVENANTS OF THE COMPANY
The Company covenants and agrees that between the date hereof and Closing it
will:
(a) provide full access during normal business hours to the books
and records of the Company to the Purchaser for the purposes
of conducting due diligence. Such due diligence may include,
but is not limited to, a review of financial and business
records and accounting practices relating to the Company's
business, the validity of any permits, licences, options and
other rights with respect to the Company's assets, and
contracts between the Company and third parties including, but
not limited to the Purchase Agreement, employment contracts,
stock option agreements and joint venture or partnership
agreements. The Company will cooperate with the Purchaser with
respect to such due diligence;
(b) except as required by law, receive and maintain all
information received from the Purchaser, whether pursuant to
sections 6.1(a) or otherwise, strictly in confidence and not
disclose to any Person or make public or authorize the
disclosure of any such information and not use such
information for any purpose except for the purpose
contemplated by this letter of intent unless: (i) the specific
information is now or hereafter publicly disclosed other than
as a result of breach of this provision; (ii) the specific
information was validly in the possession of the Company prior
to the disclosure by the Purchaser other than as a result of a
breach of confidentiality by a third party; (iii) the specific
information was or is hereafter disclosed to the Company by a
third party having no obligation of confidentiality with
regard to the information; or (iv) the specific information is
independently generated by the Company without the use and not
as a consequence of the disclosure by the Purchaser. If this
Agreement is terminated, the Company must immediately return
to the Purchaser all confidential information that was
furnished to it, without retaining any copy thereof;
(c) carry on its business in the normal and ordinary course and
not assign, sell, dispose or transfer any of its assets,
terminate, assign or breach any Centrasia Material Contract,
cancel any debts or claims, incur any Liabilities, or make any
expenditure outside the ordinary course of business without
the consent of the Purchaser, which consent will not be
unreasonably withheld;
(d) amend or restate the Original Bulakashu Option Agreement (the
"New Bulakashu Option Agreement") in form and substance
satisfactory to the Purchaser and the Purchaser's counsel
acting reasonably and will use its reasonable best efforts to
cause the other
parties to the New Bulakashu Option Agreement with the
exception of the Purchaser and the Subsidiaries, to enter into
the Amended Bulakashu Option Agreement;
(e) not issue any securities declare or pay any dividends or
otherwise make any distributions to the Centrasia
Shareholders, redeem, purchase or acquire any Centrasia Shares
or alter its capital structure in any way;
(f) obtain any necessary consents and waivers and give all
notices, which are required prior to Closing;
(g) deliver an opinion of a Kyrgyz lawyer to the Purchaser
regarding BMC and regarding the Bulakashu Property and BMC's
title thereto, in a form acceptable to the Purchaser and its
solicitors;
(h) deliver a technical report to the Purchaser on the Bulakashu
Property which complies with National Instrument 43-101
Standards of Disclosure for Mineral Projects;
(i) provide the Purchaser with all information regarding the
Company and its shareholders that may be required to obtain
regulatory approval for the transactions contemplated in the
Transaction Documents;
(j) deliver audited financial statements for BMC to the Purchaser;
and
(k) execute and do all such further deeds, acts, things and
assurances as may be reasonably required to complete the
transactions contemplated herein.
6.3 COVENANTS OF THE CENTRASIA SHAREHOLDERS
Each of the Centrasia Shareholders covenants and agrees that between now and
Closing it will:
(a) not enter into any agreement for the sale, transfer,
encumbrances or other disposition of their Centrasia Shares;
(b) comply with any escrow, hold period, seed share resale or
other restrictions applicable to the Acquisition Shares as may
be imposed by the TSX-V or under applicable securities laws;
(c) use its reasonable best efforts to cause the Company to amend
or restate the Original Bulakashu Option Agreement and enter
into the New Bulakashu Option Agreement;
(d) execute all undertakings and comply with all requirements of
the applicable securities laws, the TSX-V and any other
Persons or Governmental Authorities, which may be necessary or
reasonable to obtain the necessary approvals under applicable
securities laws and stock exchange requirements and any other
Persons or Governmental Authorities to the transactions
contemplated hereby;
(e) cooperate with the Purchaser with respect to any due diligence
performed by the Purchaser with respect to such Person; and
(f) execute and do all such further deeds, acts, things and
assurances as may be reasonably required to complete the
transactions contemplated herein.
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ARTICLE 7
RELIANCE AND SURVIVAL AND INDEMNITY
7.1 RELIANCE AND SURVIVAL - COMPANY
Each of the Company and Xxxxxxxx acknowledges and agrees that the Purchaser is
relying on the representations and warranties set forth in Article 3 in
purchasing the Centrasia Shares and agree that such representations and
warranties are true, accurate and correct and will survive the execution and
delivery of this Agreement and the Closing and will continue in full force and
effect for the benefit of the Purchaser subject to the following provisions of
this Section:
(a) except as provided in subsection 7.1(b), no Warranty Claim may
be made or brought by the Purchaser after the date which is
six months following the Closing Date; and
(b) any Warranty Claim which is based upon or relates to the
representations and warranties in Section 3.1, 3.2, 3.11, or
otherwise relates to title to the Centrasia Shares or which is
based upon intentional misrepresentation or fraud by the
Company may be made or brought by the Purchaser or any of them
at any time.
After the expiration of the period of time referred to in subsection 7.1(a),
each of the Company and Xxxxxxxx will be released from all obligations and
liabilities in respect of the representations and warranties made under Article
3 hereof or in any document or certificate given in order to carry out the
transactions contemplated hereby, except with respect to any claims made by the
Purchaser in writing prior to the expiration of such period and subject to the
rights of the Purchaser to make any claim permitted by subsection 7.1(b).
7.2 RELIANCE AND SURVIVAL - CENTRASIA SHAREHOLDERS
Each Centrasia Shareholder acknowledges and agrees that the Purchaser is relying
on the representations and warranties made by him set forth in Article 4 in
purchasing his Centrasia Shares and agrees that such representations and
warranties are true, accurate and correct and will survive the execution and
delivery of this Agreement and the Closing and will continue in full force and
effect for the benefit of the Purchaser subject to the following provisions of
this Section:
(a) except as provided in subsection 7.2(b), no Warranty Claim may
be made or brought by the Purchaser after the date which is
six months following the Closing Date; and
(b) any Warranty Claim which is based upon or relates to the
representations and warranties in Section 4.1, 4.2, 4.3 or
otherwise relates to title to his Centrasia Shares or which is
based upon intentional misrepresentation or fraud by him may
be made or brought by the Purchaser against him at any time.
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After the expiration of the period of time referred to in subsection 7.2(a),
each Centrasia Shareholder will be released from all obligations and liabilities
in respect of the representations and warranties made by him under Article 4
hereof or in any document or certificate given in order to carry out the
transactions contemplated hereby, except with respect to any claims made by the
Purchaser in writing prior to the expiration of such period and subject to the
rights of the Purchaser to make any claim permitted by subsection 7.2(b).
7.3 RELIANCE AND SURVIVAL - THE PURCHASER
The Purchaser acknowledges and agrees that the Company and the Centrasia
Shareholders are relying on the representations and warranties of the Purchaser
set forth in Article 5 (including, in the case of the Centrasia Shareholders, in
selling their respective Centrasia Shares) and agrees that such representations
and warranties are true, accurate and correct and will survive the execution and
delivery of this Agreement and the Closing and will continue in full force and
effect for the benefit of the Company and the Centrasia Shareholders subject to
the following provisions of this Section:
(a) except as provided in subsection 7.3(b), no Warranty Claim may
be made or brought by the Company, the Centrasia Shareholders
or any of them after the date which is six months following
the Closing Date; and
(b) any Warranty Claim which is based upon or relates to the
representations and warranties in Sections 5.1, 5.2 and 5.11
or which is based upon intentional misrepresentation or fraud
by the Purchaser may be made or brought by the Company, the
Centrasia Shareholders or any of them at any time.
After the expiration of the period of time referred to in subsection 7.3(a), the
Purchaser will be released from all obligations and liabilities in respect of
the representations and warranties made by the Purchaser and contained in this
Agreement or in any document or certificate given in order to carry out the
transactions contemplated hereby, except with respect to any claims made by the
Company, the Centrasia Shareholders or any one of them in writing prior to the
expiration of such period and subject to the rights of the Company, the
Centrasia Shareholders or any one of them to make any claim permitted by
subsection 7.3(b).
7.4 INDEMNITY - THE COMPANY AND XXXXXXXX
Each of the Company and Xxxxxxxx agrees to indemnify and save harmless the
Purchaser from and against all losses, damages, costs or expenses, including
legal costs as between a solicitor and his own client, suffered or incurred by
the Purchaser as a result of or in connection with any Warranty Claim.
Notwithstanding any other provision contained herein, the obligations of
indemnification by each of the Company and Xxxxxxxx pursuant to this Section 7.4
will be subject to the limitations referred to in Section 7.1 hereof with
respect to the survival of the representations and warranties by such person.
7.5 INDEMNITY - THE CENTRASIA SHAREHOLDERS
Each Centrasia Shareholder agrees to indemnify and save harmless the Purchaser
from and against all losses, damages, costs or expenses, including legal costs
as between a solicitor and his own client, suffered or incurred by the Purchaser
as a result of or in respect of such Centrasia Shareholder. Notwithstanding any
other provision contained herein, the obligations of indemnification by each
Centrasia Shareholder pursuant to this Section 7.5 will be subject to the
limitations referred to in Section 7.2 hereof with respect to the survival of
the representations and warranties by him.
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7.6 INDEMNITY - THE PURCHASER
The Purchaser agrees to indemnify and save harmless the Company, the Centrasia
Shareholders or any one of them from and against all losses, damages, costs or
expenses, including legal costs as between a solicitor and his own client,
suffered or incurred by the Company, the Centrasia Shareholders or any one of
them as a result of or in connection with any Warranty Claim. Notwithstanding
any other provision contained herein, the obligations of indemnification by the
Purchaser pursuant to this Section 7.6 will be subject to the limitations
referred to in Section 7.3 hereof with respect to the survival of the
representations and warranties by the Purchaser.
7.7 THIRD PARTY CLAIMS
(a) In the case of a Warranty Claim which may arise as a result of
claim being made by a third party (a "Claim"), the party
seeking indemnification (the "Indemnified Party") shall give
prompt notice, and in any event within 10 days, to the party
or parties from whom the Indemnified Party is seeking
indemnification (the "Indemnifying Party") of any such Claims
made upon it. If the Indemnified Party fails to give such
notice, such failure shall not preclude the Indemnified Party
from obtaining such indemnification but its right to
indemnification may be reduced to the extent that such delay
prejudiced the defence of the Claim or increased the amount of
liability or cost of defense and provided that no claim for
indemnity in respect of the breach of any representation or
warranty contained in this Agreement may be made unless notice
of such Claim has been given prior to the expiry of the
survival period applicable to such representation and warranty
pursuant to Section 7.1, 7.2 or 7.3 as applicable.
(b) The Indemnifying Party shall have the right, by notice to the
Indemnified Party given not later than 20 days after receipt
of the notice described in subsection (a), to assume the
control of the defence, compromise or settlement of the Claim,
provided that such assumption shall, by its terms, be without
cost to the Indemnified Party and provided the Indemnifying
Party acknowledges in writing its obligation to indemnify the
Indemnified Party in accordance with the terms contained in
this Section in respect of that Claim.
(c) Upon the assumption of control of any Claim by the
Indemnifying Party as set out in subsection (b), the
Indemnifying Party shall diligently proceed with the defence,
compromise or settlement of the Claim at its sole expense,
including if necessary, employment of counsel reasonably
satisfactory to the Indemnified Party and, in connection
therewith, the Indemnified Party shall co-operate fully, but
at the expense of the Indemnifying Party with respect to any
out-of-pocket expenses incurred, to make available to the
Indemnifying Party all pertinent information and witnesses
under the Indemnified Party's control, make such assignments
and take such other steps as in the opinion of counsel for the
Indemnifying Party are reasonably necessary to enable the
Indemnifying Party to conduct such defence. The Indemnified
Party shall also have the right to participate in the
negotiation, settlement or defence of any Claim at its own
expense.
(d) If the Indemnifying Party does not assume control of a Claim
as permitted in subsection (b), the Indemnified Party shall be
entitled to make such settlement of the Claim as in its sole
discretion may appear advisable, and such settlement or any
other final determination of the Claim shall be binding upon
the Indemnifying Party.
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ARTICLE 8
CONDITIONS
8.1 CONDITIONS PRECEDENT FOR BENEFIT OF THE PURCHASER
The obligations of the Purchaser under this Agreement are subject to the
fulfilment on or before the Closing of each of the following conditions which
are for the sole benefit of the Purchaser and may be waived by the Purchaser in
writing any time before Closing:
(a) the representations and warranties of the Company and the
Centrasia Shareholders in Article 3 and Article 4 being true
as of the Closing;
(b) no material adverse change shall have occurred in the business
operation, capital, financial condition or prospects of the
Company prior to Closing;
(c) the board of directors of the Company will have given all
necessary approvals for the entry into of the Transaction
Documents and all transactions contemplated thereby and the
Purchaser will have obtained all necessary approvals from its
board of directors;
(d) the Purchaser shall have completed the Private Placement;
(e) the Purchaser shall have received a fully executed copy of the
New Bulakashu Option Agreement;
(f) all corporate and other proceedings in connection with the
transactions contemplated at the Closing and all documents
incident thereto and other documents in connection with the
purchase and sale hereunder, including the Transaction
Documents, will be reasonably satisfactory in form and
substance to the Purchaser's counsel acting reasonably, and
they will have received all executed such counterpart original
and certified or other copies of such documents as they may
reasonably request;
(g) the Purchaser will be satisfied acting reasonably that the
Company and the Centrasia Shareholders have performed and
complied with all agreements, covenants, obligations and
conditions contained in this Agreement and the other
Transaction Documents that are required to be performed or
complied with by it on or before the Closing;
(h) Chase Management Ltd. shall have been engaged to continue
providing accounting, administration and management services
to the Purchaser subsequent to the Closing;
(i) the Company shall have consented to the change of the name of
the Purchaser to "Centrasia Mining Corp." and to the necessary
change of its name to any name that the Purchaser may approve;
(j) the Centrasia Shareholders shall have, as may be required by
the TSX-V or other regulatory authorities, entered into the
Surplus Securities Escrow Agreement pursuant to which certain
shares issued to them will be subject to escrow;
(k) the shareholders of the Purchaser shall have elected Xxxx
XxXxxx, Xxxx Xxxxxxxx, Xxxx Xxxxx, Xxxxxxx Xxxxxxxx, Xxxx
Xxxxxxxxx and Xxxx Xxx as the directors of the Purchaser,
subject to the Purchaser receiving consents to act from each
of the foregoing; and
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(l) the Purchaser and the Company shall have received all
applicable shareholder approvals and all consents, approvals
and other authorizations of any regulatory authorities
(including the TSX-V), shareholders or third parties to enter
into this Agreement and the other Transaction Documents and
complete the transactions contemplated herein and therein.
8.2 CONDITIONS FOR THE SOLE BENEFIT OF THE PURCHASER
The conditions precedent set forth in Section 8.1 are for the sole benefit of
the Purchaser and whether or not the Purchaser is satisfied or unsatisfied will
be determined by the Purchaser in the discretion of the Purchaser, acting
reasonably. In case any of the conditions precedent set forth in Section 8.1
have not been fulfilled on or before the Closing Date, the Purchaser may, in its
sole discretion, either: (a) terminate its obligation to purchase the Centrasia
Shares by notice in writing to the Company and the Centrasia Shareholders, in
which event, subject to Section 8.6, the Purchaser will be released from all
obligations under this Agreement; or (b) waive compliance with any such
condition if it sees fit to do so, without prejudice to its right of termination
in the event of non-fulfilment of any other condition in whole or in part.
8.3 CONDITIONS PRECEDENT FOR BENEFIT OF THE COMPANY AND THE CENTRASIA
SHAREHOLDERS
The obligations of the Company and the Centrasia Shareholders under this
Agreement are subject to the fulfilment on or before the Closing of each of the
following conditions which are for the sole benefit of the Company and the
Centrasia Shareholders and may be waived by the Company and the Centrasia
Shareholders in writing any time before Closing:
(a) the representations and warranties of the Purchaser in Article
5 being true as of the Closing Date;
(b) no material adverse change shall have occurred in the business
operation, capital, financial condition or prospects of the
Purchaser prior to Closing;
(c) the board of directors of the Purchaser will have given all
necessary approvals for the entry into of the Transaction
Documents and all transactions contemplated thereby and the
Company will have obtained all necessary approvals from its
board of directors;
(d) all corporate and other proceedings in connection with the
transactions contemplated at the Closing and all documents
incident thereto and other documents in connection with the
purchase and sale hereunder, including the Transaction
Documents, will be reasonably satisfactory in form and
substance to the Company and the Centrasia Shareholders'
counsels, and they will have received all executed such
counterpart original and certified or other copies of such
documents as they may reasonably request;
(e) the Company and the Centrasia Shareholders will be satisfied
that the Purchaser has performed and complied with all
agreements, covenants, obligations and conditions contained in
this Agreement that are required to be performed or complied
with by it on or before the Closing;
(f) the Company shall have received a fully executed copy of the
New Bulakashu Option Agreement;
(g) the Purchaser shall have amended or terminated the Stock
Option Plan established a new stock option plan (the "New
Stock Option Plan") on terms satisfactory to the Purchaser
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and the Centrasia Shareholders and their respective advisors,
reserving 20% of the common shares of the Purchaser to be
issued and outstanding following completion of the
transactions contemplated herein, accounting for the
completion of the Private Placement and Debt Settlement
Agreements;
(h) the Purchaser shall have changed its name to "Centrasia Mining
Corp.";
(i) the completion of the Private Placement;
(j) the shareholders of the Purchaser shall have elected Xxxx
XxXxxx, Xxxx Xxxxxxxx, Xxxx Xxxxx, Xxxxxxx Xxxxxxxx, Xxxx
Xxxxxxxxx and Xxxx Xxx as the directors of the Purchaser,
subject to the Purchaser receiving consents to act from each
of the foregoing; and
(k) the Purchaser and the Company shall have received all
applicable shareholder approvals and all consents, approvals
and other authorizations of any regulatory authorities
(including the TSX-V), shareholders or third parties to enter
into this Agreement and the other Transaction Documents and
complete the transactions contemplated herein and therein.
8.4 CONDITIONS FOR THE SOLE BENEFIT OF THE COMPANY AND THE CENTRASIA
SHAREHOLDERS
The conditions precedent set forth in Section 8.3 are for the sole benefit of
the Company and the Centrasia Shareholders and whether or not the Company and
the Centrasia Shareholders are satisfied or unsatisfied will be determined by
the Company and the Centrasia Shareholders in the discretion of the Centrasia
Shareholders, acting reasonably. In case any of the conditions precedent set
forth in Section 8.3 have not been fulfilled on or before the Closing Date, the
Company and the Centrasia Shareholders may, in their sole discretion, either:
(a) terminate its obligation to sell the Centrasia Shares by notice in writing
to the Purchaser, in which event, subject to Section 8.6, the Company and the
Centrasia Shareholders will be released from all obligations under this
Agreement; or (b) waive compliance with any such condition if it sees fit to do
so, without prejudice to its right of termination in the event of non-fulfilment
of any other condition in whole or in part.
8.5 TERMINATION
If the transactions contemplated hereby are not completed by September 1, 2005,
any party hereto may terminate this Agreement by
notice in writing to the other parties.
8.6 SURVIVAL OF CERTAIN PROVISIONS
Sections 6.1(b), 6.2(b), 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 10.2, and 10.3 will
survive any termination of this Agreement.
ARTICLE 9
CLOSING OBLIGATIONS
9.1 CLOSING OBLIGATIONS OF THE COMPANY AND THE CENTRASIA SHAREHOLDERS
Subject to the terms and conditions of this Agreement, the Company and the
Centrasia Shareholders covenant and agree with the Purchaser that at the
Closing, they will deliver to the Purchaser:
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(a) a certified copy of the resolutions of the directors of the
Company approving the Transaction Documents and the transfer
of all of the Centrasia Shares to the Purchaser;
(b) original share certificates representing the Centrasia Shares
either duly signed off or accompanied by duly executed powers
of attorney;
(c) executed copies of all Transaction Documents not previously
provided;
(d) copies of all notices, consents and waivers required before
Closing and not previously provided;
(e) comfort letter of the auditors of Centrasia and BMC;
(f) certificate of good standing for Centrasia issued by the
Registrar of Companies;
(g) new share certificates representing all of the Centrasia
Shares to which the Purchaser is entitled, duly and validly
registered in the name of the Purchaser or as otherwise
directed by the Purchaser;
(h) certificate of an officer of the Company certifying that (a)
all of the representations and warranties of the Company are
true as of Closing; (b) all of the covenants of the Company
have been performed; and (c) all of the conditions for the
benefit of the Company and Centrasia Shareholders have been
complied with or waived by the Company;
(i) certificate of each Centrasia Shareholder certifying that (a)
all of his representations and warranties are true as of
Closing; (b) all of his covenants have been performed; and (c)
all of the conditions for the benefit of the Company and
Centrasia Shareholders have been complied with or waived by
him;
(j) the minute books, corporate seals, accounting records, bank
account records and other corporate head office files,
documents and materials of the Company as may be requested by
the Purchaser;
(k) opinion of counsel to the Company in form and substance
acceptable to the Purchaser; and
(l) all other documents as the Purchaser have reasonably request
pursuant to the terms and conditions contained in this
Agreement.
9.2 CLOSING OBLIGATIONS OF THE PURCHASER
Subject to the terms and conditions of this Agreement, the Purchaser covenants
and agrees with the Company that at the Closing, it will deliver to the Company
and/or the Centrasia Shareholders, as the case may be:
(a) a certified copy of the resolutions of the directors of the
Purchaser approving the Transaction Documents to which the
Purchaser is a party and the purchase of the Centrasia Shares
and the issuance of the Acquisition Shares;
(b) evidence of the issuance (subject to a Surplus Securities
Escrow Agreement) of the Acquisition Shares issued to the
Centrasia Shareholders validly registered in the name of the
Centrasia Shareholders;
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(c) opinion of counsel to the Purchaser in form and substance
acceptable to the Company and the Centrasia Shareholders;
(d) executed copies of all Transaction Documents not previously
provided;
(e) confirmation of completion of the continuance and name change
of the Purchaser;
(f) confirmation of appointment of Xxxx XxXxxx, Xxxx Xxxxxxxx,
Xxxx Xxxxx, Xxxxxxx Xxxxxxxx, Xxxx Xxxxxxxxx and Xxxx Xxx as
the directors of the Purchaser, subject to the Purchaser
receiving consents to act from each of the foregoing;
(g) confirmation of completion of the Private Placement;
(h) confirmation of TSX-V approval of the transactions
contemplated hereby;
(i) share certificate for 233,338 of the Purchaser's Shares
representing the finder's fee issued to Xx. Xxxxxx Xxxxx
validly registered in the name of Xx. Xxxxxx Xxxxx or as
otherwise directed by Xx. Xxxxxx Xxxxx; and
(j) all other documents as the Company and/or the Centrasia
Shareholders have reasonably requested pursuant to the terms
and conditions of this Agreement.
ARTICLE 10
GENERAL PROVISIONS
10.1 STANDSTILL PROVISION
Except as contemplated herein, the parties hereto and their respective agents
will not, and will not permit any of their respective directors, officers,
employees or agents (including investment bankers, attorneys and accountants),
to directly or indirectly solicit, discuss, encourage, or accept any offer for
the purchase or financing of the other party hereto or the business and/or the
assets of such party, whether as a primary or back-up offer, or take any other
action with the intention or reasonably foreseeable effect of leading to any
commitment or agreement to sell or finance such party or business and/or the
assets of such party.
10.2 ANNOUNCEMENTS OR DISCLOSURE OF TRANSACTION
No press release, public notice or other publicity concerning the Purchaser's
acquisition of the Centrasia Shares will be made without the prior approval of
all parties hereto, such approval not to be unreasonably withheld or delayed.
Notwithstanding the foregoing:
(a) Subject to 10.2(b), if any disclosure or announcement is
required by law concerning the Purchaser's acquisition of the
Centrasia Shares, the party or parties making such disclosure
may do so without the prior approval of all parties hereto, so
long as they consult with such other parties as to the wording
of such disclosure or announcement prior to releasing it; and
(b) the Purchaser will be entitled, without the prior approval of
any other party hereto, to disclose a brief description of the
acquisition and a general description of the business of
Centrasia for publication in public disclosure documents.
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10.3 COSTS AND EXPENSES
Except as otherwise specifically set forth herein, each party will bear its own
expenses in connection with the matters referred to herein, including, without
limitation, the costs and expenses of all attorneys, technical specialists,
brokers, investment bankers, agents and accountants and auditors employed by
such party. The parties will indemnify each other against any claims, costs,
losses, expenses or liabilities arising from any claim for commissions, finders
fees or other compensation in connection with the contemplated transaction which
may be asserted by any Person based on any agreement or arrangement for payment
by the other party.
The parties acknowledge that a finder's fees is payable in respect of the
transactions contemplated hereby, to Xx. Xxxxxx Xxxxx, which will be paid by
way of issuance of 233,338 of the Purchaser's Shares to Xx. Xxxxxx Xxxxx on
Closing.
10.4 CONSENT TO TRANSFER SHARES
The Company hereby consents to the transfer of the Centrasia Shares to the
Purchaser.
10.5 SUCCESSORS AND ASSIGNS
This Agreement will enure to the benefit of and be binding upon the parties and
their respective permitted assigns, personal representatives, administrators,
heirs and successors.
10.6 ASSIGNMENT
The Purchaser, the Company and the Centrasia Shareholders shall not assign their
rights under this agreement to any Person without obtaining the prior written
consent of all the parties hereto.
10.7 TIME OF ESSENCE
Time will be of the essence of this Agreement and of every part hereof and no
extension or variation of this Agreement shall operate
as a waiver of this provision.
10.8 GOVERNING LAW
This Agreement will be governed by and construed in accordance with British
Columbia law and applicable Canadian law and will be treated in all respects as
a British Columbia contract.
10.9 COUNTERPARTS
This Agreement may be executed in two or more counterparts or facsimile
counterparts, each of which will be deemed an original, and all of which
together will constitute one and the same instrument.
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10.10 NOTICES
Unless otherwise specified in this Agreement, any notice or other communication
required to be given by any party pursuant to this Agreement must be in writing,
given by letter or notice delivered by hand or first-class prepaid post and
addressed, in the case of a Centrasia Shareholder, to its address set out above,
and, in the case of the Purchaser or the Company, may also be transmitted by
facsimile transmission and sent to the address and facsimile number of the
recipient set out below, marked for the attention of the representative set out
below:
(a) if to the Purchaser:
Baradero Resources Ltd.
Xxxxx 0000, 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: Xxxx XxXxxx
Facsimile: (000) 000-0000
with a copy to:
Axium Law Group
XX Xxx 00000
Xxxxx 0000, 0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attention: Xxxxxxx Varabioff
Facsimile: (000) 000-0000
(b) if to the Company
Centrasia Gold Corp.
000 - 0000 X. Xxxxxxxx Xx.,
Xxxxxxxxx, XX X0X 0X0
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxxxx
XX Xxx 00000 Xxxxxxx Xxxxxx
Xxxxx 0000, 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
10.11 DEEMED DELIVERY
All notices or other communications delivered in accordance with Section 10.10
will be deemed to have been received at the time of transmission or delivery.
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10.12 NO PARTNERSHIP
Nothing in this Agreement or in the relationship of the parties hereto will be
construed as in any sense creating a partnership among the parties or as giving
to any party any of the rights or subjecting any party to any of the creditors
of the other parties.
10.13 SEVERABILITY
The unlawfulness or invalidity or unenforceability of any provision in this
Agreement or of any covenant herein contained on the part of any party will not
affect the validity or enforceability of any other provision or covenant hereof
or herein contained and the parties hereby undertake to renegotiate in good
faith, with a view to concluding arrangements as nearly as possible the same as
those herein contained.
10.14 AMENDMENTS
No term or provision hereof may be amended except by an instrument in writing
signed by all of the parties to this Agreement.
10.15 ENTIRE AGREEMENT
This Agreement and the documents referred to herein constitute the entire
agreement among the parties and no party will be liable or bound to any other
party in any manner by any oral or written warranties, representations, or
covenants with respect to the subject matter of this Agreement, except as
specifically set forth herein or therein. The parties hereto agree that the
letter agreement dated March 17, 2005 among the parties hereto is hereby
terminated and of no further force or effect.
10.16 FURTHER ASSURANCES
The parties will execute and deliver all other appropriate supplemental
agreements and other instruments, and take any other action necessary, to give
full effect to this Agreement, and to make this Agreement legally effective,
binding and enforceable as between them, and as against third parties.
10.17 WAIVER
The failure of a party to insist upon the strict performance of any term of this
Agreement, or to exercise any right, or remedy contained in this Agreement, will
not be construed as a waiver or a relinquishment by that party for the future,
of that term, right or remedy. No waiver by any party hereto of any such
covenant will be deemed to have been made unless expressed in writing and signed
by the waiving party.
10.18 ATTORNEY FOR EACH CENTRASIA SHAREHOLDER
Each Centrasia Shareholder (other than Xxxxxxxx) hereby appoints Xxxxxxx
Xxxxxxxx, the President of the Company, as his attorney and as such authorizes
and directs him by and on behalf of and in the name of such Centrasia
Shareholder to approve, execute and deliver under seal or otherwise, any
certificates, deeds, documents, agreements, instruments or writings as may be
necessary, desirable or useful for the purpose of giving full effect to this
Agreement and as may be necessary for the Closing of the transactions
contemplated by this Agreement in the sole opinion of such attorney.
-37-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
BARADERO RESOURCES LTD. CENTRASIA GOLD CORP.
Per: Per:
/s/ XXXX XXXXXX /s/ XXXXXXX XXXXXXXX
-------------------------------- ------------------------------
Authorized Signatory Authorized Signatory
/s/ XXXXX XXXXXX
-------------------------------- ------------------------------
Authorized Signatory Authorized Signatory
SIGNED, SEALED AND DELIVERED BY
XXXX XXXXXXXX in the presence of:
/s/ XXXXX XXXX
-----------------------------------------
Signature of Witness
/s/ XXXXXXX XXXXXXXX
------------------------------
Name: Xxxxx Xxxx XXXX XXXXXXXX
------------------------------------
Address: Suite 3350, 1055
---------------------------------
Dunsmuir St., Vancouver, BC
-----------------------------------------
X0X 0X0
Occupation: Solicitor
------------------------------
SIGNED, SEALED AND DELIVERED BY
XXXX XXXXXXXXX in the presence of:
/s/ XXXXX XXXX
-----------------------------------------
Signature of Witness
/s/ XXXX XXXXXXXXX
-------------------------------
Name: Xxxxx Xxxx XXXX XXXXXXXXX
------------------------------------
Address: Suite 3350, 1055
---------------------------------
Dunsmuir St., Vancouver, BC
-----------------------------------------
X0X 0X0
Occupation: Solicitor
------------------------------
-38-
SIGNED, SEALED AND DELIVERED BY XXXX
XXXXXX in the presence of:
/s/ XXXXXX XXXXXXXXX
-----------------------------------------
Signature of Witness
/s/ XXXX XXXXXX
------------------------------
Name: Xxxxxx Xxxxxxxxx XXXX XXXXXX
------------------------------------
STAPLES 83S
Address: 0000 X. Xxxxxxxx Xxxxx
---------------------------------
Xxxx Xxxx, XX 00000
-----------------------------------------
ph. 000-000-0000
fax 000-000-0000
XX0000@xxxxxxxxxxxxxxxxx.xxx
Occupation: associate
------------------------------
SIGNED, SEALED AND DELIVERED BY
XXXX XXXXX in the presence of:
/s/ XXXXX X. XXXXXX
-----------------------------------------
Signature of Witness
/s/ XXXX XXXXX
------------------------------
Name: Xxxxx X. Xxxxxx XXXX XXXXX
------------------------------------
Address: Xxxxx 0000, 000 X. Xxxxxxx Xx.
---------------------------------
Xxxxxxxxx, X.X. X0X 0X0
-----------------------------------------
Occupation: Barrister & Solicitor
------------------------------
SIGNED, SEALED AND DELIVERED BY
XXXXXXX XXXXXXXX in the presence of:
/s/ Xxxxx X. Xxxxxx
-----------------------------------------
Signature of Witness
/s/ XXXXXXX XXXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx XXXXXXX XXXXXXXX
------------------------------------
Address: Xxxxx 0000, 000 X. Xxxxxxx Xx.
---------------------------------
Xxxxxxxxx, X.X. X0X 0X0
-----------------------------------------
Occupation: Barrister & Solicitor
------------------------------
-39-
SIGNED, SEALED AND DELIVERED BY
XXXXX XXXXXX in the presence of:
/s/ XXXXXXX XXXXXX
-----------------------------------------
Signature of Witness
/s/ XXXXX XXXXXX
------------------------------
Name: Xxxxxxx Xxxxxx XXXXX XXXXXX
------------------------------------
Address: #12 00000 00xx Xxx.
---------------------------------
Xxxxxx XX
-----------------------------------------
Occupation: Receptionist
------------------------------
SIGNED, SEALED AND DELIVERED BY
XXXXX XXXXXXXXXX in the presence of:
/s/ ART XXXXX
------------------------------------------
Signature of Witness
/s/ XXXXX XXXXXXXXXX
------------------------------
Name: Art Xxxxx XXXXX XXXXXXXXXX
------------------------------------
Address: 1400 - 000 Xxxxxxxxx Xxxxxx
---------------------------------
Xxxxxxxxx, X.X. Xxxxxx
-----------------------------------------
Occupation: Mining Executive
------------------------------
SCHEDULE 2.2
LENDERS' DETAILS AND PRINCIPAL AMOUNTS
RE: DEBT SETTLEMENT AGREEMENTS
SCHEDULE 3.2
CENTRASIA SHAREHOLDERS AS AT THE CLOSING DATE
AUTHORIZED SHARE CAPITAL
The authorized share capital of the Company consists of 10,000,000 common shares
with par value of US$0.001 per share and 10,000,000 preferred shares with par
value of US$0.001 per share.
CENTRASIA SHAREHOLDERS AND SHAREHOLDINGS AS AT THE CLOSING DATE, ALL OF WHICH
SHALL BE SUBJECT TO A SURPLUS SECURITIES ESCROW AGREEMENT AND ALL OF WHICH WERE
ACQUIRED FOR US$0.005 EACH
-------------------------------------------------------------------------------------------------------
NUMBER OF CENTRASIA NUMBER OF ACQUISITION SHARES
NAME OF CENTRASIA SHAREHOLDER SHARES TO BE RECEIVED
-------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxxx 1,600,100 1,600,100
-------------------------------------------------------------------------------------------------------
Xxxx Xxxxxxxxx 1,000,000 1,000,000
-------------------------------------------------------------------------------------------------------
Xxxx Xxxxxx 400,000 400,000
-------------------------------------------------------------------------------------------------------
Xxxx Xxxxx 175,000 175,000
-------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxxx 175,000 175,000
-------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx 175,000 175,000
-------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxxxx 175,000 175,000
-------------------------------------------------------------------------------------------------------
Total: 3,700,100 3,700,100
-------------------------------------------------------------------------------------------------------
As of the date of execution of this Agreement, the only options, warrants,
privileges, agreements, pre-emptive rights, conversion rights or other rights
for the subscription, purchase or issuance of any unissued shares or securities
of the Company or for the creation of any additional classes of shares (the
"Options") are held by certain of the Lenders. All Options will be extinguished
once the Lenders enter into the Debt Settlement Agreements.
SCHEDULE 3.18
CENTRASIA FINANCIAL STATEMENTS
SCHEDULE 3.19
COMPANY'S ACCOUNTS PAYABLE AND OTHER LIABILITIES
SCHEDULE 3.26
CENTRASIA MATERIAL CONTRACTS
o Employment Agreement dated April 1, 2004 between Xxxxxxx X. Xxxxxxxx and the
Company, as amended by an amending letter dated May 31, 2005
o The Original Bulakashu Option Agreement as amended by the Amending Agreement
o The loan agreement dated September 24, 2004 among Marsa, Aitas, BMC and the
Company
o The guarantee dated September 24, 2004 given by Marsa and Aitas in favour of
the Company
o The share pledge dated September 24, 2004 given by Marsa in favour of the
Company
o The Letter Agreement dated March 17, 2005 among the Purchaser, the Company
and the Centrasia Shareholders
o The Debt Settlement Agreements.
SCHEDULE 5.2
SHARE CAPITAL STRUCTURE OF THE PURCHASER
AUTHORIZED SHARE CAPITAL
The authorized share capital of the Purchaser consists of an unlimited number of
common shares without par value. There are currently 1,986,523 common shares
issued and outstanding.
BARADERO OPTIONS
-------------------------------------------------------------------------------------------------------------------------
NAME TYPE OF EXERCISE DATE EXPIRY DATE SHARES SHARES OUTSTANDING
OPTION PRICE GRANTED DATE EXERCISED GRANTED EXERCISED BALANCE
-------------------------------------------------------------------------------------------------------------------------
X. Xxxxxxxxxx Officer $0.19 11/26/04 11/16/07 -- 35,000 -- 35,000
-------------------------------------------------------------------------------------------------------------------------
X. Xxxxxx Director $0.19 11/26/04 11/16/07 -- 40,000 -- 40,000
-------------------------------------------------------------------------------------------------------------------------
X. Xxx Director $0.19 11/26/04 11/16/07 -- 40,000 -- 40,000
-------------------------------------------------------------------------------------------------------------------------
X. XxXxxx Director $0.19 11/26/04 11/16/07 02/25/05 40,000 40,000 nil
-------------------------------------------------------------------------------------------------------------------------
Chase Mgmt. Ltd. Mgmt. Co. $0.19 11/26/04 11/16/07 02/25/05 35,000 35,000 nil
-------------------------------------------------------------------------------------------------------------------------
The Lenders have rights under the Debt Settlement Agreements to acquire certain
securities of the Purchaser. However, the Purchaser's obligation to transfer
these securities to the Lenders is contingent upon the concurrent completion of
the transactions contemplated in this Agreement.
SCHEDULE 5.17
BARADERO FINANCIAL STATEMENTS
SCHEDULE 5.18
PURCHASER'S ACCOUNTS PAYABLE AND OTHER LIABILITIES
SCHEDULE 5.24
BARADERO MATERIAL CONTRACTS
o The sponsorship agreement dated March 11, 2005 between the Purchaser and
Canaccord Capital Corporation
o The Letter Agreement dated March 17, 2005 among the Purchaser, the Company
and the Centrasia Shareholders
