EXHIBIT 1
Amended
and Restated Share Purchase Agreement dated April 25, 2006 between IAMGold CORPORATION
(“IAMGold”), REPADRE INTERNATIONAL CORPORATION
(“Repadre” and, together with IAMGold, the “Vendors”),
BATTLE MOUNTAIN GOLD EXPLORATION CORP. (“BMGX”) and 1212500 ALBERTA LTD.
(“AlbertaCo” and, together with BMGX, the “Purchasers”).
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(a) |
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1210078
Alberta Ltd. (“Newco Canada”), a corporation incorporated and
existing under the laws of the Province of Alberta, is the legal and beneficial
owner of all right, title and interest in and to the Royalty Agreements listed
under the heading “Newco Canada” on Schedule “A” attached
hereto; |
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(b) |
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BMGX
(Barbados) Corporation (“Newco Barbados”), a corporation
incorporated and existing under the laws of Barbados, is the legal and
beneficial owner of all right, title and interest in and to the Royalty
Agreements listed under the heading “Newco Barbados” on Schedule
“A” attached hereto; |
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(c) |
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IAMGold
and BMGX entered into a Share Purchase Agreement dated November 28, 2005 (the
“Original Share Purchase Agreement”) pursuant to which
IAMGold agreed to sell to BMGX, and BMGX agreed to purchase, all of the issued
and outstanding shares of Newco Canada and Newco Barbados; |
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(d) |
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IAMGold
has transferred to Repadre all of the outstanding shares of Newco Barbados; |
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(e) |
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As
of the date hereof, IAMGold is the registered and beneficial owner of all of
the issued and outstanding shares of Newco Canada and Repadre is the registered
and beneficial owner of all of the issued and outstanding shares of Newco
Barbados; |
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(f) |
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IAMGold
has agreed to transfer to AlbertaCo, and AlbertaCo has agreed to purchase, all
of the issued and outstanding shares of Newco Canada; |
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(g) |
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Repadre
has agreed to transfer to BMGX, and BMGX has agreed to purchase, all of the
issued and outstanding shares of Newco Barbados; and |
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(h) |
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As
a result of the foregoing events, the parties hereto wish to amend, and for
ease of reference, to restate, the Original Share Purchase Agreement, all as
set forth herein. |
NOW
THEREFORE in consideration of the foregoing and the mutual agreements contained in
this Agreement (the receipt and adequacy of which are acknowledged), the parties agree as
follows.
Section 1
Defined
Terms.
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As
used in this Agreement, the following terms have the following meanings: |
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(a) |
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“Agreement” means
this amended and restated share purchase agreement and all schedules attached
to it and the expression “Section” followed by a number means
and refers to the specified Section of this Agreement. |
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(b) |
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“Authorization” means,
with respect to any Person, any order, permit, approval, waiver, licence or
similar authorization of any Governmental Entity having jurisdiction over the
Person. |
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“Average
Trading Price” means: (i) if the transactions contemplated by this
Agreement are announced on a trading day prior to the opening of, or during,
trading on such day, the weighted average trading price of the Common Shares
for the two trading days prior to the date of such announcement, the trading
day of the date of such announcement and the two trading days following the
date of such announcement, or (ii) if the transactions contemplated by this
Agreement are announced after the close of trading on such day, the weighted
average trading price of the Common Shares for the two trading days prior to
the date of such announcement and the three trading days following the date of
such announcement, on the Over the Counter Bulletin Board and on such other
stock exchange on which the Company is listed, as reported by the Wall Street
Journal and the National Quotation Bureau pink sheets. |
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(d) |
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“Barbados
Shares” means all of the issued and outstanding shares of Newco
Barbados. |
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(e) |
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“Canada
Shares” means all of the issued and outstanding shares of Newco
Canada. |
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(f) |
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“Cash
Consideration” has the meaning specified in Section 3(b)(i). |
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(g) |
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“Closing
Date” has the meaning specified in Section 7. |
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(h) |
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“Common
Shares” means the shares without nominal or par value of BMGX
designated as “common shares”. |
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(i) |
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“Debenture”means
the 6% exchangeable secured subordinated debenture in the principal amount of
US$2,000,000 issued by AlbertaCo, and guaranteed by BMGX, in the form attached
hereto as Schedule “B”, pursuant to which the holder thereof shall be
entitled to exchange all or any portion of the principal amount thereof and all
or any portion of the accrued interest thereon, for Debenture Shares at an
exchange price of $0.50 per Debenture Share. |
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(j) |
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“Debenture
Shares” means the Common Shares issuable to the holder of the
Debenture upon the exchange thereof in accordance with the terms thereof. |
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(k) |
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“Governmental
Entity” means any (i) international, multinational, national, federal,
provincial, state, municipal, local or other governmental or public department,
central bank, court, commission, board, bureau, agency or instrumentality,
domestic or foreign, (ii) any subdivision or authority of any of the foregoing,
(iii) any quasi-governmental or private body exercising any regulatory,
expropriation or taxing authority under or for the account of any of the
foregoing, and (iv) any stock exchange. |
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(l) |
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“Guarantee” means
the guarantee and support agreement dated the date hereof, executed by BMGX in
favour of IAMGold in respect of the obligations of AlbertaCo pursuant to the
Debenture. |
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(m) |
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“Guarantee
Security” means the general security agreement dated the date hereof,
executed by BMGX in favour of IAMGold in respect of the obligations of BMGX
pursuant to the Guarantee. |
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(n) |
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“Laws” means
any and all applicable laws including all statutes, codes, ordinances, decrees,
rules, regulations, municipal by-laws, judicial or arbitral or administrative
or ministerial or departmental or regulatory judgments, orders, decisions,
rulings or awards, policies, guidelines, and general principles of common and
civil law and equity, binding on or affecting the Person referred to in the
context in which the word is used. |
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(o) |
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“Lien” means
any mortgage, charge, pledge, hypothecation, security interest, assignment,
lien (statutory or otherwise), charge, title retention agreement or
arrangement, restrictive covenant or other |
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encumbrance
of any nature or any other arrangement or condition that, in substance, secures payment
or performance of an obligation. |
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(p) |
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“Person” means
a natural person, partnership, limited partnership, limited liability
partnership, corporation, limited liability corporation, joint stock company,
trust, unincorporated association, joint venture or other entity or
Governmental Entity, and pronouns have a similarly extended meaning. |
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(q) |
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“Purchased
Shares” has the meaning specified in Section 2. |
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(r) |
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“Registration
Rights Agreement” means the registration rights agreement with respect
to the preparation and filing by BMGX of one or more resale registration
statements pursuant to United States securities laws with respect to the
registration of the Common Shares and the Debenture Shares, in the form
attached hereto as Schedule “C”. |
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(s) |
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“Required
Value” means: |
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(i) |
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in
respect of Section 3(a)(iii), the number of Common Shares equal to a
quotient, where (A) the numerator is equal to 5,806,000 multiplied by
$0.50 and (B) the denominator is equal to the Average Trading Price; |
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(ii) |
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in
respect of Section 3(b)(ii), the number of Common Shares equal to a
quotient, where (A) the numerator is equal to 6,194,000 multiplied by
$0.50 and (B) the denominator is equal to the Average Trading Price. |
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(t) |
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“Royalty
Agreements” means the royalty agreements described on Schedule “A”attached
hereto. |
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(u) |
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“Share
Consideration”has the meaning specified in Section 3(b)(ii). |
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(v) |
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“Transaction
Documents” means this Agreement, the Debenture, the Registration
Rights Agreement, the Guarantee, the Guarantee Security and all other documents
and instruments stipulated by the preceding documents to be executed in
connection with the transactions contemplated herein or therein. |
Section 2
Purchase
and Sale.
Subject
to the terms and conditions of this Agreement, on the Closing Date (i) IAMGold agrees to
sell, assign and transfer to AlbertaCo and AlbertaCo agrees to
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purchase from IAMGold, the Canada
Shares and (ii) Repadre agrees to sell, assign and transfer to BMGX, and BMGX agrees to
purchase from Repadre, the Barbados Shares (together with the Canada Shares, the
“Purchased Shares”).
Section 3 Purchase
Price.
The
purchase price payable by the Purchasers for the Purchased Shares shall be an aggregate of
US$21,850,000, which shall be satisfied as follows:
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(a) |
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for
the Canada Shares, by the delivery to IAMGold of: |
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(i) |
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the
Debenture, duly executed by AlbertaCo; |
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(ii) |
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a
certified cheque or bank draft or wire transfer in the amount of US$9,947,000;
and |
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(iii) |
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a
share certificate registered in the name of IAMGold (or as IAMGold otherwise
directs), representing that number of Common Shares that is equal to the
greater of (A) 5,806,000; and (B) the Required Value; and |
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(b) |
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for
the Barbados Shares, by the delivery to Repadre of: |
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(i) |
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a
certified cheque or bank draft or wire transfer in the amount of US$3,903,000
(collectively, with the amount set forth in Section 3(a)(ii) above,
the “Cash Consideration”); and |
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(ii) |
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a
share certificate, registered in the name of Repadre (or as Repadre otherwise
directs), representing that number of Common Shares of BMGX that is equal
to the greater of (A) 6,194,000, and the Required Value (collectively
with the Common Shares set forth in Section 3(a)(iii) above, the
“Share Consideration”). |
Section 4
Vendor’s Representations and Warranties.
At
the date of this Agreement and at the Closing Date, each of the Vendors jointly and
severally represents and warrants as follows to the Purchasers and acknowledges and
confirms that the Purchasers are relying upon such representations and warranties in
connection with the purchase by the Purchasers of the Purchased Shares:
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(a) |
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Incorporation
and Qualification. IAMGold is a corporation existing under the federal laws
of Canada and has the corporate power to enter into and perform its obligations
under the Transaction Documents to which it is a party. Repadre is a
corporation incorporated and existing under the laws of Barbados and has the
corporate power to enter into |
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and
perform its obligations under the Transaction Documents to which it is a party. |
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(b) |
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Corporate
Authority. The execution and delivery of and performance by each of the
Vendors of the Transaction Documents to which it is a party have been
authorized by all necessary corporate action on the part of each of the
Vendors. The transfer of the Canada Shares to AlbertaCo has been authorized by
all necessary corporate action of Newco Canada and IAMGold, and the transfer of
the Barbados Shares to BMGX has been authorized by all necessary corporate
action of Newco Barbados and Repadre. |
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(c) |
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No
Violation or Breach. The execution and delivery of and performance by the
Vendors of the Transaction Documents: |
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(i) |
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will
not (or would not with the giving of notice, the lapse of time or the
happening of any other event or condition) result in a breach or violation
of or a conflict with, or allow any other Person to exercise any rights
under, any of the terms or provisions of the constating documents or
by-laws of either Vendor, Newco Canada or Newco Barbados; |
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(ii) |
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will
not (or would not with the giving of notice, the lapse of time or the
happening of any other event or condition) result in a breach or violation
of or a conflict with, or allow any other Person to exercise any rights
under, any contracts or instruments to which either Vendor, Newco Canada
or Newco Barbados is a party or pursuant to which any of the assets or
property of either Vendor, Newco Canada or Newco Barbados may be affected; |
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(iii) |
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will
not result in a breach of, or cause the termination or revocation of, any
authorization held by either Vendor, Newco Canada or Newco Barbados or
necessary to the ownership of the Purchased Shares; and |
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(iv) |
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will
not result in the violation of any Law. |
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(d) |
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Authorizations
and Consents. There is no requirement on the part of either Vendor, Newco
Canada or Newco Barbados to make any filing with or give any notice to any
Governmental Entity, or obtain any Authorization, in connection with the
completion of the transactions contemplated by the Transaction Documents,
except for filings and notifications required by applicable securities Laws.
All necessary |
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consents,
approvals and authorizations of any Person required under any contracts or instruments to
which either Vendor, Newco Canada or Newco Barbados is a party or pursuant to which any
of the assets or property of either Vendor, Newco Canada or Newco Barbados may be
affected in connection with the completion of the transactions contemplated by the
Transaction Documents have been obtained or will be obtained on or prior to the Closing
Date. |
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(e) |
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Execution
and Binding Obligation. At or prior to the time of Closing on the Closing
Date, each of the Transaction Documents to which either Vendor is a party will
be duly executed and delivered by the applicable Vendor and will constitute a
legal, valid and binding agreement of such Vendor, enforceable against it in
accordance with its terms, subject only to any limitation under applicable laws
relating to bankruptcy, winding-up, insolvency, arrangement and other laws of
general application affecting the enforcement of creditors’ rights, and the
discretion that a court may exercise in the granting of equitable remedies such
as specific performance and injunction. |
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(f) |
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Authorized
and Issued Capital. The Canada Shares constitute all of the issued and
outstanding shares of Newco Canada and the Barbados Shares constitute all of
the issued and outstanding shares of Newco Barbados. All of the Purchased
Shares have been issued in compliance with all applicable Laws including,
without limitation, applicable securities Laws. |
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(g) |
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No
Other Agreements to Purchase. Except for the Purchasers’ rights under
this Agreement, no Person has any written or oral agreement, option or warrant
or any right or privilege (whether by law, pre-emptive or contractual) capable
of becoming such for (i) the purchase or acquisition from either Vendor of
any of the Purchased Shares, or (ii) the purchase, subscription, allotment
or issuance of any of the unissued shares or other securities of either Newco
Canada or Newco Barbados. |
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(h) |
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Title
to Purchased Shares. The Canada Shares are owned by IAMGold, as the
registered and beneficial owner, with good title, free and clear of all Liens
other than those restrictions on transfer, if any, contained in the articles of
incorporation of Newco Canada. The Barbados Shares are owned by Repadre as the
registered and beneficial owner, with good title, free and clear of all Liens
other than those restrictions on transfer, if any, contained in the
incorporating documents of Newco Barbados. |
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(i) |
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No
Action. Neither Vendor is aware of any action, suit or proceeding, at law
or at equity, for or by any court or any federal, provincial, municipal or
other governmental department, commission, board, agency or instrumentality
which would prevent or materially adversely affect the transactions
contemplated by the Transaction Documents. |
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(j) |
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Residence. IAMGold
is not a non-resident of Canada for the purposes of the Income Tax Act (Canada). |
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(k) |
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Royalty
Agreements. At the time of closing onthe Closing Date, the principal
assets of Newco Canada will consist of the Royalty Agreements listed on
Schedule “A” attached hereto under the heading “Newco Canada” and
the principal assets of Newco Barbados will consist of the Royalty Agreements
listed on Schedule “A” attached hereto under the heading “Newco
Barbados”. To the knowledge of the Vendors, each of the Vendors, Newco
Canada and Newco Barbados has performed all of the obligations required to be
performed by each of them under the Royalty Agreements, and Newco Canada or
Newco Barbados, as applicable, is entitled to the benefits and rights of the
royalty holder pursuant to each Royalty Agreement that has been assigned to
Newco Canada or Newco Barbados, as applicable. To the knowledge of the Vendors,
each of the Royalty Agreements is in full force and effect and there exists no
default or event of default or event, occurrence, condition or act which, with
the giving of notice, the lapse of time or the happening of any other event or
condition, would become a default or event of default under any Royalty
Agreement. |
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(l) |
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Liabilities.
Except with respect to the liabilities assumed by Newco Canada and Newco
Barbados pursuant to the Royalty Agreements as a result of the transfer thereof
to Newco Canada or Newco Barbados, as applicable, no liabilities or obligations
were created in Newco Canada or Newco Barbados as a result of either
establishing Newco Canada or Newco Barbados or transferring the Royalty
Agreements into Newco Canada or Newco Barbados, as applicable (other than
liabilities arising in connection with future tax payable by Newco Canada or
Newco Barbados, as applicable, in respect of future payments received pursuant
to the Royalty Agreements), and there are no other material liabilities in
Newco Canada or Newco Barbados as of the date hereof. |
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Section 5
Purchasers Representations and Warranties.
At
the date of this Agreement and at the Closing Date, each of the Purchasers jointly and
severally represents and warrants to each of the Vendors and acknowledges and confirms
that the Vendors are relying on such representations and warranties in connection with the
sale by the Vendors to the Purchasers of the Purchased Shares:
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(a) |
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Incorporation
and Qualification. BMGX is a corporation incorporated and existing under
the laws of the state of Nevada. AlbertaCo is a corporation incorporated and
existing under the laws of Alberta. Each of the Purchasers has the corporate
power to enter into and perform its obligations under the Transaction Documents
to which it is a party, and without limiting the foregoing, BMGX has the
corporate power to issue the Share Consideration and to issue the Debenture
Shares upon the exchange, if any, of the Debenture for such Debenture Shares. |
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(b) |
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Corporate
Authority. The execution and delivery of, and performance by each Purchaser
of its obligations under each of the Transaction Documents to which it is a
party (including, without limitation, the issuance by BMGX of the Common Shares
and the allotment, reservation and, if applicable, issuance of the Debenture
Shares) have been authorized by all necessary corporate action on the part of
each of the Purchasers. |
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(c) |
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No
Violation or Breach. The execution and delivery of and performance by each
Purchaser of its obligations under the Transaction Documents to which it is a
party (including, without limitation, the issuance by BMGX of the Common Shares
and the allotment, reservation and, if applicable, issuance of the Debenture
Shares): |
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(i) |
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will
not (or would not with the giving of notice, the lapse of time or the
happening of any other event or condition) result in a breach or violation
of or a conflict with, or allow any other Person to exercise any rights
under, any of the terms or provisions of either Purchaser’s
constating documents or by-laws; |
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(ii) |
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will
not (or would not with the giving of notice, the lapse of time or the
happening of any other event or condition) result in a breach or violation
of or a conflict with, or allow any other Person to exercise any rights
under any contracts or instruments to which either Purchaser is a party;
and |
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(iii) |
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will
not result in the violation of any Law. |
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(d) |
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Execution
and Binding Obligation. At or prior to the time of Closing on the Closing
Date, each of the Transaction Documents to which a Purchaser is a party will
have been duly executed and delivered by the applicable Purchaser and will
constitute a legal, valid and binding agreement of such Purchaser, enforceable
against such Purchaser in accordance with its terms, subject only to any
limitation under applicable Laws relating to bankruptcy, winding-up,
insolvency, arrangement and other laws of general application affecting the
enforcement of creditors’ rights, and the discretion that a court may
exercise in the granting of equitable remedies such as specific performance and
injunction. |
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(e) |
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Actions,
Proceedings. There is no action, proceeding or investigation pending or
threatened against or affecting either Purchaser at law or in equity or before
any international, federal, provincial, state, municipal or other governmental
department, commission, board or agency, domestic or foreign, which could in
any way reasonably be expected to materially adversely affect either Purchaser
or the condition of either Purchaser or which questions the validity of the
purchase of the Purchased Shares by the Purchasers or the issuance of the Share
Consideration, the Debenture or the Debenture Shares, if issued, or any action
taken or to be taken by either Purchaser in connection with the Transaction
Documents. |
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(f) |
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Authorizations
and Consents. All necessary consents, approvals, authorizations, filings
and notifications of, from, with or to any Person required under any contracts
or instruments to which either Purchaser is a party or required under
applicable Laws and there is no requirement on the part of either Purchaser to
make any filing with or give any notice to any Governmental Entity, or to
obtain any Authorization, in connection with the completion of the transactions
contemplated by the Transaction Documents, except for filings and notifications
required by applicable securities Laws, all of which have been made. |
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(g) |
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Authorized
and Issued Capital. The authorized capital of BMGX consists of 200,000,000
shares of common stock, $.001 par value per share, and 10,000,000 shares of
preferred stock, $.001 par value per share, of which, (i) at this date,
42,530,000Common Shares, and no preferred shares, have been issued and
are outstanding as fully paid and non-assessable, and (ii) at the Closing
Date not more than |
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85,000,000
Common Shares and no preferred shares, will be issued and outstanding as fully paid and
non-assessable. As of the date hereof and on the Closing Date, all of the issued
and outstanding shares of AlbertaCo will be legally and beneficially owned by BMGX. |
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(h) |
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Common
Shares. Upon issuance, the Share Consideration will be duly authorized and
validly issued as fully paid and non-assessable Common Shares, and, at the time
of closing on the closing Date, each of the Vendors will acquire good and valid
title to that portion of the Share Consideration to which it is entitled
pursuant to Section 3 free and clear of any Liens. There are no
outstanding contractual obligations of BMGX restricting the transfer or
requiring the registration or sale of any Common Shares, or granting any
pre-emptive or anti-dilutive right or any other rights, subscriptions, calls,
commitments, warrants, options or other agreements that give any Person the
right to purchase, subscribe for, or otherwise receive or be issued any Common
Shares or any security convertible into or exchangeable for any Common Shares. |
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(i) |
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Debenture
Shares. On the Closing Date, 4,000,000 Debenture Shares will be allotted
and reserved for issuance, upon the exchange, if any, of the Debenture for all
or part of such Debenture Shares. Upon issuance, the Debenture Shares will be
duly authorized and validly issued as fully paid and non-assessable Common
Shares of BMGX, and the holder of the Debenture will acquire good and valid
title to such Debenture Shares, free and clear of any liens. |
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(j) |
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Investment
Canada Act. AlbertaCo is not a non-Canadian within the meaning of the Investment
Canada Act (Canada). |
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(k) |
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Securities
Laws. ThePurchasers are acquiring the Canada Shares or Barbados
Shares, as the case may be, as principals and not as agents, and are acquiring
such Canada Shares or Barbados Shares, as the case may be, for investment
purposes only and not with a view to resale or distribution. AlbertaCo is not a
non-resident person (as defined in Section 116 of the Income Tax Act (Canada))
and confirms that the purchase of the Purchased Shares is exempt from the
registration and prospectus requirements of applicable securities Laws in
Canada. BMGX further confirms that it is an “accredited investor” (as
such term is defined in Rule 501(a) under the U.S. Securities Act of 1933, as
amended (the “U.S. Securities Act”)) and that the Barbados
Shares will be held by BMGX solely for its own account for investment purposes
only, and not with a view to or for any resale, subdivision or |
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distribution
of any part thereof into the United States or to a U.S. person (as such terms are defined
in Regulation S under the U.S. Securities Act) and has no plans to enter into and has not
entered into any contract, undertaking or agreement to do anything inconsistent with the
foregoing. |
Section 6
Conditions of Closing.
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(w) |
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Conditions
for the Benefit of the Purchasers. The purchase by the Purchasers of the
Purchased Shares is subject to the following conditions to be fulfilled or
performed on or before the Closing Date, which conditions are for the exclusive
benefit of the Purchasers and may be waived, in whole or in part, by the
Purchasers in their sole discretion: |
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(i) |
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the
covenants, representations and warranties of the Vendors contained in the
Transaction Documents shall be true as of the Closing Date with the same
force and effect as if such covenants, representations and warranties had
been made on and as of such date; |
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(ii) |
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the
Vendors shall have delivered to the Purchasers certified copies of (i) all
resolutions of the directors of each Vendor approving the execution,
delivery and performance by such Vendor of its obligations under the
Transaction Documents to which it is a party, and (ii) a resolution of the
directors of Newco Canada approving the transfer of the Canada Shares to
AlbertaCo; |
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(iii) |
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all
of the share certificates representing the Purchased Shares shall be
delivered to the Purchasers, duly endorsed for transfer to the applicable
Purchaser or accompanied by an irrevocable share transfer power of
attorney duly executed in blank by the applicable Vendor; |
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(iv) |
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as
at the Closing Date, no event or condition shall have occurred, or shall
exist, that individually or in the aggregate is or would reasonably be
expected to be material and adverse to the condition (financial or
otherwise), properties, assets, liabilities, obligations, business,
operations or prospects of either Newco Canada or Newco Barbados; and |
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(v) |
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each
of the Vendors shall have duly executed and delivered to the Purchasers
each of the Transaction Documents to which to which it is a party. |
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All
obligations of the Vendors, or either of them, under this Agreement shall be joint and
several obligations of the Vendors. |
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(x) |
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Conditions
for the Benefit of the Vendors. The sale by the Vendors of the Purchased
Shares is subject to the following conditions to be fulfilled or performed on
or before the Closing Date, which conditions are for the exclusive benefit of
the Vendors and may be waived, in whole or in part, by the Vendors in their
sole discretion: |
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(i) |
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the
covenants, representations and warranties of the Purchasers contained in the
Transaction Documents shall be true as of the Closing Date with the same
force and effect as if such covenants, representations and warranties had
been made on and as of such date; |
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(ii) |
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each
Purchaser shall deliver to the Vendor a certified copy of a resolution of
the directors of such Purchaser approving, among other things, the
execution, delivery and performance by such Purchaser of its obligations
under the Transaction Documents to which it is a party and, in the case of
BMGX, authorizing the issuance of the Common Shares to the Vendors,
allotting and reserving for issuance 4,000,000 Debenture Shares and
approving the issuance of the Debenture Shares upon the exchange of the
Debenture in accordance with the terms thereof; |
|
|
(iii) |
|
the
Purchasers shall deliver the share certificates representing the Share
Consideration, with such Common Shares registered in the names of the
Vendors in accordance with Section 3, or as the Vendors may otherwise
direct; |
|
|
(iv) |
|
as
at the Closing Date, no event or condition shall have occurred, or shall
exist, that individually or in the aggregate is or would reasonably be
expected to be material and adverse to the condition (financial or
otherwise), properties, assets, liabilities, obligations, business,
operations or prospects of the Purchasers; and |
|
|
(v) |
|
each
of the Purchasers shall have duly executed and delivered to the Vendors
each of the Transaction Documents to which it is a party. |
-14-
|
All
obligations of the Purchasers, or either of them, under this Agreement shall be joint and
several obligations of the Purchasers. |
Section 7 Closing.
The
completion of the transaction of purchase and sale contemplated by this Agreement shall
take place at the offices of Stikeman Xxxxxxx XXX, Xxxxx 0000, Xxxx Xxxxx, 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, B.C., at 9:30 a.m. (Vancouver time) on the date hereof or at such other
place, on such other date and such other time as may be agreed upon in writing by the
parties (the “Closing Date”).
Section 8
Deliveries.
Subject
to the satisfaction or waiver by the relevant party of the conditions of closing, on the
Closing Date, the Vendors shall deliver actual possession of the Purchased Shares to the
Purchasers and upon such delivery, the Purchasers shall pay the Cash Consideration and
deliver the Share Consideration and the Debenture to the Vendors, all in accordance with
Section 3.
Section 9 Survival
of Covenants, Representations and Warranties.
|
(a) |
|
The
covenants, representations and warranties of the Vendors contained in this
Agreement and in any certificates or documents delivered pursuant to or in
connection with the transactions contemplated by this Agreement shall survive
the closing of the purchase and sale of the Purchased Shares and,
notwithstanding such closing, and regardless of any investigation by or on
behalf of the Purchasers, shall continue in full force and effect for the
benefit of the Purchasers without limitation of time, subject only to
applicable limitation periods imposed by Law. |
|
(b) |
|
The
covenants, representations and warranties of the Purchasers contained in this
Agreement and in any certificates or documents delivered pursuant to or in
connection with the transactions contemplated by this Agreement shall survive
the closing of the purchase and sale of the Purchased Shares and,
notwithstanding such closing, and regardless of any investigation by or on
behalf of the Vendors, shall continue in full force and effect for the benefit
of the Vendors without limitation of time, subject only to applicable
limitation periods imposed by Law. |
Section 10 Time of
the Essence.
Time
shall be of the essence of this Agreement.
-15-
Section 11
Enurement.
This
Agreement shall become effective when executed by the Vendors and the Purchasers and after
that time shall be binding upon and enure to the benefit of the parties hereto and their
respective successors and assigns. Neither this Agreement nor any of the rights or
obligations under this Agreement shall be assignable or transferable by any party hereto
without the consent of the other parties hereto.
Section 12 Entire
Agreement.
The
Transaction Documents constitute the entire agreement between the parties hereto with
respect to the transactions contemplated herein and therein and supersede all prior
agreements, understandings, negotiations and discussions, whether oral or written, of the
parties with respect to the subject matter hereof and thereof. There are no
representations, warranties, covenants, conditions or other agreements, express or
implied, collateral, statutory or otherwise, between the parties in connection with the
subject matter of the Transaction Documents, except as specifically set forth herein and
therein. The parties are not, and will not, relying upon any other information, discussion
or understanding in entering into and completing the transactions contemplated by the
Transaction Documents.
Section 13 Waiver.
|
(a) |
|
No
waiver of any of the provisions of this Agreement shall be deemed to constitute
a waiver of any other provision (whether or not similar), nor shall any such
waiver be binding unless executed in writing by the party to be bound by the
waiver. |
|
(b) |
|
No
failure on the part of any Vendor or Purchaser to exercise, and no delay in
exercising any right under this Agreement shall operate as a waiver of such
right; nor shall any single or partial exercise of any such right preclude any
other or further exercise of such right or the exercise of any other right. |
Section 14 Further
Assurances.
Each
of the parties hereto covenants and agrees to do such things, to attend such meetings and
to execute such further documents and assurances as may be deemed necessary or advisable
from time to time in order to carry out the terms and conditions of this Agreement in
accordance with their true intent.
Section 15
Severability.
If
any provision of this Agreement shall be determined to be illegal, invalid or
unenforceable by any court of competent jurisdiction from which no appeal exists or
-16-
is taken, such provision shall be
severed from this Agreement and the remaining provisions shall continue in full force and
effect.
Section 16
Governing Law.
This
Agreement shall be governed by and interpreted and enforced in accordance with the laws of
the Province of British Columbia and the federal laws of Canada applicable therein.
Section 17 Public
Announcements.
Prior
to the Closing Date no party hereto shall make, or cause to be made, any press release or
public announcement in respect of this Agreement, or the transactions contemplated hereby,
or otherwise communicate with any news media without prior approval of the other parties
hereto, unless such disclosure is required by Law (in which event the party obliged to
make such disclosure shall consult with the other party prior to making such disclosure).
The parties hereto shall cooperate, using commercially reasonable efforts, as to the
timing and contents of any such announcement, including any such announcement required by
Law. Notwithstanding the foregoing, the parties hereto shall agree, on or prior to the
Closing Date, as to the timing and contents of any press release concerning the
consummation of the transactions contemplated hereby.
Section 18 Notices,
etc.
Any
notice, direction or other communication to be given under this Agreement shall, except as
otherwise permitted, be in writing and given by delivering it or sending it by facsimile
or other similar form of recorded communication addressed:
|
(i) |
|
to
Battle Mountain Gold Exploration Corp. at: |
|
Xxx Xxxx Xxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxx 0
Xxxx, Xxxxxx 00000
Attention: President
Facsimile: (000) 000 0000 |
|
(ii) |
|
to
1212500 Alberta Ltd. at: |
|
#0000, 000 Xxxxxxxxx Xx.
Xxxxxxxxx, X.X. X0X 0X0
Attention President
Facsimile: (000) 000-0000 |
-17-
|
(iii) |
|
to
Repadre International Corporation at: |
|
Xxxxxxxx Xxxxx
Xxxx Xxxxxx
Xxxxxxxxxx
Xxxxxxxx W.I.
Attention: Xxxxxx Xxxxxxx
Facsimile: 0 (000) 000-0000
|
|
000 Xxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attention: Xxxxx Xxxx
Facsimile: (000) 000-0000 |
Section 19
Counterparts.
This
Agreement may be executed in any number of counterparts (including counterparts by
facsimile) and all such counterparts, taken together, shall be deemed to constitute one
and the same instrument.
Section 20 No
Novation.
This
Agreement is an amendment and restatement, and not a novation, of the Original Share
Purchase Agreement. The Original Share Purchase Agreement has been restated as provided
herein solely for the purposes of reflecting the amendments thereto, and all references to
the Original Share Purchase Agreement in any other document shall, as of the Closing Date,
be deemed to be referenced to this Agreement without further amendment thereto.
REMAINDER OF PAGE LEFT BLANK
INTENTIONALLY
IN
WITNESS WHEREOF the parties hereto have each executed this Amended and Restated Share
Purchase Agreement.
|
IAMGOLD CORPORATION
By: ____________________________________
Name:
Title:
REPADRE INTERNATIONAL CORPORATION
By: ____________________________________
Name:
Title:
1212500 ALBERTA LTD.
By: ____________________________________
Name:
Title:
BATTLE MOUNTAIN GOLD EXPLORATION CORP.
By: ____________________________________
Name:
Title:
|
SCHEDULE “A”
PRINCIPAL ASSETS OF NEWCO CANADA AND NEWCO BARBADOS
Royalty Agreements held by Newco
Canada
|
Mine |
Royalty Agreement |
Amending Agreement(s) |
Owner |
|
Xxxxxxxx Mine, |
|
Agreement between Corona Corporation |
|
|
|
Teck Cominco (50%) |
|
Ontario (Trust | |
and Teck Corporation (collectively, | |
| |
| |
Units to be | |
the "Payor") and Central Guaranty | |
| |
Xxxxxxx Gold Corporation | |
transferred) | |
Trust Company and Xxxxxx Xxxxx, | |
| |
(50 | |
| |
Xxxxxxxx Xxxx, Xxxx Xxxxxxxx, Xxxxx | |
| |
| |
| |
Xxxx, Xxxx Lenczer and Xxx Xxxxxx, | |
| |
| |
| |
dated November 10, 1989 | |
| |
| |
|
| |
Assignment and Transfer Agreement | |
| |
| |
| |
between 3284794 Canada Inc., Xxxxxx | |
| |
| |
| |
Xxxxx and Repadre Capital Corporation | |
| |
| |
| |
dated October 31, 1996 | |
| |
| |
|
Xxx Xxxx Mine, | |
Net Smelter Return Royalty Agreement | |
| |
Xxxxxxxx Resources | |
Quebec | |
between Xxxxxx Resources Inc. and | |
| |
| |
| |
Repadre Capital Corporation, dated | |
| |
| |
| |
April 23, 0000 | |
| |
| |
|
Xx Xxxxx Xxxx, | |
Net Smelter Return Royalty Agreement | |
Letter Agreement between Repadre | |
Glencairn Gold | |
Nicaragua | |
between Triton Minera S.A. and | |
Capital Corporation, Triton Mining | |
Corporation | |
| |
Repadre Capital Corporation, dated | |
Corporation, Black Hawk Mining | |
| |
| |
May 10, 1994 | |
Inc., and Minera Triton Argentina | |
| |
| |
| |
S.A. dated November 16, 1998 | |
| |
| |
The Net Profit Interest Royalty | |
| |
| |
| |
between Triton Minera S.A. and | |
Amending Agreement between Black | |
| |
| |
Repadre Capital Corporation, dated | |
Hawk Mining Inc., Triton Mining | |
| |
-2-
|
Mine |
Royalty Agreement |
Amending Agreement(s) |
Owner |
|
|
|
|
|
|
|
|
|
| |
| |
| |
| |
| |
| |
and Repadre Capital Corporation | |
| |
| |
| |
dated November 30, 1998 | |
| |
| |
| |
Letter Agreement between Black | |
| |
| |
| |
Hawk Mining Inc., Triton Mining | |
| |
| |
| |
Corporation, Minera Triton | |
| |
| |
| |
Argentina S.A., Triton Minera S.A. | |
| |
| |
| |
and Repadre Capital Corporation | |
| |
| |
| |
dated May 2, 2000 | |
| |
|
Lluvio de Oro Mine, | |
Net Smelter Return Royalty Agreement | |
| |
Pecamin S.A. | |
Mexico | |
between North American Metals Corp. | |
| |
| |
| |
and Repadre Capital Corporation dated | |
| |
| |
| |
July 2, 1993 | |
| |
| |
|
| |
Net Smelter Return Royalty Agreement | |
| |
| |
| |
between Compania Minera Lluvia de Oro | |
| |
| |
| |
S.A. de C.V. and Repadre Capital | |
| |
| |
| |
Corporation and dated September 9, | |
| |
| |
| |
1996 | |
| |
| |
|
Night Hawk Lake | |
Net Smelter Return Royalty Agreement | |
| |
Cross Lake Minerals | |
Property, Ontario | |
between Cross Lake Minerals Ltd., | |
| |
Ltd., East West Resource | |
| |
East West Resource Corporation, | |
| |
Corporation and Canadian | |
| |
Canadian Golden Dragon Resources Ltd. | |
| |
Golden Dragon Resources | |
| |
and Repadre Capital Corporation dated | |
| |
Ltd. | |
| |
July 31, 2001 | |
| |
| |
|
Seguenega Property, | |
Net Smelter Return Royalty Agreement, | |
Letter Agreement between Orezone | |
Orezone Resources Inc. | |
Burkina Faso | |
Schedule 1 to the Letter Agreement | |
Resources Inc. and Repadre Capital | |
| |
| |
between Orezone Resources Inc. and | |
Corporation dated January 25, 2002 | |
| |
|
-3-
|
Mine |
Royalty Agreement |
Amending Agreement(s) |
Owner |
|
|
|
|
|
|
|
|
|
| |
Repadre Capital Corporation dated | |
| |
| |
| |
October 23, 2001 | |
| |
| |
|
Royalty Agreements held by Newco
Barbados
|
Mine |
Royalty Agreement |
Amending Agreement(s) |
Owner |
|
|
|
|
|
|
|
|
|
Don Mario Mine, | |
Royalty Agreement between Empresa | |
Amendment of Royalty Agreement | |
Orvana Minerals Corp. | |
Bolivia | |
Minera Paititi S.A., Compania Minera | |
between Empresa Minera Paititi | |
| |
| |
Las Tojas S.A., Compania Minera Las | |
S.A., Compania Minera Las Tojas | |
| |
| |
Palmas S.A., Imperial Mining S.A., | |
S.A., Compania Minera Las Palmas | |
| |
| |
Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxx | |
X.X., Imperial Mining S.A. and | |
| |
| |
Xxxxxxxxxx, Xxx Xxxx, Mineral | |
Repadre International Corporation | |
| |
| |
Resources Consultants International | |
dated October 19, 1999 | |
| |
| |
S.A., Oitec International Inc., Belle | |
| |
| |
| |
Heaven Holdings S.A., Chiquitos | |
Letter Agreement between Repadre | |
| |
| |
Internacional, S.A. and Edsal | |
International Corporation and | |
| |
| |
Finance, Inc. dated February 2, 1996 | |
Orvana Minerals Corp. dated | |
| |
| |
| |
September 27, 1999 | |
| |
|
| |
Assignment Agreement between Xxxxxx | |
| |
| |
| |
Xxxxxx, Xxxxxxx Xxxxx, Xxxxx | |
| |
| |
| |
Xxxxxxxxxx, Xxx Xxxx, Mineral | |
| |
| |
| |
Resources Consultants International | |
| |
| |
| |
S.A., Oitec International Inc., Belle | |
| |
| |
| |
Heaven Holdings S.A., Chiquitos | |
| |
| |
| |
Internacional, S.A. and Edsal Finance | |
| |
| |
| |
and Repadre International Corporation | |
| |
| |
| |
dated March, 1996 | |
| |
| |
|
Lluvio de Oro Mine, | |
Net Smelter Return Royalty Agreement | |
Amendment Agreement between Great | |
Pecamin S.A. | |
Mexico | |
between Compania Minera Lluvia de Oro | |
Lakes Minerals Inc. [now Santa | |
| |
|
-4-
|
Mine |
Royalty Agreement |
Amending Agreement(s) |
Owner |
|
|
|
|
|
|
|
|
|
| |
S.A. de C.V. and Repadre | |
Xxxx Gold Inc.], Lluvia de Oro, | |
| |
| |
International Corporation dated | |
Inc., Compania Minera Lluvia de | |
| |
| |
September 9, 1996 | |
Oro, S.A. de C.V., Newmex Mining | |
| |
| |
| |
Company Ltd., Repadre | |
| |
|
| |
Option Agreement between Great Lakes | |
International Corporation, and | |
| |
| |
Minerals Inc., Compania Minera Lluvia | |
Repadre Capital Corporation dated | |
| |
| |
de Oro S.A. de C.V. and Repadre | |
January 31, 1997 | |
| |
| |
International Corporation dated | |
| |
| |
| |
September 9, 1996 | |
| |
| |
|
| |
Letter Agreement between Repadre | |
| |
| |
| |
International Corporation and Santa | |
| |
| |
| |
Xxxx Gold Inc. dated March 18, 1997 | |
| |
| |
|
| |
Net Smelter Return Royalty Agreement | |
| |
| |
| |
between Compania Minera Pangea, S.A. | |
| |
| |
| |
de C.V. and Repadre International | |
| |
| |
| |
Corporation dated June 2, 1997 | |
| |
| |
|
Xxxxxxx Deposit, | |
Letter Agreement between Repadre | |
| |
Minefinders Corporation | |
Mexico | |
International Corporation and Xxxxxxx | |
| |
Ltd. | |
| |
X.X. Xxxxxxx and Xxxx X. Xxxxxxx | |
| |
| |
| |
dated January 14, 1998 | |
| |
| |
|
| |
Letter Agreement between Minefinders | |
| |
| |
| |
Corporation Ltd., Xxxxxxx X.X. | |
| |
| |
| |
Xxxxxxx and Xxxx X. Xxxxxxx dated | |
| |
| |
| |
January 27, 1993 | |
| |
| |
|
Marmato Property, | |
Royalty Contract between Sociedad | |
Amendment Agreement between | |
Triple-S Corporation | |
Columbia | |
Minera Mistrato, S.A., Gran Colombia | |
Bolivar Goldfields Ltd., Sociedad | |
A.V.V. (by assignment) | |
| |
Resources Inc. and affiliated | |
Minera Mistrato, S.A. and Repadre | |
and Gran Colombia | |
|
-5-
|
Mine |
Royalty Agreement |
Amending Agreement(s) |
Owner |
|
|
|
|
|
|
|
|
|
| |
company, and Monrovia A.V.V. dated | |
International Corporation dated | |
Resources Inc. | |
| |
August 23, 1996 | |
July 25, 2000 | |
| |
|
| |
Assignment Agreement between Monrovia | |
| |
| |
| |
A.V.V. and Repadre International | |
| |
| |
| |
Corporation dated October, 1996 | |
| |
| |
|
| |
Assignment Agreement between GCR Gran | |
| |
| |
| |
Colombia Resources A.V.V. and Bolivar | |
| |
| |
| |
Goldfields A.V.V. dated June 1, 1999 | |
| |
| |
|
| |
Assignment Agreement between Bolivar | |
| |
| |
| |
Goldfields Ltd. and Triple-S | |
| |
| |
| |
Corporation A.V.V. dated July 25, 2000 | |
| |
|
Relief Canyon Mine, | |
Letter Agreement between Newgold, | |
Addendum to Letter Agreement dated | |
Newgold Inc. | |
Nevada | |
Inc. and Repadre International | |
October 30, 1995 between Newgold, | |
| |
| |
Corporation dated October 30, 1995 | |
Inc. and Repadre International | |
| |
| |
| |
Corporation dated October 31, 1995 | |
| |
|
| |
Net Smelter Return Royalty Agreement | |
| |
| |
| |
between Newgold, Inc. and Repadre | |
| |
| |
| |
International Corporation dated | |
| |
| |
| |
October 3, 1996 | |
| |
| |
|
| |
Net Smelter Return Royalty Agreement | |
| |
| |
| |
between Newgold, Inc. and Repadre | |
| |
| |
| |
International Corporation dated June, | |
| |
| |
| |
0000 | |
| |
| |
|
Xxxxxxx xxx Xxx | |
Xxxxxxx Agreement between | |
| |
Rio Narcea Gold Mines | |
Mine, Honduras | |
Centroamerica de Reprecentationes S. | |
| |
Ltd. | |
| |
de X.X. de C.V., Oceanic Bank and | |
| |
| |
| |
Trust Ltd. and Xxxxxxx Minerals Inc. | |
| |
| |
| |
dated September 13, 1994 | |
| |
| |
|
-6-
|
Mine |
Royalty Agreement |
Amending Agreement(s) |
Owner |
|
|
|
|
|
|
|
|
|
| |
Assignment Agreement between Oceanic | |
| |
| |
| |
Bank and Trust Limited and Repadre | |
| |
| |
| |
International Corporation dated | |
| |
| |
| |
February 6, 1998 | |
| |
| |
|
SCHEDULE “B”
DEBENTURE
SCHEDULE “C”
REGISTRATION RIGHTS AGREEMENT